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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
ONTARIO COURT OF JUSTICE
CITATION: R. v. O.A., 2024 ONCJ 541
DATE: 2024 09 23
COURT FILE No.: Toronto 4810 998 21 45001560
BETWEEN:
HIS MAJESTY THE KING
— AND —
O.A.
Before Justice Christine Mainville
Heard on April 26, 2023, and on May 14, 15 and 31, 2024
Reasons for Sentence released on September 23, 2024
Leanna Guzzo..................................................................................... counsel for the Crown
Sal Caramanna................................................................................................ counsel for O.A.
Mainville J.:
[1] I am sentencing O.A. for possessing and accessing child pornography, following his guilty plea and further to a substantial Gardiner hearing. The Crown elected to proceed by indictment.
Agreed Statement of Facts
[2] O.A. pled guilty to possessing and accessing child pornography on two occasions: between March 18 and 28, 2021, and on or about April 20, 2021.
[3] In March, he downloaded six files containing a total of 268 videos and images, as well as nine further videos, all of which meet the definition of child pornography.
[4] After a search warrant was executed at his temporary residence on April 20, 2021, 3,083 child sexual abuse images were located on devices belonging to him, of which 1,009 were unique. In other words, 2,074 were duplicates. 3,499 videos were also located, of which 1,138 were unique.
[5] Altogether, the officer in charge testified that the police located just over 1,000 unique images and just over 1,000 unique videos. These were on a laptop and a USB device.
[6] The images and videos relate to both prepubescent males and females. They range from infants to approximately age 12. They involve various sexual acts including oral penetration of children’s mouths by an adult penis; penetration of children’s anuses with an adult penis; vaginal penetration of prepubescent girls by an adult male; ejaculation of semen on children; and close up images of children’s genitalia. Some of the children are bound in ropes, others are blindfolded. The duration of the videos vary from several seconds to several minutes.
[7] I viewed a representative sample of these images and videos.
[8] The officer testified that the videos were from a New Zealand website. A person has to be invited to the site as it contains closed links, but once there, they can download many video files in one fell swoop.
[9] Some of the files located on O.A.’s devices were sorted in subfolders, but not all of them. Most subfolders were labeled with initials and some were in Arabic print. The officer had not come across any that were sorted by country or origin of video but could not exclude that some were. Some were classified as hard core or new sex.
[10] Google search terms were also located on O.A.’s laptop from late January to early February 2021. These include, chronologically: “baby gay sex”, seconds later, “kids gay sex”, then “arab gay boys sex”, “arab gay kids fuck”, “Pakistani 14 yrs gay sex”, “russion 14 years gay sex”, and “Russian gay boys under legal age”.
[11] Upon arrest, O.A. provided a statement to the police readily admitting to the child pornography and providing essentially the same explanation as he testified to before me. I will return to this explanation which is the subject of dispute in these proceedings.
Victim Impact
[12] The Crown put in evidence a Community Impact Statement (CIS) that reflects in vivid detail the impact suffered by “the Phoenix 11”, a group of survivors whose child sexual abuse was recorded and, in most cases, distributed online. Their views purport to reflect the views of a broader community of similarly situated victims.
[13] The CIS describes the emotional, physical, and economic impacts that offences such as the ones in the present case have on its victims. They make clear that child pornography offences are not victimless crimes.
[14] Victims of child abuse have to live with the reality that their images and the imagery of their abuse continues to exist and in many cases are circulated and viewed by others. If they are not, they live in constant fear that they will be. This keeps their victimization always current and leads to them having to live their lives in a perpetual state of vigilance and fear. It means they cannot escape what happened to them and it impairs each victim socially. They are powerless to permanently destroy the images of their abuse, and they are victimized over and over every time their images are sought out, watched, and retained. Many have changed their names or use a pseudonym online or in real life.
[15] The nature of this victimization has led all members of the Phoenix 11 to suffer – to varying degrees – from conditions such as complex post-traumatic stress disorder (PTSD), insomnia, nightmares, seizures, and panic attacks. They also suffer economic harm because of such things as the cost of counselling, and the general impact their trauma has had on their schooling and employment.
[16] As I will return to below, there is no doubt that these are serious offences and that denunciation and deterrence must be front and center in the sentencing analysis.
Circumstances of the Offender
[17] O.A. is a Palestinian refugee from Hebron, in the West Bank of the Palestinian Territories. He left Palestine in 2006 and found refuge in Canada in 2016. He is now 40 years old. He has since obtained his status as a permanent resident but is subject to a deportation order because of his convictions in this matter. I will return to these immigration consequences below.
[18] O.A. testified at length to his difficult upbringing. Aside from being physically and emotionally abused by his father, he explained how he was repeatedly sexually abused as a child by a family acquaintance who was occasionally accompanied by one of two other abusers. The manner of abuse – which involved dirty oil – has resulted in a medical condition called hemochromatosis (iron overload). O.A. also suffers from PTSD as a result of this abuse, which condition was first the subject of a preliminary diagnosis in 2019, prior to these events.
[19] The abuse went on from the age of about 4 to 17 (O.A. recounted how he was groomed and came to like his abuser and accept the relationship, which ended when the abuser got married). He testified that in later years, as of the age of about 14, the abuse was being recorded.
[20] He eventually had to flee his home after his homosexuality was discovered and he was forcibly confined for days then violently attacked for it, by his own father and brother. He still bears a significant scar of this attack on his head, which I witnessed.
[21] O.A. first left for Ukraine, as he was able to obtain a student visa to flee there. He lived there 10 years during which time he studied at the University of Kharkiv in physiotherapy and learned Russian. He then began working for the UN as an Arabic-Russian interpreter, and through the UN, obtained refugee status in Canada on the basis of his sexual orientation. He was homeless for some period in Ukraine in early 2013, prior to receiving status there (after he was no longer eligible for a student visa). He also found some work and an investment opportunity that led to his information being available on social media. O.A. testified that having come across this, his abuser contacted him in search of money, threatening to post videos of his abuse on a Russian site. O.A. was also ultimately swindled out of money he invested through the afore-mentioned work opportunity.
[22] O.A. landed in Sault Ste Marie in 2016. He worked cleaning a building and got a personal support worker (PSW) degree. He moved to Toronto in 2019, residing in a shelter for a few months prior to finding a place to live. He then experienced health issues that prevented him from working for some time. In late 2019, he found work in Kitchener as a physiotherapy assistant.
[23] There, he met his life partner with whom he continues to have a loving and stable relationship. His partner attended court during this sentencing hearing.
[24] O.A. then obtained work in Sioux Lookout. He was going to move there permanently with his partner when he was arrested on this matter. He has not been able to work since his arrest, having suffered from depression and having to contend with his PTSD. Aside from the hemochromatosis, he also currently has to contend with other health conditions including a damaged liver and diabetes.
[25] O.A. has made great strides in addressing his mental health issues. He meets regularly with his treating psychiatrist Dr. Jamal since April 2022. As of the date of the sentencing hearing in May 2024, they had had more than 30 meetings including psychotherapy sessions. I received a letter from Dr. Jamal who indicates that O.A. has made marked improvements in the management of his PTSD and emotional regulating skills. He has been highly engaged with treatment and will continue seeing Dr. Jamal. O.A. is maintaining hope that he can make a productive contribution to society.
[26] Dr. Jamal also opines that, based on O.A.’s history including sleep disturbances, he is at risk of worsening symptoms of flashbacks, nightmares, and disturbed sleep in some settings. This has occurred in the past when staying in a shelter or sleeping in a congregate space. There is concern that he would experience a worsening of these symptoms if he were incarcerated.
[27] O.A. has also been working with a mental health case manager with LOFT Community Services since March 2019, prior to his arrest. His case worker attended the hearing in this matter. The letter I received spoke to O.A.’s commitment to improving his personal and professional life and his constant engagement in all recommended activities and therapies. He has shown remarkable progress and determination.
[28] Seemingly as a result of his abuse, O.A. does not adhere to any faith or religion. His abuser used to teach him and his cousins religion and was perceived as a religious man. O.A. feels strongly about what he says is the denialism of homosexuality and child sexual abuse in his culture, despite its prevalence. He denounces as hypocritical how gay people in his society are treated, despite the prevalence of child abuse including same-sex child abuse.
[29] In this context, O.A. testified to his motivations for downloading the child abuse material. The gist of his explanation is that he was doing research on the prevalence of sexual abuse of children and the hypocrisy relating to it in some cultures including his own, in order to expose it and to protect himself; he was also trying to locate evidence of his own abuse. He claims that he had good intentions and was not sexually aroused by the material he located, although he accepts that his explanation does not meet the criteria for him to avail himself of the legitimate purpose defence found in s. 163.1(6) of the Criminal Code. His motivations were the subject of dispute in these proceedings. I return to this issue below.
Publication Ban on O.A.’s Identity
[30] O.A.’s own experience of sexual abuse first raises a peripheral issue on this hearing. The defence seeks a publication ban on the details of this abuse, or on O.A.’s name given privacy and safety concerns relating to the disclosure of the details of this abuse.
[31] The Crown did not challenge, and I accept the evidence that O.A. was sexually abused as a child. This abuse was described in painful and vivid detail, and O.A. was clearly deeply impacted by it. Moreover, O.A. was already receiving mental health care as a result of this abuse prior to these events. He began seeing a psychiatrist, Dr. Henderson, in May 2019, and she provisionally diagnosed him with PTSD and major depressive disorder. The PTSD diagnosis was firmed up over the course of several sessions with her through 2019 up to May 2021. The diagnosis was subsequently confirmed by Dr. Gojer in the context of a psychiatric assessment post-arrest in 2021, and again by Dr. Jamal as of 2022.
[32] The Crown consents to having O.A.’s name initialized but argues that either a sealing order or publication ban order on the details of the sexual abuse should not be made. The defence accepts that if O.A.’s name is not publicized, then it is unnecessary to impose restrictions on the details of his sexual abuse.
