ONTARIO COURT OF JUSTICE
DATE: 2025-01-09
COURT FILE No.: Brampton 23-31100519, 23-31100351, 22-31106813
BETWEEN:
HIS MAJESTY THE KING
— AND —
CHRISTOPHER DASILVA
Before Justice P.T. O’Marra
Heard on May 17, and December 19, 2024
Reasons for Judgment on Sentence released on January 9, 2025
Reza Raeesi — counsel for the Crown
Joseph Ciraco — counsel for the accused Christopher DaSilva
P.T. O’Marra, J.:
Introduction
[1] On May 17, 2024, Mr. DaSilva pleaded guilty to possession of child pornography contrary to section 163.1(4) of the Criminal Code of Canada (“Code”). This was a matter that I judicially pre-tried on several occasions. I ordered a pre-sentence report.
[2] On December 19, 2024, I heard submissions. Today, Mr. DaSilva is before me for sentencing. These are my reasons.
[3] The facts that support the plea are as follows.
[4] In September 2022, investigators from the Peel Regional Police Internet Child Exploitation Unit (ICE Unit) began an online ‘peer-to-peer’ file-sharing investigation over the BitTorrent Network. On August 6, 2022, a user was identified as having possession of and making available files believed to be child pornography. The user was observed utilizing a Rogers Communications IP address geo-located in the City of Mississauga.
[5] Nine (9) files could be downloaded via a direct connection to the user. Several of these files were then viewed and determined to meet the Code definition of child pornography. A production order was granted and forwarded to Rogers Communications for the associated account subscriber records. Mr. DaSilva’s address was identified.
[6] On October 18, 2022, a search warrant was granted in relation to Mr. DaSilva’s residence for execution on October 24, 2022. ICE investigators attended the address for its execution.
[7] Upon police arrival, they located Mr. DaSilva and his common-law spouse, Amber Dalziel. During the search of the residence, a ‘child-like silicone sex doll’ was found in Mr. DaSilva’s bedroom and determined to meet the Code definition of child pornography.
[8] As a result, Mr. DaSilva was arrested for possession of child pornography and held for a bail hearing. Investigators located and seized several devices for further investigation, including an ACER laptop computer, five (5) cell phones, and eight (8) storage devices.
[9] The investigation into the ACER laptop produced 35,690 Category 1 images and 194 Category 1 videos. The files the police could download via BitTorrent were on Mr. DaSilva’s ACER laptop.
[10] On December 19, 2024, on consent, the Crown filed a supplementary Agreed Statement of Fact. It stated that police searched 10,450 locally accessed files on Mr. DaSilva’s ACER laptop. Using the search term ‘pthc,’ which means pre-teen hardcore, 755 files were produced with ‘pthc’ in the file path between January 10, 2021, and September 6, 2022.
[11] The images were of prepubescent and pubescent girls and boys sexualized, posing, and engaging in sexual acts. There was a large proportion of anime/cartoon images of explicit sexual acts.
Victim Impact
[12] While I did not receive any victim or community impact statement in this case, the courts now recognize that child pornography offences are not victimless crimes.
[13] Victims of child abuse have to live with the reality that their images and the imagery of their abuse continue to exist and, in many cases, are circulated and viewed by others. If they are not, they live in fear that they will be. This keeps their victimization always current. They are powerless to destroy the images of their abuse permanently, and they are victimized over and over every time their images are sought out, watched, and retained.
[14] There is no doubt that this is a serious offence and that denunciation and deterrence must be front and centre in the sentencing analysis. (See: R. v. Pike, 2024 ONCA 608, at para. 159; R. v. Dunajski, 2024 O.J. No. 5340 and s. 718.01 of the Code.)
The Positions of the Parties
[15] The Crown seeks a sentence of imprisonment in the range of two and a half (2½) years to three (3) years, followed by three (3) years of probation. The Crown also requested ancillary orders, consisting of a SOIRA order for 20 years and a s. 161 order for ten (10) years, with conditions outlined later. As another term of probation, the Crown submitted that there be control over Mr. DaSilva’s access to internet-connected data-capable devices and his association with children under the age of 16 years. The Crown also seeks a DNA sample for the primary designated offence.