[33] Pending my determination of this application, I provisionally ordered that the release of any transcript of the proceedings following a request for same be subject to my approval. I have not received any such requests.
The Legal Framework
[34] The defence submits that I have both inherent and statutory jurisdiction to make the requested order.
[35] Under s. 486.5 of the Criminal Code, I may, on application of a victim or witness, order that any information that could identify the victim or witness not be published if I believe the order is in the interest of the proper administration of justice.
[36] The defence points to the fact that O.A. testified in this case, such that he is a witness and falls within the scope of this provision.
[37] I struggle with characterizing the accused – or in this case, the offender – as a witness for the purpose of this provision. Had Parliament wanted to include accused persons, it would have explicitly stated as much. One can also imagine a situation where an accused who does not testify nevertheless risks retaliation or a serious invasion of his safety or privacy by virtue of being identified. What if, in this case, someone else had testified to details of O.A.’s abuse? Why should such an accused be less deserving of protection, if similar risks arise?
[38] As a matter of basic statutory interpretation, therefore, I believe I must read “victim or witness” in its ordinary sense, as excluding the accused.
[39] I do however have jurisdiction to make the order pursuant to the Dagenais/Mentuck test which is of general application.
[40] This test was reformulated in Sherman Estate v. Donovan, 2021 SCC 25. The defence relies on my ability, pursuant to these authorities and CBC v. Manitoba, 2021 SCC 33, at para. 37, to either initialize the name of the accused or ban from publication the details of his abuse, based on competing important public interests.
[41] I note that given the serious limitation to the openness principle that is sought, I must conduct the appropriate analysis despite the Crown’s consent to the proposed order. Indeed, in CBC v. Chief of Police, 2021 ONSC 6935, the Divisional Court found that it was an error to make a publication ban order without conducting the Dagenais/Mentuck analysis, despite the fact that counsel for both parties had jointly sought a ban on the basis that a video in that case contained intimate details of sexual acts between the offender and the victim and was necessary to protect the victim. Ultimately, in that case, the video was released, but the name of the victim was protected from publication.
[42] There is a strong presumption of openness in the court’s process. Inconvenience and embarrassment are not, as a general matter, enough to overturn this presumption. That said, the Supreme Court in Sherman Estate recognized that “personal information disseminated in open court can be more than a source of discomfort and may result in an affront to a person’s dignity. Insofar as privacy serves to protect individuals from this affront, it is an important public interest and a court can make an exception to the open court principle if it is at serious risk.”
[43] The test for discretionary limits on court openness is directed at maintaining the openness presumption while offering sufficient flexibility for courts to protect other public interests where they arise. In order to succeed, the person asking a court to exercise discretion in a way that limits the open court presumption must establish that (1) court openness poses a serious risk to an important public interest; (2) the order sought is necessary to prevent this serious risk to the identified interest because reasonable alternative measures will not prevent this risk; and (3) as a matter of proportionality, the benefits of the order outweigh its negative effects.
[44] The risks identified here are to privacy and physical safety. Are they sufficiently serious to warrant setting aside the openness principle?
[45] The Crown accepts that they are, and the parties rely on the same principles that apply to protecting victims of sexual abuse more generally. Certainly, the law recognizes the public’s interest in protecting victims of crime by way of publication bans and other such measures.
[46] This is not about the sensibilities of individuals nor about the fact that exposing O.A.’s abuse is embarrassing or distressing. That would not be sufficient. As stated by the Supreme Court in Sherman Estate, “[d]ignity will be at serious risk only where the information that would be disseminated as a result of court openness is sufficiently sensitive or private such that openness can be shown to meaningfully strike at the individual’s biographical core in a manner that threatens their integrity. The question is whether the information reveals something intimate and personal about the individual, their lifestyle or their experiences.” Given the nature of the abuse O.A. suffered, that test is met here.
[47] There is also another important interest at stake in this case, beyond protecting the accused’s privacy in respect of his own victimization. There is a risk to his safety that is reflected in his refugee status on the basis of his sexual orientation, in particular given the real risk of deportation to his home country.
[48] Indeed, I accept that O.A. needs the order for his security, to protect him from intimidation and retaliation, and that there is a real and substantial risk that he would suffer harm if his identity were disclosed. That is particularly the case should O.A. eventually be deported back to Palestine. He identified his abuser – a male – in his testimony and provided many details that could lead to reprisals or simply shaming, but of a violent nature.
[49] Admittedly, there is a countervailing interest in this case, which is that the publication ban would relate not to the victims of this case, but to the offender – based on his earlier victimization. There is, as a general rule, a public interest in identifying accused persons, in particular offenders who have been found guilty as in this case, such that the presumption of innocence no longer applies. This interest is reflected in Parliament’s choice to make publication bans on identity available to victims and witnesses, but not to accused persons.
[50] Nevertheless, it is not uncommon in cases of a sexual nature where a publication ban is made under s. 486.4 to protect the victim’s identity, to also initialize the accused’s name where it may tend to identify the victim. Restrictions on accused persons’ identities are therefore not uncommon. Still, the purpose in such a case is to protect the victim, not the accused or offender.
[51] Altogether, I accept that in the particular circumstances of this case, there is a serious risk to important public interests should the accused be identified as having been the victim of the extensive abuse he suffered back in Palestine.
[52] In terms of the second prong of the test, the parties agree that initializing O.A.’s name suffices. In other words, not explicitly identifying him in this way suffices – there is no request for a broader ban relating to any information that might tend to identify him.
[53] The alternative would be to ban publication of details of O.A.’s abuse. I am of the view that the fact of the abuse itself cannot be the subject of a publication ban. That is, if the abuse O.A. suffered is going to be mitigating and thereby serve to reduce the sentence, as it should, then it should be a matter of public record. Indeed, it is a critical fact to a complete understanding of the appropriate sentence in this case.
[54] The Crown takes the position that the details of the abuse should also not be restricted from publication. It views initializing the accused’s name as more desirable than the alternative.
[55] I do not take issue with this assessment.
[56] Finally, as a matter of proportionality, the benefits of the order outweigh its negative effects.
[57] As the Supreme Court stated in Vancouver Sun (Re), 2004 SCC 43, at para. 25:
Openness is necessary to maintain the independence and impartiality of the courts. It is integral to public confidence in the justice system and the public’s understanding of the administration of justice. Moreover, openness is a principal component of the legitimacy of the judicial process and why the parties and the public at large abide by the decisions of courts.
[58] I again weigh in the balance the fact that this principle is particularly important in the case of accused persons and offenders.
[59] Nevertheless, it should be noted that an order restricting publication of the accused’s name does not mean that the public will lack means of protecting itself by identifying offenders. The accused will have a criminal record. He will have to undergo background checks and vulnerable persons checks when seeking many forms of employment. A publication ban would not impact such measures intended to protect the public.
[60] Of some import is the fact that society has an interest in the participation of witnesses in the criminal justice system. In my view, this includes not deterring accused persons from testifying to relevant information that may be of assistance to the court in arriving at a just result. There may be circumstances where the interests of accused persons, in particular when acting in a different capacity than as an accused, warrant protection.
[61] It appears that a similar order was made in the case of R. v. S.B., 2022 O.J. No. 5161 (Prov.Ct.). While the reported decision contains no analysis on this point, there, the name of the accused was initialized and banned from publication where the only identifiable victim of sexual abuse was the accused. He was also charged with possession of child pornography.
[62] There will thus be no sealing order in these proceedings. However, I accept, on balance, that the accused’s name should be subject to a publication ban and initialized in any public materials related to this matter.
[63] Returning to the appropriate sentence in this case.
The Parties’ Positions
[64] The Crown takes the position that a sentence of incarceration of 24 to 30 months followed by three years of probation should be imposed in this case.
[65] The Crown recognizes that the period of imprisonment should be closer to two years rather than three given the lack of evidence of sharing the child exploitation material, which is usually a present element for cases in the three-year end of the range.
[66] The defence urges the Court to impose a conditional sentence order (CSO), followed by one year of probation.
[67] The parties agree that a DNA order should be made in addition to a weapon prohibition order under s. 109 Cr.C. for 10 years. They disagree on the necessity of an order under the Sex Offender Information Registry Act (SOIRA) and of a prohibition order under s. 161 Cr.C.
Immigration Opinion
[68] The defence position is informed by the fact that O.A. is subject to a deportation order from Canada because of his convictions in this case. Indeed, he is now inadmissible to Canada on the grounds of serious criminality. The defence seeks to preserve his right of appeal to allow him a chance to remain in the country despite this deportation order.
[69] I received a legal opinion from immigration counsel who advised that there is currently a deferral on deportations to Gaza because of the ongoing war, but not on deportations to the West Bank. In any event, a person who is inadmissible for serious criminality is not eligible for an administrative deferral of removal. As such, and even though O.A. has refugee status in Canada and is a permanent resident, he would be deported should an appeal of the deportation order not be successful.
[70] Immigration counsel advises that O.A. has a right of appeal to the Immigration Appeal Division (IAD) if any sentence imposed is less than six months jail, including any credit for pre-trial custody. Any sentence imposed that approaches the six-month limit would be viewed at the upper end of the seriousness of the offence factor considered on appeal and would likely result in deportation. A CSO (of any duration) would also not deprive O.A. of a right to appeal the deportation order. It would also significantly increase O.A.’s chances of success before the IAD.
Gardiner Hearing and Findings of Fact
[71] There are disputed facts in this matter which resulted in an extensive hearing being held pursuant to R. v. Gardiner, 1982 30 (SCC), [1982] 2 S.C.R. 368. In particular, the defence seeks to rely on disputed mitigating factors in support of its position.