[16] The parties agree regarding the forfeiture of specific devices and other items.
[17] The Defence submits that the appropriate sentence in these circumstances is a conditional sentence order for two years less one day followed by twelve (12) months of probation. Counsel does not oppose the corollary orders, except for an exception that he can communicate with family members under 16 years, in the order under section 161 of the Code.
Mr. DaSilva’s Circumstances
[18] I have gleaned much of Mr. DaSilva’s circumstances and background from his PSR and a psychosexual risk assessment dated June 30, 2023, prepared by Dr. Monik Kalia.
[19] Mr. DaSilva is 41 years old and does not have a criminal record.
[20] He was born in Toronto but raised in Mississauga. He has a close relationship with his parents. He had a normal upbringing.
[21] Mr. DaSilva has been in a long-term relationship with Ms. Dalziel. They have lived together for 10 years. They do not have children. Ms. Dalziel remains supportive, but the allegations have created an understandable amount of anxiety and tension in the relationship.
[22] Mr. DaSilva completed his high school education and did enroll in college for some time but dropped out due to a self-diagnosis as having attention deficit hyperactivity disorder (ADHD) and as well as being dyslexic.
[23] He started an arborist apprenticeship program in his late twenties but did not complete it. However, Mr. DaSilva eventually started his own arbour tree service business. He continues to work weekends as an arborist, but presently, Mr. DaSilva works for a construction company that installs watermains and sewers. He is the assistant to the supervisor.
[24] Mr. DaSilva has received additional employment training through his local union. He has enrolled in a course at Sheridan College, Continuing and Professional Studies, which commences in January 2025.
[25] Mr. DaSilva reported that he began to use powder cocaine, LSD, MDMA and psilocybin mushrooms when he started in the arbour industry. During COVID, his cocaine use escalated. He hid his drug use from Ms. Dalziel. Since he was charged, he has abstained from using any illicit drugs.
[26] Ms. Dalziel has observed positive changes in Mr. DaSilva and believes he is on the right path. He exercises daily and has been undergoing counselling.
[27] Mr. DaSilva has supportive prosocial friends and a supportive family. Several friends and family, including Ms. Dalziel, wrote strong letters supporting Mr. DaSilva. I have carefully reviewed the character letters filed in these proceedings.
[28] When the probation officer asked Mr. DaSilva about the offence, he explained that he went down a social media website, “rabbit hole,” and downloaded files like a basket of pictures and videos, then he would browse through them. He acknowledged that the images were of underage girls that aroused him. Ever since he was a teenager, he has been interested in teens but acknowledged that his interest crossed over to “illegal teens.” Mr. DaSilva said he had learned his lesson and would never repeat his offending behaviour. He noted that his cocaine use during the relevant timeframe may have impaired his judgment.
Forensic Assessment
[29] Before pleading guilty to this offence, Mr. DaSilva underwent a psychosexual risk assessment, which Dr. Kalia performed. Dr. Kalia is an experienced clinical and forensic psychologist. His practice includes personality assessment, cognitive assessment, risk assessment and treatment, with a principal interest in forensic evaluation for criminal and civil proceedings. Dr. Kalia is a Psychology Member of the Ontario Review Board.
[30] The assessment focused on determining if there is evidence of personality dysfunction, cognitive impairment or other psychological disturbance which may have influenced Mr. DaSilva's behaviour and judgment in connection with the offence and evaluating Mr. DaSilva’s risk of recurrence moving forward.
[31] Dr. Kalia received materials from the police disclosure supplied by the defence, interviewed Mr. DaSilva at length, and had him undergo several assessments and tests, including phallometric testing. Dr. Kalia also interviewed Ms. Dalziel.
[32] Phallometric testing is an objective measure of physiological sexual arousal. It is considered more reliable than self-reports. The results of the phallometric testing indicated that Mr. DaSilva was sexually aroused to children of both genders and all age groups. His lowest response was to adults of both genders. Overall, the results were indicative of pedophilic interests.