[72] The aggravating factors the Crown seeks to rely on are not in dispute: they relate to the size and nature of O.A.’s collection, as well as the fact that he possessed them on two separate devices and over multiple days, and the impact of his offences on the victims and their families. The Crown also relies on s. 718.2(a)(ii.1) Cr.C. regarding the abuse of a person under 18, a statutorily aggravating factor.
[73] The Crown does not seek to prove as aggravating that O.A. is a pedophile or that he experienced sexual gratification from his offences – it deems this irrelevant to the appropriate sentence in this case. It does, however, argue that I should reject O.A.’s version in these regards and not attribute mitigating weight to the purported absence of these factors.
[74] The defence argues that it has proven these mitigating factors, but also argues that if I reject them, the Crown needs to prove sexual gratification beyond a reasonable doubt for me to rely on it at all.
[75] I disagree that the Crown must prove sexual gratification beyond a reasonable doubt. This is not properly seen as an aggravating factor. Rather, it is generally taken for granted in child pornography cases as part of the gravity of the offence. This aligns with the Court of Appeal’s recent analysis in R. v. Pike, 2024 ONCA 608. In my view, if the defence seeks to show, as a mitigating factor, that there was no sexual gratification, it must do so on a balance of probabilities.
[76] Indeed, the party wishing to rely on a fact relevant to sentencing, as either mitigating or aggravating, has the burden of proving it. The Crown must prove aggravating factors beyond a reasonable doubt, whereas the defence must prove mitigating ones on a balance of probabilities: ss. 724(3)(d) and (e); Gardiner.
[77] If facts sought to be relied upon are not proved to the requisite standard, they are simply absent from consideration on sentence.
[78] I have already indicated above that I accept O.A.’s sexual victimization as a child. This is not disputed by the Crown, nor are the circumstances that led to him being granted refugee status in Canada.
[79] I therefore accept that he faced a difficult life and persecution in the West Bank for being a gay man, and indeed that his father abused him physically as a result. He still bears the physical scar of the final encounter he had with his father that caused him to flee to Ukraine. He stayed there 10 years before being accepted as a refugee to Canada based on his sexual orientation. He began seeing a psychiatrist before being arrested on this matter and was diagnosed with PTSD. He has been working on his mental health and other physical repercussions of his abuse since.
[80] What is more controversial are O.A.’s motivations for these offences. As indicated, he testified at length regarding his explanation for accessing and downloading child abuse material.
[81] He testified that he was both doing research to write a book to expose child sexual abuse, and to locate videos of his own abuse which he had reason to believe might have been posted online on a Russian site. The defence recognizes that the research was not a defined and concerted effort. At times, O.A. wrote and burned the pages as that felt therapeutic for him. The defence did produce some writings it said were part of O.A.’s writing efforts in this regard.
[82] O.A. testified that he perceived a hypocrisy between religious values and mores, and the prevalence of child sexual abuse in these communities. He also saw a tension between the views held by many Muslims and in his culture towards homosexuals like himself, and the turning of a blind eye towards the sexual abuse of children. He wished to expose these hypocrisies. Some of his research, he says, was aimed at discovering the extent of sexual abuse of children in Arab countries and beyond.
[83] He explained that he was conducting research online to identify such abuse and its prevalence based on language and perceived country of origin. This would serve as a basis for a book, although he did not plan to use any of these images and videos in the book itself. He wished to preserve them as evidence in support of the allegations he would be putting forth in his book, as he expected denials from the communities he planned to target.
[84] His book would also capture his own experience and abuse. He felt he needed to have evidence of this abuse to protect himself and his family – that is, to prove that what he was saying was not a lie.
[85] He also planned to approach the embassies of countries that had a prevalence of child sexual abuse and wanted evidence of the abuse for that purpose. He therefore began classifying some of the child exploitation material by nationality.
[86] He said he began by looking for male abuse, based on his own experience, but then realized there was no reason to limit his search and began collecting evidence as it related to both boys and girls.
[87] Finally, O.A. claimed that his abuser from the West Bank had contacted him in Ukraine after O.A.’s contact information had been made public through the employment he had there. At that time, his abuser sought money from him and purported to blackmail him by stating that he would post the videos of his childhood abuse to a Russian website if he didn’t comply with the demand for money. O.A. became troubled by the idea of videos of himself being abused having been posted online. This would explain his interest in Russian material.
[88] The defence submitted material aimed at providing context for O.A.’s testimony. Without this context, it recognizes that it is difficult to understand why O.A. spoke about needing to find and have child pornography “to protect himself”.
[89] The material filed by the defence speaks to the culture of denial regarding all manner of child abuse and lack of assistance available in Palestine for victimized children. The material also speaks to violence inflicted by family members on children. The defence argues that “for a person to believe, as [O.A.] did, that he needed concrete proof of the abuse he suffered as a way to protect himself when discussing his own abuse, speaks to the ghastly and unthinkable trauma he has endured in his life”.
[90] Additional insight can be gleaned from O.A.’s statement to the police upon arrest. There, he explained that as he searched for a surrogate mother in Indonesia (having long wanted to be a father and adopt), he was added to a group called G-K for Gay Kids. He started receiving links from this group that he was added to two to three months prior to his arrest. There were many users in the group who posted links. He wanted to see what was there because Indonesia is a Muslim country, and he is from a Muslim country.
[91] Despite his explanation for how he came across the child pornography while doing surrogacy research, he readily acknowledges that he sought it out. Indeed, this is demonstrated by his earlier Google searches to locate what he then says he came across in an indirect manner. He explained to the police that his email got blocked as a result and he reached out to Google to explain and get it back. This is corroborated by Google searches relating to his blocked account.
[92] O.A. explained to the police that he was interested in seeing the older kids seemingly recording themselves too: he was trying to understand it. He alludes to his own abuse in the police statement, explaining that he long believed only he suffered abuse. He explained that it turns out many kids are like him. He displays a true curiosity and interest in understanding it. He says he began with reading about it, while in Ukraine. He was then told that some people in Russia have sex with kids.
[93] He knew it was very bad but told the police he didn’t think he wasn’t allowed to access it. He didn’t think looking at things on the Internet was illegal. He explained that he never paid for it and was insistent that he cannot hurt kids. He kept the child exploitation material because he wanted to show it. He offered to take a lie detector test.
[94] What was put forward as an explanation, if true, is no doubt distorted thinking.
[95] An important consideration in my assessment of the evidence in this case is the forensic psychiatric assessment performed on O.A. in this case.
[96] I received a report and heard testimony from Dr. Jonathan Gray, who completed a thorough sexual behaviour and psychiatric assessment of O.A. after he pled guilty to these offences. This assessment was aimed in part at identifying any applicable sexual or non-sexual diagnoses and identifying the risk O.A. poses going forward.
[97] Dr. Gray is a highly qualified and experienced forensic psychiatrist. He generally testifies for the Crown or for the benefit of the Court generally. He has held positions with the St Lawrence Valley Correctional Institute, which caters to sexual offenders, and has much experience in the field.
[98] Dr. Gray received various materials from the police disclosure and the defence, interviewed O.A. at length, and had him undergo a number of assessments and testing, including phallometric testing.
[99] Phallometric testing is an objective measure of physiological sexual arousal. O.A. was exposed to various kinds of slides, videos and audio tapes relating to males, females, adults, and children. Of all these, he responded only to the videos and audio relating to adult males – his stated sexual preference. The results of the phallometric testing provided “some evidence against a diagnosis of pedophilic disorder, and no evidence in support of this diagnosis”.
[100] I should note that tools are used to assess potential deceptiveness. Despite some low readings across the board as it related to the phallometric testing, there were no indications that O.A. was being deceptive in his answers to questions or during the phallometric testing.
[101] Aside from his confirmed PTSD, Dr. Gray assessed O.A. as possibly having some degree of poor cognitive problem-solving abilities.
[102] Dr. Gray opined that there was no evidence that O.A. holds cognitive distortions in the area of children and sexuality, or has an emotional attachment towards children, that would have facilitated his index offences. He concluded, based on all the evidence and the results of the phallometric testing, that “there is little evidence in support of a diagnosis of pedophilic disorder other than the nature of the charges themselves”. As set out in Dr. Gray’s report, pedophilic disorder under the DSM-5 is defined as a period of at least six months of recurrent, intense, sexually arousing fantasies, sexual urges, or behaviours involving sexual activity with a prepubescent child or children. The subject must also have acted on the urges or the urges need to have caused marked distress or interpersonal difficulty.
[103] Dr. Gray also opined that O.A. appeared to express genuine concern for victims of sexual abuse and those depicted in the child pornography material. I hold the same opinion, based on having heard O.A. testify for several hours and having observed him over the course of several days during these proceedings.
[104] As it relates to his future risk, Dr. Gray reported – based on the literature – that offenders convicted of possession or distribution of child pornography, without any “hands on” offences against children, are generally at very low risk of committing hands on offences against children in the future. They are even at low risk of committing further child pornography offences. Dr. Gray opined that even within this group, O.A.’s risk is below average. His profile would be that of a normal homosexual male with clinically significant arousal only to the control video and audio tapes depicting consensual sexual relationships between adult men.
[105] It is based on the above assessments that Dr. Gray states his opinion that “it is plausible that O.A. sought out and downloaded images depicting the sexual abuse of children for non-sexual reasons”.
[106] Of some potential note, Dr. Gray had not initially understood that O.A. had retained a USB key containing child pornography material from Ukraine and brought it with him to Canada. However, he was aware that O.A. sought out and may have viewed child pornography material in Ukraine in 2014. He testified that the additional information regarding having retained the material could be relevant, but it did not change his opinion. What was significant to Dr. Gray was that O.A. did not seek out additional child pornography over the intervening years, until he began his Google searches in Canada in 2021. As he put it, people have a tendency – even with regular adult pornography – to change it up. They do not tend to look at the same videos over and over again, over the course of several years. The fact that O.A. had retained the initial USB stick containing child pornography material therefore remained consistent with his explanation of conducting research.
[107] Dr. Gray surmised that someone with a history of sexual abuse may try to process his early trauma through viewing illegal images of child sexual abuse on the Internet. Such “exposure therapy” would be a maladaptive coping mechanism but may gradually lessen the psychological impact of the person’s early abuse. He posited that, while not identified as such by O.A., this may have been the case with him.
[108] The Crown challenged Dr. Gray on this theory given O.A.’s evidence that he felt sick watching the material he had in his possession.
Findings
[109] I do struggle with O.A.’s account of these reactions he testified to having. Perhaps he felt such emotions at some point or another. But he testified to watching some of the videos several times – purportedly in an effort to identify the language or dialects used by the offenders.
[110] In my assessment, O.A.’s motivations for gathering and viewing the child pornography material were more complex than what he stated, perhaps more than he even understands. People’s motivations are not always transparent to themselves, and people deceive themselves about their own motivations. O.A. may well have come to rationalize his conduct – in a way that is not entirely reflective of the truth.
[111] I expect that his early trauma has created a complicated psychological situation that very much informs his interest in this material. His police statement lends credence to the likelihood that he was at least in part making sense of his own abuse.
[112] There is some therapeutic aspect that can be gleaned from the materials before me. O.A. described the process of “researching” and writing to Dr. Gray as therapeutic.
[113] There are also certainly many demonstrations of naivete on O.A.’s part in the extensive evidence I heard from him regarding his life experience, in particular as it relates to gender and sexuality. For instance, he testified to receiving no sexual education as a child. It was at the age of 13 that he accidentally discovered that girls had different genitalia than boys. Before then, his abuser had told him they were all the same and he believed it.
[114] The fact that he thought he was alone in being victimized – a not uncommon belief for child victims – lends some credence to his belief that he needed to expose the extent of the abuse, believing that others including many in his community may be in as much of a state of ignorance or denial as he was.
[115] But I believe there was more to it, or there came to be more to it. In particular, I struggle to accept his explanation of book writing and looking for evidence of his own abuse.
[116] As indicated above, the defence did produce some draft writings. However, these are handwritten and undated, and O.A. acknowledged that some was written post-arrest. Many were purportedly burned, which supports the therapeutic theory but undermines the suggestion that he had any intent to actually do anything with these materials. These writings are thus not of great assistance.
[117] Not much can be gleaned from the directories or folders on his computer either. I did not have a full accounting of these, and O.A. testified that some were not of his own making – they were rather labels that came with the folders that were downloaded from the links he received. This is supported by the fact that some of these were in English, whereas some were in Arabic.
[118] There was no dispute that some folders related to nationalities. While this could be seen as partially corroborating his version of events, I do not have sufficient information for that fact to give me any comfort.
[119] Was O.A.’s stated intent to expose the abuse a bona fide one? As pointed out by the Crown, he held onto child exploitation material that he had obtained in Ukraine for years, never taking that material to the authorities or otherwise making productive use of it. He agreed in cross-examination that this was sufficient material for his book and to protect himself and his family. Yet he sought out more.
[120] Most significantly, I cannot get around some of the online searches he conducted. There are no searches for general child abuse or about information to assist abused children generally. O.A. explained why they are focused on gay male sex only, but the searches are also not specific to adults abusing children.
[121] I appreciate that PTSD and trauma can have the effect of distorting a person’s reasoning process – or as Dr. Gray stated – that O.A. may suffer from poor cognitive problem-solving abilities. But evidently there was more to it. I do not accept that he found no sexual gratification in at least some of the material.
[122] That said, I accept that much of what O.A. testified to is part of the truth. Complex feelings were at play, no doubt. I accept that part of his purpose was curiosity and trying to make sense of his own abuse, including by better understanding the existence and prevalence of child abuse. This is corroborated by the fact that the material he possessed included both boys and girls, whereas I do not believe he had or has any sexual interest in females, young or not. This is corroborated not only by his lifestyle including his current partnership but by the phallometric testing and by his online searches for gay and male sex.
[123] I also accept that O.A. does not have a pedophilia disorder and is at low risk of reoffending.
[124] He is currently in a stable and long-term relationship with an age-appropriate partner who attended court over this process. All of O.A.’s relationships have been with male adults of around his age, since his first consensual sexual encounter in Ramallah at the age of 19 or 20. He subsequently had an eight-year relationship with a man from Pakistan that he met in Ukraine, who passed away from COVID-19.
[125] However, I cannot positively find – on a balance of probabilities – that he found no sexual gratification in viewing the material.
[126] Dr. Gray’s determination that O.A. presented a very low risk of reoffending and did not warrant a pedophilia diagnosis did not hinge on a full acceptance of O.A.’s version of events. The phallometric testing results and O.A.’s two longstanding sexual relationships with adult men were key features of Dr. Gray’s assessment that he could not be said to suffer from a pedophilic disorder.
[127] On the issue of risk to reoffend, Dr. Gray relied on the lack of evidence that O.A. had antisocial traits or a past criminal record, the elements most associated with recidivism in child pornography offenders. His risk was also perceived as even lower given the paucity of evidence of the other main factor associated with recidivism, namely pedophilic disorder. These were the two key elements that informed his overall risk of sexual reoffence as being “very low”. Accordingly, I accept his assessment.
[128] I now turn to the crux of the sentencing analysis, based on the above findings and agreed facts.
Aggravating and Mitigating Factors
[129] The Court of Appeal in Pike, at para. 7, very recently emphasized the child-centred approach to sentencing that must be taken in child pornography cases post-Friesen (in reference to R. v. Friesen, 2020 SCC 9):
A child-centered approach to sentencing requires judges to consider child victims and the wrongs and harms that people who possess child pornography inflict on them, to reject myths that minimize the perpetrator’s responsibility and, finally, to apply a denunciatory sentencing range that reflects the abhorrent and harmful nature of these offences and their long-term negative impacts on children.
[130] Denunciation and deterrence must be prioritized: Pike, at para. 159; s. 718.01.
[131] In that case, one of the accused (Mr. Scott) was convicted after trial of importing and possessing child pornography. The Court of Appeal at para. 6 stated that the 23-month CSO that the trial judge had imposed was insufficient to recognize the deleterious long-term impact of this type of offence on society at large and on children in particular and held that a three-year custodial sentence was in order.
[132] At para. 179, the Court indicated that before considering whether a CSO is appropriate, the sentencing judge should determine the appropriate quantum of the sentence.
[133] It updated a non-exhaustive list of aggravating and mitigating factors that apply to sentencing people who possess child pornography: see paras. 166 and ff.
[134] First, I should consider the presence of a criminal record. O.A. has no record, whether here or abroad, and is being sentenced as a first offender. This is a significant mitigating factor.
[135] Pike will then have us turn our minds to whether there was any production or distribution of the child exploitation material. It points out that the absence of these factors is not mitigating – it rather points to the absence of an aggravating feature: Pike, at para. 171. In this case, there was no production or distribution, only possessing and accessing.
[136] As for the size of the collection, there is no doubt that the numbers at issue here are very significant: just over 1,000 unique images and videos from a total of 3,083 images and 3,499 videos. O.A. explained that he copied some of the images from his laptop to a flash drive, which explains some of the duplicates.
[137] As the Court of Appeal explained, at para. 167, the number should be placed in context. It needs to “be considered together with the number of real child victims, the degree of organization, and the ratio of videos to still images”.
[138] Here, given the number of images and videos in O.A.’s possession, the number of real victims is substantial. There are also many videos in the collection. And while the files were not as yet too organized, given the limited time O.A. had spent with his downloads, he did intend to further organize it – though he states this was for research and denunciatory purposes, and not based on his own personal preferences.
[139] The size of the collection is therefore very serious and aggravating, in particular from the perspective of the victims exposed therein.
[140] The seriousness of the nature of the collection is the next consideration and that cannot be overstated here. The videos and images include babies – the most vulnerable beings. The degree of depravity involved in the activities depicted is astonishing. They include bondage and penetration, both vaginal and anal, not to mention oral.
[141] The degree of harmfulness and wrongfulness is therefore significant. While not all of it is at the high end of the spectrum identified in Pike, at para. 190 (torture, aggressive sexual activity, and bestiality), all of it is horrifying and would cause severe physical and emotional harm to the helpless and real victims of this abuse.
[142] The next considerations are the “duration, frequency, collaboration with other offenders, planning, organization, sophistication, and participation in the child pornography subculture”. Here, there are aggravating features relating to the duration of the offending and some level of organization.
[143] Indeed, O.A. held onto a USB key containing 50 to 100 images of child exploitation material for several years, even bringing it across the border when he came to Canada from Ukraine. This demonstrates that he has had a longstanding interest in the material and has had possession of some images for a long period of time.
[144] Certainly, there was a break before he began looking for the material again, such that this is not a case of an offender spending years adding to and organizing his collection. In terms of frequency, this was his first apparently sustained foray into the world of child pornography, and the downloading he did was limited to a couple sittings within a matter of days.
[145] He was also not part of any child pornography subculture or community, nor did he display any sophistication in going about possessing this material. There were also no payments made to acquire the material.
[146] These considerations are significant because “[c]ollaboration, planning, organization, and sophistication are aggravating and trigger a greater need for deterrence because perpetrators who employ these methods can cause greater harm and avoid detection more easily”: Pike, at para. 170. Further, “[p]articipation in the child pornography subculture is … aggravating because, by reinforcing the offending behaviour of people who possess child pornography and encouraging them to graduate to even more serious offending, it increases the risk to children”: ibid.
[147] Nevertheless, the duration of possession and his endeavours to organize it, increase O.A.’s moral blameworthiness: Pike, at para. 170.
[148] And even where there is no payment for the material, Pike reminds us that “people who do not pay for the child pornography they possess still motivate those producers of child pornography who seek to win respect rather than money”: Pike, at para. 171.