[33] Concerning risk measures, Dr. Kalia rated Mr. DaSilva on the Risk for Sexual Violence Protocol (RSVP). Based on the available information, Mr. DaSilva’s risk factors are his sexual deviancy and intimacy problems with his partner. He does not demonstrate any other risk factors related to sexual violence. Dr. Kalia stated that to Mr. DaSilva’s credit, he has not engaged in position or externalization of blame; instead, he takes full responsibility for his behaviour and is committed to understanding it. Based on the RSVP risk appraisal, the likelihood that Mr. DaSilva will commit an act of sexual violence is in the low range.
[34] Dr. Kalia noted that there are no well-validated actuarial risk assessment tools for child pornography-only offenders. Nonetheless, Dr. Kalia tested Mr. DaSilva with a recently developed Child Pornography Offender Risk Tool (CPORT). The CPORT is a seven-item structured tool to assess the likelihood of future sexual offending over a five-year fixed period with follow-up. The CPORT was developed and validated for use with individuals convicted of child pornography offences. Mr. DaSilva scored on one out of seven items on CPORT. To augment this test, Dr. Kalia screened Mr. DaSilva for psychopathy. Mr. DaSilva does not come close to being a psychopath.
[35] Dr. Kalia’s clinical summary indicated that Mr. DaSilva approached the assessment in a forthright manner. Testing indicated that he has above-average intelligence. The personality evaluation did not suggest the presence of a major mental illness or personality disorder. He confirmed that Mr. DaSilva has a long history of compulsive pornography use that has been his primary tool to assuage feelings of insecurity, low mood, and emotional distress. His pornography use increased after his relationship with Ms. Dalziel deteriorated.
[36] Dr. Kalia stated that based on the nature of the offence, reported history and results of the phallometric testing; it was his opinion that Mr. DaSilva seems to have a problem with pedophilia limited to the use of the internet. His pedophilic arousal can be considered non-exclusive as he has shown a good capacity to establish sexual relationships with adult females. At no time did Mr. DaSilva attempt to justify his actions.
[37] During his interview with Dr. Kalia, Mr. DaSilva acknowledged that he understood that sexual violence causes significant harm to the victims but added that he limited his sexual interest to fantasies only on anime pornography and had never had thoughts of acting on them. He stated that he regretted not seeking professional help to address his issues. He is remorseful for his actions and is coming to terms with the ramifications of his offending behaviour.
[38] Dr. Kalia stated that Mr. DaSilva was motivated to explore the dynamics related to his offences and sexual fantasies in a therapeutic setting.
[39] Clinically, Dr. Kalia found that Mr. DaSilva is a low risk and did not see him reoffending similarly. Since there is no history of rule-breaking behaviour and with counselling, it is Dr. Kalia’s opinion that Mr. DaSilva can be effectively supervised and managed in the community. However, he should continue to abstain from drug use as it can lead to disinhibition.
[40] Dr. Kalia recommended sex-offence-specific counselling to address the underlying issues that lead to his criminal behaviour.
Counselling and Therapy Report
[41] As a result of Mr. DaSilva’s willingness to pursue supportive therapy, on August 23, 2023, Dr. Kalia referred Mr. DaSilva to a social worker, Julie Zikman.
[42] Ms. Zikman prepared a report outlining a treatment summary on behalf of Mr. DaSilva dated December 12, 2024. That report was also filed.
[43] Ms. Zikman has extensive experience in clinical assessment and treatment of sexual offenders.
[44] Mr. DaSilva has attended 29 one-hour sessions between September 12, 2023, and December 30, 2024. He has presented as pro-social, credible, and reliable, as well as being consistent in his resolve to maintain the gains he has made. She commented that Mr. DaSilva’s commitment to therapy is commendable. Mr. DaSilva has engaged in cognitive behavioural relapse prevention counselling. He completed all the homework assignments to assist him in identifying risk factors and developing skills and strategies to avoid recidivism.
[45] Mr. DaSilva has expressed profound remorse and regret for his actions. He has demonstrated insight into his desire to learn more about himself and his risk factors to continue making choices that will mitigate his risk of reoffending.