[149] There is also no question that O.A. sought out the child abuse material. This offending did not occur accidentally or passively. As set out by Pike at paras. 161 and 164, it is in fact a myth that this type of material is something that can just fall into your lap. The offending here is and was deliberate.
[150] O.A. testified that he did not know it was illegal to possess and access child pornography online, given that he did not understand there to be Internet offences. It may be that he did not, given the nature of his upbringing. Even after his arrest and learning that the police had searched his home and devices, he was ashamed but expressed concern about his employer finding out and did not appear to appreciate the extent of the legal jeopardy he faced. Still, he clearly knew it was wrong.
[151] I must next consider the risk the offender presents to children.
[152] As I have previously stated, I believe O.A. presents a very low risk of re-offending. Not only given the psychiatric assessment conducted by Dr. Gray but considering his own viewpoints on child abuse and child abuse material, which I accept are genuine. Despite not being prepared to accept that he found no sexual gratification in the material, and the fact that there are layers of complexity to O.A.’s offending, I believe that he does understand how abhorrent it is.
[153] As stated in Pike, at para. 152, “child pornography can incite perpetrators to commit and facilitate their commission of other sexual offences against children” because “it leads them to deny and minimize the wrongfulness of, rationalize and normalize, and even fantasize about sexually exploiting children”. That is decidedly not O.A.’s situation.
[154] He does not deny or minimize the wrongfulness of the child exploitation material, nor does he seek to rationalize or normalize the conduct. He finds it morally abject and repugnant. He may have complex feelings in relation to it but having been a victim of this same type of abuse, he fully appreciates the victimization that results from possessing and viewing child pornography. While this can itself be aggravating here to some extent, given that he proceeded in the face of this understanding, I do not believe that he fantasizes about sexually exploiting children. Nor do I believe he would directly hurt children by committing any hands-on offending.
[155] I then turn to the offender’s good character, employment situation, and the stigma arising from these charges.
[156] These are noted as less significant factors at para. 172 of Pike, given that “many people of otherwise good character … secretly commit the offence, and possession usually involves repeated conduct over a significant period rather than an out-of-character isolated act, and it is very blameworthy for people of otherwise prior good character to fail to appreciate the wrongfulness of their actions”.
[157] Here, O.A. did appreciate how morally blameworthy his actions were, yet – as alluded to above – he proceeded anyway.
[158] Still, O.A.’s character otherwise speaks to his potential for rehabilitation. He has long sought to be a productive member of society, working various jobs as he could and in the face of numerous challenges. Despite some recurring health issues, he is determined to find work and continue contributing to his community. He has a positive support network including a close circle of friends and his life partner. I believe that he has strong prospects of rehabilitation.
[159] He has also already suffered the loss of his employment and of other friends because of these charges.
[160] I next consider O.A.’s level of insight and remorse.
[161] I do believe these factors are significant ones here, and not only because of what they say about O.A.’s low risk of re-offending. As stated in Pike, at para. 173, “courts assessing remorse and insight should focus on whether people who possess child pornography recognize and express remorse for wronging and harming real children. Conversely, these factors are entitled to less weight if the people being sentenced continue to engage in distorted thinking and minimize or excuse their actions as harmless fantasies”.
[162] O.A.’s remorse here is real. He completely appreciates the harm occasioned to the children depicted in the child exploitation material, and indeed the ongoing victimization of these children. He is deeply ashamed of his conduct. He expressed this not only in his testimony and allocution, but it was palpable during the duration of the prolonged sentencing proceedings in this case. It was also expressed immediately upon arrest to the police. He feels endless remorse and expressed his regret at every turn, in a genuine and authentic manner.
[163] O.A. now also clearly understands the illegal nature of the conduct and the significant consequences that result from it. I believe this will also serve to deter him from engaging in this type of conduct in the future.
[164] I may also consider O.A.’s guilty plea and the steps he has taken towards treatment. While this was not an early guilty plea, he ultimately took full responsibility for his actions.
[165] O.A. has also done significant work to improve his mental health. He has received very positive reports from his treatment team. As Dr. Gray indicates, “further treatment of his PTSD symptoms may reduce his incentive to seek out illegal images of child abuse, a behaviour which may be related to symptoms of PTSD.”
[166] Finally, I may consider applicable collateral consequences that would make the punishment greater for this offender than it would for another otherwise similarly situated offender.
[167] These are significant in this case: given O.A.’s immigration status, he is now deemed inadmissible to Canada. Depending on the sentence imposed, he may be deprived of a right to appeal his inadmissibility. He faces a very real risk of deportation to the West Bank, in the Palestinian territories. In his case more than for others, this would represent a real risk to his life. Indeed, he has been granted refugee status from his home country effectively on the basis of an attempt to kill him due to his sexual orientation. I will return to these immigration implications below.
Sentencing Range
[168] In Pike, the Court of Appeal updated the sentencing range for possession of child pornography to account for Friesen and the legislative increase to the maximum sentence: para. 174. The 18-month upper end of the range had previously been increased to three and a half to four years, and Pike increased it further to five years.
[169] The Court declined “to set a lower end for the possession range because … possession can be committed in a wide variety of circumstances and is sometimes prosecuted summarily, which lowers the maximum sentence to two-years-less-a-day”: para. 176. It also recognized that some sentencing judges continued to impose lower sentences post-Friesen, but that this could merely reflect the wide variety of circumstances in which the possession offence can be committed: para. 175.
[170] The Court observed that courts should situate cases on the range by assessing the applicable aggravating and mitigating factors, noting that the most useful precedents are post-Friesen: para. 178.
[171] In this case, recognizing the aggravating factors but considering the many notable mitigating factors, I am satisfied that a sentence in the general range of 1 to 2 years is appropriate.
[172] Significantly, in Mr. Scott’s case in R. v. Pike, the accused had been collecting child pornography for three decades and there was no question he was a persistent user of child pornography and had minimized his offending, describing his actions as mere fantasies. As stated by the Court at para. 8, Mr. Scott “treated the children he sexually abused as property and objects to exploit and to add to his so-called ‘collection’. The dignity he denied to those children belies his attempt upon arrest to minimize his crime as a mere harmless fantasy.” Mr. Scott did not face any particular collateral consequences, especially considering that he was already retired: Pike, at paras. 187, 189-191. The denunciatory sentence that the Court of Appeal deemed appropriate there was three years in custody, for both importing and possessing child pornography. This sentence was imposed after trial, and not pursuant to a guilty plea.
[173] That is not the case here. O.A. pled guilty and accepted responsibility for his offences. He had a lot of child-exploitation material and has had some for an extended period, but he has not been persistently collecting it and was not an avid collector or in any way involved in a subculture that seeks to minimize the crimes and the harms occasioned as mere fantasy.
[174] The number of videos and images speak to the number of children re-victimized by the subsequent viewing, although the evidence here is that O.A. had not yet had time to review all these images and videos. Still, by downloading such a high number, he increased demand and thereby participated in the victimization of all these children. But he did not minimize his actions and acknowledged the very real harm he caused. He understood why it was wrong. There is no question that he has utmost insight into the harms occasioned by child pornography, and in no way does he seek to minimize the harm done. He never portrayed it as “mere harmless fantasy”, as was the case for Mr. Scott in Pike. While I have found that there had to be more to it, I accept that O.A. was torn and was not endeavouring to harm children, nor was he indifferent to their plight.
[175] Although he very well knew he was harming them, which increases his moral blameworthiness, he does not fall within the category of offenders who, to quote Pike at para. 163, demonstrate “a disturbing lack of empathy and compassion by continuing to collect and view the material without considering the plight of the victims it depicts”, and being “confronted with child abuse and exploitation that would horrify and repulse right-thinking people each time they view the material”.
[176] It also cannot be neglected that O.A. was himself a victim of sexual abuse and child pornography. As both Friesen and Pike recognize, “‘[i]t takes great strength and courage to survive sexual violence as a child’ because of the myriad physical and emotional harms that it causes. People who possess child pornography make the challenging path of recovery much steeper by transforming the initial exploitation and violence of the production into a continuing violation”: Pike, at para. 149.
[177] This is what O.A. had to contend with. His childhood wounds were reopened by his abuser, and he continued to be victimized into his adulthood. Revictimizing children through child pornography “prevents and hinders their recovery from the initial violence and exploitation”: Pike, at para. 149. The ongoing availability of this material humiliates the children and undermines their self-worth: Pike, at para. 150. “People who possess child pornography thus cause ongoing psychological harm to children that can extend long into adulthood”: Pike, at para. 150. And this, ultimately, is what brings O.A. before the courts today.
[178] As acknowledged in Pike, at para. 160, while courts must place “children and the wrongs and harms that people who possess child pornography inflict on them at the centre of the sentencing process”, we “can give significant weight to the personal circumstances and mitigating factors of people who possess child pornography, and to sentencing objectives such as rehabilitation”. We must simply be mindful of the need to not have these considerations “overshadow the wrongs and harms they inflict”.
[179] The Court of Appeal in R. v. C.B., 2024 ONCA 160, at para. 34, has also recently stated that restraint and lessened moral culpability remain relevant in the child sexual assault context post-Friesen. In that case, the Court of Appeal upheld a global 18-month sentence for making and distributing child pornography and voyeurism, stating that this sentence did not fail to apply Friesen or fail to prioritize the principles of denunciation and deterrence: see para. 30. See also R. v. M.V., 2023 ONCA 724.
[180] I note that the Crown’s position of 24 to 30 months is premised on me rejecting some of the mitigating factors put forward by the defence. But after thorough consideration, I substantially accept these mitigating factors.
[181] Many accused convicted of possessing child pornography post-Friesen have received sentences in the range of one to two years.
Precedents
[182] R. v. Insanally, 2024 ONSC 722 is factually similar in many respects to the case at bar. There, the offender was sentenced to two years less a day. However, the mitigating factors in this case are much more significant. Mr. Insanally had little insight and had also pled guilty to making child pornography available.