[46] To her knowledge, Mr. DaSilva has not engaged in any activities that would place him at risk of violating the law.
[47] Nonetheless, suppose Mr. DaSilva is imprisoned for this offence? In that case, Ms. Zikman has recommended that he be placed in the Ontario Correctional Institute in Brampton, which offers specialized treatment for men who have committed sexual offences. After his release, it is suggested that Mr. DaSilva participate in relapse prevention treatment. Ms. Zikman is also willing to continue meeting with Mr. DaSilva to facilitate his referral to the Sexual Behaviours Clinic at CAMH.
Legal Parameters
[48] In this case, the Crown proceeded by Indictment.
[49] The range of punishment is set out in s. 163.1 of the Code. It provides for the offence of possession of child pornography, pursuant to s. 163.1(4)(a):
Every person who possesses any child pornography is guilty of
(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; …
[50] The provision for it being a minimum punishment has effectively been struck down as unconstitutional based on appellate case law. (See R. v. John, 2018 ONCA 702.)
Mitigating and Aggravating Factors
[51] 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 (2020 SCC 9):
A child-centred 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.
[52] The Court in Pike updated a non-exhaustive list of aggravating and mitigating factors that apply to sentencing people who possess child pornography. (See paras. 166 and 173.)
[53] First, I should consider the presence of a criminal record. Mr. DaSilva has no record and is being sentenced as a first offender. This is a significant mitigating factor.
[54] Pike then directed me to consider whether there was any production or distribution of the child exploitation material. It points out that the absence of these factors is not mitigating; instead, it is demonstrative of the absence of an aggravating factor. (See Pike, para. 171.) I do not have any evidence that this was a factor in this case.
[55] As for the collection size, Mr. DaSilva had 35,690 images and 194 videos. The Crown advised that there were 21 hours of child pornography within the videos. This is a massive collection of child pornography. This is a significant aggravating factor.
[56] As the Court of Appeal explained in 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." (See: R. v. Liang, 2024 O.J. No. 4586, at para. 39.)
[57] I do not have evidence of any organization of the collection here, but the number of actual victims is substantial. And while there are more images than videos, the collection has many videos.
[58] Still, in terms of duration, this collection was amassed over many months. When the warrant was executed, Mr. DaSilva had begun downloading child pornography since January 2021. However, Mr. DaSilva self-reported that he first started to download child pornography in 2017.
[59] This is of some importance because "[t]he duration of possession and the frequency of downloading and viewing images increase the moral blameworthiness of people who possess child pornography by showing that their conduct is entrenched and increasing the number of times they victimize the depicted children." (See: Pike, at para. 170.) Mr. DaSilva is morally blameworthy for having persisted in this conduct since 2017. Therefore, I would characterize this behaviour as deep-rooted.
[60] This offending did not occur accidentally or passively. As set out by Pike at paras. 161 and 164, it is a myth that this type of material can fall into your lap. It is and was deliberate. He also downloaded it for potential later viewing.
[61] According to Pike, in addition to duration and frequency"collaboration with other offenders, planning, organization, sophistication, and participation in the child pornography subculture" are relevant considerations. Mr. DaSilva was not part of any child pornography subculture or community, nor did much planning or organization go into obtaining the material.
[62] The seriousness of the nature of the collection is the next consideration. This factor turns on the depicted activity's degree of harmfulness and wrongfulness:
Thus, material depicting more physically intrusive activities that feature additional violence beyond that inherent in sexual offences against children is aggravating because those features may cause additional harm: Warner, at p. 386; Friesen, at paras. 139, 152. Some sentencing judges use image ranking tools to account for this, as in R. v. Jonat, 2019 ONSC 1633. But judges who do so must recognize that the harms and wrongs of such recordings do not depend on penetration and that other forms of exploitation can cause severe emotional harm, even absent additional violence and even if victims appear to participate. For instance, recordings of sexualized posing are serious because they show horrifying and profoundly harmful sexual exploitation: Friesen, at paras. 140-146, 152; Snowden, at para. 102; D.P.P. v. Watson, [2016] VSCA 73, 259 A. Crim. R. 327, at paras. 41-46. (See: Pike, para. 168.)