[183] Similarly, the Court of Appeal upheld a 22-month sentence in R. v. Rule, 2023 O.J. No. 168, in a case where the accused possessed and accessed over 20,000 images and over 200 videos of child pornography. As here, the nature of the child pornography was toward the higher end of seriousness, including babies in diapers and a general age range of one to 15 years. It similarly involved acts of penetration. In that case, the offender was diagnosed with hebephilia (an interest in girls aged 9 to 13) and had been viewing these images for a decade. Mr. Rule had some health issues, at age 70, but O.A. also has physical issues as well as mental health issues to contend with.
[184] In R. v. Jenkins, 2021 ONSC 2963, the accused was sentenced to 18 months for a far greater number of images.
[185] Many accused convicted of possession of child pornography post-Friesen have also received sentences in the range of one year or less.
[186] In R. v. Tang, 2022 ONCJ 251, the court sentenced the offender to 10 months jail for making child pornography available, which was held to be more serious than possession. The offender, who was 22 years old, pled guilty to posting 28 video thumbnails and two partial video thumbnails to an online platform. A search warrant executed at the offender’s home resulted in locating four laptops containing 1126 images categorized as child pornography, as well as 54 videos of the same classification. The victims’ ages varied from 2 to 11.
[187] In R. v. Tardif, 2024 ONCJ (unreported, January 18, 2024, Toronto # 22-30001368-00), Justice Chapman imposed a sentence of 12 months for possession (and 15 months for distribution) of child pornography. While the case involved fewer images and videos, they depicted children aged 3 to 12 and the accused purchased the material from flea markets. The distribution count related to him also sharing the material on multiple occasions. The offender was diagnosed with pedophilia.
[188] See also R. v. Rousseau, 2024 O.J. No. 877 (Prov. Ct.), where another sentence of 12 months was imposed for possession of child pornography.
[189] In R. v. Tcheong, 2023 ONCJ 205, a sentence of eight months was imposed for possession of fewer images and videos, with children as young as five, but where these were accessed over a period of five years.
[190] In R. v. Treloar, 2023 ONCJ 100, a sentence of six months was ordered for accessing child pornography following trial, although the Crown proceeded summarily. There were no videos but there were over 2500 unique images that included intercourse, bondage, and bestiality. The offender also conducted Internet searches for it.
[191] While these cases did not have the benefit of the Court of Appeal’s recent guidance in Pike, they were decided after Friesen and they remain relevant, in particular from a parity perspective.
Availability of a Conditional Sentence
[192] The question remains whether the period of imprisonment that O.A. faces should be served at home under strict conditions or in a reformatory.
[193] As indicated, I agree with the defence that a sentence of less than two years is appropriate in this case. This meets the first requirement of a CSO.
[194] Given that no minimum sentence applies, a CSO is available for the offence before the court if it would not endanger the community and if it would be consistent with the fundamental purpose and principles of sentencing.
[195] I accept that a community sentence in this case would not endanger community safety.
[196] What is more difficult is deciding “whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing, especially the fundamental principle, proportionality. This test requires considering not only personal circumstances and mitigating factors of people who possess child pornography, but also the severe wrongs and harms that they cause, their moral blameworthiness, and Parliament’s prioritization of deterrence and denunciation”: Pike, at para. 179.
[197] Applying R. v. M.M., 2022 ONCA 441, the Court of Appeal in Pike, at para. 179, opined that “applying this second step ordinarily results in custodial sentences because Parliament has prioritized denouncing and deterring the wrongs and harms that people who possess child pornography cause real children”.
[198] While Pike, at paras. 181 and 182, states that conditional sentences ought not be perceived as exceptional and there is no presumption against conditional sentences in sentencing child pornography offenders, “more compelling personal circumstances, mitigating factors, and/or the absence of aggravating factors”, are required to justify a conditional sentence than might have been the case when Proulx was decided more than two decades ago [emphasis added].
[199] Despite the presence of clear aggravating factors in this case, there are compelling personal circumstances and mitigating factors that may render a CSO appropriate.
[200] In R. v. Jongsma, 2021 O.J. No. 808 (Super. Ct.), a post-Friesen case, the accused received a 12-month CSO. Mr. Jongsma’s personal circumstances were in many ways similar to those of O.A. The fact that Mr. Jongsma was a victim of sexual abuse as a child featured prominently in the analysis.
[201] Some distinguishing features with this case are that Mr. Jongsma did not seek out the child pornography, and the size of his collection was far less notable: 24 videos. They also did not include infants or children under the age of six.
[202] Similarly, in R. v. M.C., 2024 ONSC 2928, M.C. received a conditional sentence of 18 months for accessing child pornography. He would periodically enter chat rooms where child pornography was streamed and viewed with several other men masturbating to it. This included infants. However, the court noted that the cumulative circumstances underlying his offence were exceptional and rendered a carceral term highly problematic.
[203] M.C. had several very significant mitigating factors that are similar to the ones applicable here: see para. 60. M.C. was also a gay man who was the victim of significant childhood sexual trauma for several years. His sense of fear, shame and embarrassment was palpably sincere. He also contended with very serious drug addictions his entire adult life. Since his arrest, he had undergone very extensive counselling and therapy for the sex offences and the childhood trauma. There was a significant concern that a jail sentence would interrupt M.C.’s significant rehabilitation to date and reverse the extensive progress that he had made since his arrest.
[204] The court placed significant emphasis on the diminished degree of M.C.’s moral blameworthiness in light of the sexual childhood violence he experienced. At para. 44, it considered the Supreme Court’s discussion in Friesen of the impacts of sexual violence on children, and the recognition at para. 64 that victims of sexual abuse might become abusers themselves. As in Jongsma, it recognized that in sentencing a sexual offender, their own history of sexual victimization and abuse is relevant and must be considered as it directly impacts on their degree of responsibility for their offences. As stated at para. 45, “[r]elevant considerations would include: a. the nature and duration of the sexual abuse suffered by an accused; and b. the nature and duration of the sexual abuse he committed and c. any causal connection that might be drawn to the abuse he has suffered.”
[205] There is such a connection here, not only in terms of one of O.A.’s purposes for accessing the child pornography, but also as a result of his PTSD which stems directly from the prolonged abuse he suffered.
[206] M.C.’s cumulative circumstances were deemed exceptional: paras. 62-63. The court explained, at para. 62, that:
Absent the combination of M.C.’s dreadful childhood history, his extensive and ongoing counselling and therapy, the Crown’s indication that it would be highly unlikely that he could continue with his ongoing counselling if he were to receive a custodial sentence, and M.C.’s supportive family, an appropriate sentencing range would be three to six months in custody, followed by two to three years probation. This would be in keeping with the ranges reflected in the cases put before this court by both sides.
[207] At para. 66, however, the court cautioned that “having regard for the imperatives of deterrence and denunciation, … an offender’s personal history, even if traumatic, may not be sufficient to find exceptional circumstances to justify a non-custodial sentence. An offender who experienced child trauma but who otherwise lacks insight, does not seek treatment, and is otherwise in denial of his or her moral blameworthiness, may not represent an exceptional circumstance.”
[208] It went on to conclude at para. 67 that M.C.’s situation was exceptional and warranted a non-custodial sentence, given the combination of mitigating factors and because time in custody might undermine the course of his rehabilitation.
[209] The defence in this case argues that incarceration would have a devastating impact on O.A. and the progress he has made. While not to the same degree as in M.C., given the precariousness of M.C.’s situation at the time of sentencing, I do have information from Dr. Jamal that a period of incarceration in a custodial setting would impact O.A.’s mental health by worsening his symptoms of flashbacks, nightmares and disturbed sleep, whereas he has made progress on these fronts in recent months. This would undermine some of the progress he has made in addressing his PTSD, which affliction was likely a contributing factor in these offences – a finding supported by Dr. Gray’s assessment.
[210] Another feature of some cases where a CSO has been imposed is where the immigration consequences were such as to expose the offender to life-threatening conditions.
[211] In R. v. Ngabirano, 2023 ONSC 1706, a CSO was imposed where a jail sentence of six months or more would have exposed the offender to life-threatening consequences in Burundi. The court explained, at para. 27, that:
Mr. Ngabirano may face life-threatening consequences if he is sentenced to six months or more in jail. He would be very likely to receive a removal order and face certain deportation to an unstable and violent country. Relying on information obtained from Mr. Ngabirano’s older sister and a 2015 Human Rights Watch World Report, Mr. Ngabirano’s pre-sentence report notes that human rights abuses and violence in Burundi are well documented, and that the killing of civilians by both security forces and armed opposition has led hundreds of thousands of Burundi citizens to seek to leave the country.
[212] The offences in that case were kidnapping with intent to confine, robbery, and use of an imitation firearm in the commission of an offence.
[213] Similar circumstances have been considered in other cases as well.
[214] In R. v. Nassri, 2015 ONCA 316, at para. 33, the Court of Appeal stated that “[i]t is self-evident that depriving the appellant of the right to appeal deportation to one of the most dangerous places on Earth [Syria] would be grossly disproportionate to this offence and this offender and would contravene the sentencing principle of individualization.” It accordingly reduced the sentence of nine months that had been imposed to one of six months less 15 days, given that six months remained within the appropriate range.
[215] This is in line with the general principles relating to tailoring sentences – albeit not artificially so – to account for immigration consequences.
[216] As stated in R. v. Suter, 2018 SCC 34, at paras. 46 and 48:
Tailoring sentences to the circumstances of the offence and the offender may require the sentencing judge to look at collateral consequences. Examining collateral consequences enables a sentencing judge to craft a proportionate sentence in a given case by taking into account all the relevant circumstances related to the offence and the offender.
The question is not whether collateral consequences diminish the offender’s moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances. Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer “like” the others, rendering a given sentence unfit.
[217] The evidence before me suggests that deportation could pose a real risk to O.A.’s life. This must be taken into account in devising a fit sentence in the particular circumstances of this case. I trust that O.A. will not re-offend and indeed that he will do his best to contribute to Canadian society, of which he is most proud, if permitted to remain in his country of adoption.
[218] I fully appreciate that denunciation and deterrence are the primary objectives in sentencing an offender for child offences. However, the sentence imposed must remain proportionate to the offender’s moral blameworthiness and account for his personal circumstances. In some cases, this can be achieved by way of a CSO.
[219] In Friesen, the Supreme Court recognized, at para. 38, that:
Sentencing judges have considerable scope to apply the principles of sentencing in any manner that suits the features of a particular case. Different methods may even be required to account properly for relevant systemic and background factors …. Similarly, a particular combination of aggravating and mitigating factors may call for a sentence that lies far from any starting point and outside any range.
[220] As stated in R. v. Lacasse, 2015 SCC 64, at para. 58:
There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision.
[221] Similarly, while the Court of Appeal in Pike made clear that denunciation and deterrence must be at the forefront of the sentencing analysis in child pornography cases, Tulloch C.J. also recognized at para. 182 that CSOs will still properly apply to some cases:
Not only is there no closed list of such circumstances and factors…, but multiple seemingly non-exceptional factors taken together, such as being a young first offender with family support who poses little risk and takes responsibility for his actions, can collectively render a conditional sentence proportionate.
[222] This is one such case, albeit only by the slightest of margins. The combination of a particularly traumatic history with a causal connection to these offences, with potentially dire collateral consequences, are two of the key factors here that make this case exceptional, and that allow for a conditional sentence to be imposed – albeit one that includes stringent terms.
[223] In R. v. Pham, 2013 SCC 15, at para. 9, the Supreme Court stated that:
As a corollary to sentence individualization, the parity principle requires that a sentence be similar to those imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b) of the Criminal Code). In other words, “if the personal circumstances of the offender are different, different sentences will be justified”.
[224] It is also relevant to denunciation and deterrence that O.A. has spent three days in pre-sentence custody (the equivalent of five days in jail) and has spent more than three years on bail, dealing with the ramifications of his conduct. In my assessment, O.A. now clearly understands the repercussions and specific deterrence has been achieved.
[225] I note several other cases where a CSO was imposed for this type of offence post-Friesen.
[226] In R. v. Faroughi, 2024 ONCA 178, a nine-month CSO was imposed for child luring in relation to Project Raphael. It was held that non-exceptional mitigating factors, that is that the accused was a youthful offender with family support who posed little risk and had taken responsibility for his conduct, taken together, could justify such a sentence.
[227] In R. v. S.B., 2022 ONCJ 536, the court imposed a CSO of two years less a day for 40,000 images and 600 videos that were very graphic. The offender was also abused as a child and the court found, at para. 26, that his reduced moral blameworthiness and present circumstances justified an adaptive approach to custody.
[228] In R. v. Afzaal, [2022] O.J. No. 927 (Prov.Ct.), the offender pled guilty to one charge of accessing child pornography and was sentenced to an 18-month conditional sentence, followed by a two-year probation period. The offender accessed 215 images, 17% of which involved real children engaged in sexual acts. He was 23 years of age when he started accessing the images. He was socially immature and socially isolated. He was the target of bullying in school and these experiences impacted his moral blameworthiness. The trial judge expressed the concern that he would be extremely vulnerable within an inmate population and that incarceration would be excessively punitive in the circumstances. Combined with his true remorse, a conditional sentence was deemed appropriate, and its conditions were found to serve the objectives of denunciation and deterrence. See also: R. v. Prendivoj, 2022 ONCJ 257, R. v. Cusick, 2022 ONCJ 590, and R. v. S.L., 2021 O.J. No. 7409 (Prov.Ct.).
[229] Friesen involved the offences of sexual interference, invitation to sexual touching, sexual exploitation, incest, and sexual assault. In R. v. Parker, 2024 ONCA 591, at para. 31, the Court of Appeal observed that while Friesen stands for the proposition that offences involving child pornography are also very serious and that sentencing for such offences should increase in recognition of the wrongfulness of the conduct and the serious harm caused to children, it “cannot be read as suggesting that sentencing for offences involving the making available and possession of child pornography should necessarily be in the same range as sentencing for sexual interference and the other related offences.” See also paras. 32 and 37.
[230] At paras. 94 to 97 of Parker, the Court also noted that the sentencing range for possession of child pornography is uncertain, and that a range beginning at six months is still applied by some courts, even after Friesen; that sentences in the Ontario Court of Justice, where summary prosecutions are more common, only rarely exceed one-year imprisonment; and that conditional sentences for possession of child pornography are not uncommon.
[231] That said, the nature of the offending in this case mandates a conditional sentence at the high end of the range, with strict terms designed to strongly denounce the conduct and deter others – including people in circumstances akin to those of O.A. – from committing this type of offence.
[232] Indeed, O.A.’s personal circumstances and the mitigating factors in this case make a conditional sentence proportionate and not inconsistent with the fundamental principles of sentencing, but this case is certainly close to the line. Conditional sentences can meet the principles of denunciation and deterrence, which must remain paramount, but it can only do so in this case if the terms of the order and its duration are stringent.
Sentence
[233] Despite the defence’s submission that a CSO term of six to 18 months would be reasonable, in my view anything short of two years less a day would fail to properly account for the principles of denunciation and deterrence that I must in the end prioritize. As would any short period of house arrest. The terms must in my view restrict O.A.’s movements in the community to those related to his continued therapy and his ability to work.
[234] As such, the entirety of his sentence of two years less a day will be served on house arrest, which will be electronically monitored for the first year. O.A. should know that he therefore needs to strictly abide by these terms, or he will be sent to jail.
[235] I will also include a counselling term including a referral to CAMH for its program designed for child pornography offenders, as recommended by Dr. Gray. While O.A. is a very good candidate for rehabilitation, he still has work to do to address the issues underlying this conduct. Pursuing this program and counselling more generally will enhance the goals of rehabilitation and the protection of the public, which are also high on my mind.
[236] The Crown acknowledged that two of the four counts should be stayed pursuant to the principles set out in R. v. Kienapple. I propose to stay counts two and three (the accessing counts) pursuant to the analysis set out in R. v. Branco, 2019 ONSC 3591, at paras. 130-135, but will hear from counsel on this point.
[237] The remaining two offences are similarly situated and should attract substantially the same sentence. Considering the principle of totality, the sentence on each count will be served concurrently.
[238] O.A., I therefore sentence you to a conditional sentence of two years less a day, on the following terms:
• Remain in the province of Ontario
• Deposit your passport with the officer in charge
• Reside at a place approved of by the supervisor and not change that address without obtaining the consent of your supervisor in advance
• Notify your supervisor of any new or any change of employment
• Report within 48 hours and thereafter as directed
• Do not be alone with a person under the age of 18
• Do not attend any school, park, playground, community center or any place where persons under the age of 18 are reasonably expected to congregate, except with the prior written approval of your supervisor, to be carried on your person
• Do not seek, obtain, or continue with any paid or unpaid activity that involves being in a position of trust or authority towards persons under the age of 16
• Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by your supervisor and complete them to the satisfaction of the supervisor, including for mental health, with Dr. Jamal, with LOFT Community Services, and with CAMH for its child pornography offenders program
• Sign any releases of information forms as will enable your supervisor to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
• Provide the supervising officer with accurate, up-to-date information regarding your Internet Service Provider (ISP) account. This information includes, but is not limited to, the name of the Internet Service Provider, your account number and your billing address.
• Do not possess or access any images of children who are depicted to be, or appear to be, under the age of 18 years, who are naked or who are portrayed in a sexual manner.
• Do not use or access the Internet or other digital networks unless you do so:
a. On your own personal telecommunications devices,
i. For which you have provided to your supervising officer in writing the make, model, serial number and service provider as well as any telephone number connected with the device
ii. These devices must not save files in an encrypted fashion or have TOR, peer-to-peer, torrent, scrubbing software, usenet, Freenet, or cloud-storage applications installed.
b. On any other telecommunications device under the direct and constant supervision of any person approved of in writing by your probation officer; or
c. Where you are not self-employed, you may use or access the Internet or other digital network at your place of work, for work purposes and in accordance with IT and other policies at your place of work.
d. Do not use any telecommunication device to access the Internet or other digital network in order to:
i. Access child pornography;
ii. Access or participate in chat rooms, bulletin boards or other social media that discuss or promote child exploitation, child pornography, sexualized images of children or other child exploitation material.
• House arrest for the duration of the order, with the following exceptions:
➢ To go directly to and from work, and while at your place of work;
➢ To find work, pursuant to a schedule to be provided in advance and approved by your supervisor;
➢ To attend mental health programming and counselling, including LOFT Community Services
➢ For medical appointments
➢ For medical emergencies relating to you or your partner or immediate family member
➢ For a period of four hours a week on a day and time of your choosing, to enable you to obtain the necessaries of life. This time will be confirmed in advance with your supervisor
➢ To meet with legal counsel and attend court or tribunal proceedings, including as it relates to any immigration proceedings
➢ To comply with the terms of this order
[239] I will hear the parties on any perceived need to adjust these terms to account for O.A.’s current living circumstances or any other concerns.
[240] You will also be on electronic monitoring for the first year of this sentence, on the following terms:
➢ You shall report to your Conditional Sentence Supervisor for the purpose of arranging your enrolment in the GPS program provided by the Ministry of the Solicitor General.
➢ After completing the intake process with your Conditional Sentence Supervisor, you shall go directly to your approved address and observe a term of complete house arrest until the required GPS unit is installed. There are no exceptions to this house arrest condition.
➢ You shall be subject to the GPS Monitoring Program for the first year of this conditional sentence order.