[63] In this case, the material found on Mr. DaSilva is disturbing. The activities range from posing to penetration in cartoon anime and reality. Children are engaged in specific acts with other children and adults. The degree of harmfulness and wrongfulness is, therefore, significant. While it is not at the high end of the spectrum identified in Pike, at para. 190 (torture, aggressive sexual activity, and bestiality), all of which are horrifying and would cause severe physical and emotional harm to the helpless and actual victims of this abuse. The children depicted are almost exclusively teen and pre-teen females.
[64] The Crown has characterized the collection as very serious. I concur that this material is at the higher end of the range.
[65] The next consideration is the risk that Mr. DaSilva may pose to children.
[66] Dr. Kalia opined that Mr. DaSilva presents a low risk of re-offending as it relates to child pornography. However, the Crown challenged it to a certain extent due to Mr. DaSilva’s comments on page 6 of the report, which stated, “When he was looking at illegal images, he justified to himself that they are just images and not hurting anybody.” Mr. DaSilva seemed to believe that the anime child pornography was less aggravating. I accept Dr. Kalia’s opinion. The assessment properly supported his opinion. His opinion was assisted by the intensive therapy that Mr. DaSilva has undertaken, which has helped him understand the harmful impacts and suffering that child pornography has on victims.
[67] I accept that Mr. DaSilva does not present a real risk of committing hands-on offences against children. He is an online offender – which, to be sure, is still a perpetrator of abuse – but he has not shown any notable interest in children in his community or surroundings. (See R. v. Dunajski, para. 47.)
[68] Mr. DaSilva does not deny or minimize the wrongfulness of child pornography.
[69] I then turn to Mr. DaSilva’s good character, employment situation, and the stigma arising from this charge.
[70] These are noted as less significant factors and given limited weight in 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".
[71] Mr. DaSilva recognized his morally blameworthy actions. He stated that when downloading the material, he was taken “down a rabbit hole as it sparked my interest.” (See: Dr. Kalia’s report at p. 4.) He acknowledged that he would search for “preteen, lolly and younger looking female pornography.” Still, his character otherwise speaks to his potential for rehabilitation. He has been a productive member of society and has a positive support network, including his common-law spouse.
[72] I believe that Mr. DaSilva has good prospects for rehabilitation.
[73] I next consider his level of insight and remorse. 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.
[74] I accept that Mr. DaSilva is genuinely remorseful, embarrassed, and ashamed of his conduct. He has some insight into what led him to commit this offence and garnered greater insight into the harm he thereby occasioned on real children. He accepts that he is responsible for these harms. He acknowledged that his actions were illegal and immoral. Dr. Kalia noted on page 13 of his report about Mr. DaSilva’s insight: “To his credit, he has not engaged in minimization or externalization of blame; rather, he takes full responsibility for his behaviour and presented as committing to understanding it.” Therefore, these factors and his positive results on the RSVP and CPORT speak to Mr. DaSilva’s low risk of re-offending. I believe he has been deterred from engaging in such conduct in the future.
[75] I also consider Mr. DaSilva’s guilty plea. I am informed that he intended to plead guilty from the outset. He took full responsibility for his actions and submitted himself to a psychosexual risk assessment and sexual offender therapy to enable greater insight into his conduct.
Governing Legal Principles
[76] Section 718 of the Criminal Code sets out the purpose and objectives of sentencing:
718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or the community and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or the community.
[77] In other words, the purposes of sentencing are to be accomplished through the imposition of "just sanctions" that reflect one or more of the traditional sentencing objectives: denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation to victims, the promotion of a sense of responsibility in offenders and the acknowledgment of the harm done to victims and the community.
Sentencing Range for Possession of Child Pornography
[78] In Pike, at para. 174, the Court of Appeal indicated that it was time to update the sentencing ranges in possession of child pornography cases to account for Friesen and the legislative increase to maximum sentences.