➢ You will be subject to GPS monitoring by the government-funded GPS monitoring program and agree to abide by all of its rules and protocols by providing your signature on the GPS Rules and Protocols which will be attached to this conditional sentence order as Schedule “A”. These rules and protocols form part of this Conditional Sentence Order.
➢ You shall follow the instructions of your conditional sentence supervisor and/or representatives of the government-funded GPS monitoring program with respect to the installation of the GPS monitoring ankle bracelet and any associated equipment.
[241] This sentence will be followed by three years of probation to address your rehabilitation more fully. You will have to abide by the following terms:
• Reside at a place approved of by the probation officer and do not change that address without obtaining the consent of your probation officer in advance
• Notify your probation officer of any change of employment
• Report within 48 hours and thereafter as directed
• Do not be alone with a person under the age of 18
• Provide the probation officer with accurate, up-to-date information regarding your Internet Service Provider (ISP) account. This information includes, but is not limited to, the name of the Internet Service Provider, your account number and your billing address.
• Do not use or access the Internet or other digital networks unless:
a. On your own personal telecommunications devices,
i. For which you have provided to your supervising officer in writing the make, model, serial number and service provider as well as any telephone number connected with the device
ii. These devices must not save files in an encrypted fashion or have Toronto, peer-to-peer, torrent, scrubbing software, usenet, Freenet, or cloud-storage applications installed.
b. On any other telecommunications device under the direct and constant supervision of any person approved of in writing by your probation officer; or
c. Where you are not self-employed, you may use or access the Internet or other digital network at your place of work, for work purposes and in accordance with IT and other policies at your place of work.
d. Do not use any telecommunication device to access the Internet or other digital network in order to:
i. Access child pornography;
ii. Access or participate in chat rooms, bulletin boards or other social media that discuss or promote child exploitation, child pornography, sexualized images of children or other child exploitation material.
• Do not possess or access any images of children who are depicted to be, or appear to be under the age of 18 years, who are naked or who are portrayed in a sexual manner.
• Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by your supervisor and complete them to the satisfaction of the probation officer, including for mental health, with Dr. Jamal, with LOFT Community Services, and with CAMH for its child pornography offenders program
• Sign any releases of information forms as will enable you probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
Ancillary Orders
SOIRA Order
[242] You will also have to report pursuant to the Sex Offender Information Registry Act.
[243] Indeed, while a SOIRA order is not mandatory given the fact that the sentence imposed is under two years, section 490.012(3) requires me to make the order unless I am satisfied the person has established that:
(a) there would be no connection between making the order and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under that Act; or
(b) the impact of the order on the person, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under that Act.
[244] The defence argues it has met this burden.
[245] While I accept that O.A. is at low risk of re-offending, the factors that I must consider under subsection (4) lead me to the conclusion that a SOIRA order must be made. These factors include:
(a) the nature and seriousness of the designated offence;
(b) the victim’s age and other personal characteristics;
(d) the personal characteristics and circumstances of the person;
(e) the person’s criminal history, including the age at which they previously committed any offence and the length of time for which they have been at liberty without committing an offence;
(f) the opinions of experts who have examined the person; and
(g) any other factors that the court considers relevant.
[246] While I therefore consider what I have set out above regarding your personal characteristics and circumstances, Dr. Gray’s opinion regarding his low risk of re-offending, as well as the fact that you have been on bail for over three years without any further offending, these offences are very serious, in particular considering the nature of the sexual degradation present in your collection, and the very young ages of some of the victims in this case. There are still residual safety concerns that justify such an order and that do not allow me to find that the exceptions set out in s. 490.012(3) have been met.
[247] The Crown submitted that a 20-year order should be made, recognizing that there is no evidence that you are at high risk of reoffending, which could justify a discretionary life order.
[248] While you stand convicted of more than one offence, I agree that s. 490.012(3)(b) is not satisfied such that a life term is not in order – that is, I am not satisfied that the offences demonstrate a pattern showing an increased risk of reoffending.
[249] Accordingly, and since these offences attract a maximum sentence of 10 years, s. 490.013(2)(b) designates the duration of the order as 20 years.
Section 161 Prohibition Order
[250] Finally, the Crown seeks a 10-year prohibition order under s. 161 of the Criminal Code, as it relates to public parks, playgrounds and schoolgrounds, employment that involves being in a position of trust towards persons under 16, having contact with persons under 16, and use of the Internet, under ss. (a) through (d).
[251] The defence argues that none of these prohibitions are required in this case. It submits that O.A. is not a pedophile and has learned a tremendous lesson. A thorough and exhaustive forensic psychiatric evaluation confirmed he is at very low risk to re-offend, and he has been on bail with similar restrictions for over three years without incident.
[252] In R. v. K.R.J., 2016 SCC 31, the Supreme Court at para. 48 indicated that it agreed “with the line of cases holding that s. 161 orders can be imposed only when there is an evidentiary basis upon which to conclude that the particular offender poses a risk to children and the judge is satisfied that the specific terms of the order are a reasonable attempt to minimize the risk. … These orders are not available as a matter of course. In addition, the content of the order must carefully respond to an offender’s specific circumstances.” See also paras. 112 and 114.
[253] Similarly, in R. v. Brar, 2016 ONCA 724, at para. 18, the Court of Appeal held that:
Because these orders can have a significant impact on the liberty and security of offenders and can attract a considerable degree of stigma, they will be justified where the court is satisfied that the specific terms of the order are a reasonable attempt to minimize the risk the offender poses to children.
[254] I have already found that O.A. does not present a risk to children as it relates to hands-on offences. He will also be on house arrest for the next two years and thereafter on probation and registered as a sex offender. I have included terms in the above orders that I deem appropriate in all the circumstances. Imposing prohibitions on parks, playgrounds, employment or contact with children beyond that would not in my view meet the strict criteria needed to impose prohibition orders under s. 161, given O.A.’s specific circumstances. Such orders would have a significant impact on him yet would serve no useful purpose.
[255] As for Internet prohibitions, while O.A.’s risk of further offending is low, it remains present. Some restrictions on the use of the Internet are in order.
[256] In Jongsma, where similar mitigating factors were engaged, Ducharme J. imposed Internet restrictions despite not imposing any restrictions under subsections (b) or (c).
[257] And as recently stated by the British Columbia Court of Appeal in R. v. S.J.H., 2024 BCCA 134, at para. 21, “…the analytic approach in Friesen that focuses on the protection of children from sexual exploitation should inform the s. 161 analysis established in K.R.J., and reliance on precedents that pre-date Friesen may be of limited assistance to sentencing judges and appellate courts. I note as well that an emphasis on the protection of children from wrongful exploitation and harm takes on increased importance the higher the risk of re-offence and the younger the victim: see Friesen at paras. 123, 134-135.”
[258] I must however ensure that the restrictions are sufficiently tailored to the risk O.A. poses. This is particularly the case in the context of Internet restrictions given how impactful they can be.
[259] Indeed, the Supreme Court at paras. 54 and ff. of K.R.J. described the significant detrimental impact of such orders on offenders:
This Court has recognized that living in the community under restrictions can attract a considerable degree of stigma (R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 105). … And depriving an offender under s. 161(1)(d) of access to the Internet is tantamount to severing that person from an increasingly indispensable component of everyday life:
The Internet has become a hub for every kind of human activity, from education to recreation to commerce. It is no longer merely a window to the world. For a growing number of people, the Internet is their world — a place where one can do nearly everything one needs or wants to do. The Web provides virtual opportunities for people to shop, meet new people, converse with friends and family, transact business, network and find jobs, bank, read the newspaper, watch movies, and attend classes.
For many Canadians, membership in online communities is an integral component of citizenship and personhood. …
A complete ban on “using the Internet or other digital network” — an indispensable tool of modern life and an avenue of democratic participation — is more intrusive than the previous ban on “using a computer system . . . for the purpose of communicating” with young people. This constitutes a significant deprivation of liberty.
[260] In Brar, the accused was prohibited from accessing any illegal content and from participating in any manner in any social network, online forums or chat rooms (para. 28). This was in circumstances where the offender was engaged in predatory behaviour online. See also R. v. J.P.K., 2023 O.J. No. 3243, at paras. 5-6.
[261] The Internet restrictions here in my view should not inhibit O.A.’s search for employment and his rehabilitation, as that would be counter productive. It should also not erect barriers to his full participation in society, which – as recognized in K.R.J. – may result in substantial consequences both socially and economically. He should remain connected to friends and family supports so as to not hinder his rehabilitation by socially isolating him. In his case, given the different places where he has lived, these supports are not only here but elsewhere in Canada and abroad. I have therefore been careful not to preclude access to social media entirely, given how common such sites are today to connect with loved ones.
[262] As for the appropriate length of the order, s. 161(2) provides that it may be for life or any shorter duration the court considers desirable. In S.J.H., the BC Court of Appeal commented at para. 91 that the duration must take account of the length of the offender’s sentence, the offender’s age [upon release], and his prospects of rehabilitation.
[263] I have already accounted for more stringent Internet and device restrictions through the terms of the conditional sentence and probation order. I think it appropriate to extend some of these terms for a period of 10 years.
[264] The term of the prohibition order will be as follows:
You must not access any digital network including the Internet to: (1) access any content that violates the law; (2) access, directly or indirectly, Internet discussion forums or chat rooms, or peer-to-peer file sharing networks; (3) communicate or attempt to communicate with any person you know to be or who reasonably appears or represents themselves to be under the age of 16 years, unless they are members of your family. And (4) you must, upon the request of a peace officer, give them access to any device in your possession that is capable of accessing the Internet or any computer network so they can verify compliance with this condition.
DNA and Weapon Prohibition Orders
[265] Finally, there will be a DNA order on both counts as primary designated offences.
There will be a s. 109 weapons-prohibition order for 10 years on consent of the parties.
Released: September 23, 2024
Signed: Justice Mainville