[79] The eighteen-month upper end of the range was previously increased to a three-year sentence for possession as proportionate. (See R. v. L.M., 2008 SCC 31, at paras. 8, 53-54.) In pre-Friesen cases and cases before 2015, sentencing judges raised the upper end of the range from three-one-half to four years. (See R. v. Lynch-Staunton, 2012 O.J. No. 313 at para. 79; R. v. Branco, 2019 ONSC 3591, at paras. 23-24, 101.) However, the Pike decision has increased it to five years.
[80] The Court of Appeal in Pike declined "to set a lower end for the possession range because ... possession can be committed in various 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 this could merely reflect the various circumstances in which the possession offence can be committed. (See para. 175.)
[81] The Court recommended that sentencing judges situate cases on the range by assessing the aggravating and mitigating factors by comparing them to the facts of decided cases. The most useful precedents are post-Friesen, post-2015 legislative change cases, especially those that, like the Court's decisions in Inksetter, John, McCaw, Olivetti, and R. v. Rule, 2023 ONCA 31, which show a deep understanding of the gravity and degree of responsibility of those possessing these images consistent with these reasons: Friesen, at paras. 108-110. (See para. 178).
[82] Crown provided the following cases to support its position.
[83] In R. v. McCaw, 2023 ONCA 8, 165 O.R. (3d) 179 (CA), the offender pleaded guilty to one count of possession of child pornography. He was a repeat offender, having been convicted of the same offence in 2002 and receiving a one-year conditional sentence. In 2011, he was convicted of possessing and distributing child pornography and received a sentence of two years less a day with three years of probation. Given his record, the Crown sought a three-year penitentiary sentence. Counsel submitted that a fit sentence was time served, followed by three years' probation. Considering the offender's challenges, his guilty plea and acceptance of responsibility, the lengthy gap in his record and his pre-sentence custody and house arrest bail, the judge ultimately imposed what purported to be a two-year conditional sentence notwithstanding that a conditional sentence had to be less than two years. The Court found that the sentence was manifestly unfit and sentenced the offender to three years less time served.
[84] In R. v. Subia, 2022 ONSC 1693, the 35-year-old offender received a sentence of three years. He had entered guilty pleas to various offences, including possessing and accessing child pornography. The pleas were entered following a ruling on a pre-trial motion. While the offender had a related criminal record for accessing child pornography, he was said to have "no violent tendencies" and had attended several sessions with a psychotherapist before sentencing. He had pedophilic tendencies and was described as a moderate risk of re-offending. The size of the collection of images (3396 unique images, no videos) was "relatively large and would have taken some time to collect." The nature of the collection was at "the high end of abusive material."
[85] In R. v. Kardaal, 2022 ONCJ 441, just over 13 months was imposed for possessing 276 images and no videos. The offender was elderly and had significant health issues. He was also a first offender and had strong family support. Some material, however, depicted toddlers and infants, and one image depicted bondage.
[86] In R. v. Russell, 2020 O.J. No. 3841, the offender pleaded guilty to possessing child pornography. The size and nature of the collection was an aggravating factor. He had a collection of 1859 videos and 1042 images, which included all forms of intercourse, including bondage and bestiality. The offender had anxiety and depression and no criminal record. However, he had limited insight. The sentencing judge discounted the risk assessment because of the insufficient credentials of the assessor, who was a family physician with no specialty in sexual behaviours or forensic psychiatry. The offender was sentenced to two years imprisonment and two years probation.
[87] In R. v. Kingdon, [2020] O.J. No 1004, the offender pleaded guilty to distributing and making child pornography available. The offender interacted with other individuals on Skype and shared materials. Eight images were transmitted to two different recipients over five months. The nature of the collection was aggravating. There were very young children and very sexually intrusive acts. Some of the children appeared to be between two and four. Children were degraded in some of them. The Court referred to the images as category 3 or 4 on the Oliver scale. The quantum was eight images shared, 121 images, and 61 videos found. The offender was 32 years old and did not have a criminal record. He was remorseful and understood the implications of his conduct on others. He had met with a doctor willing to engage in counselling and programming, was a strong candidate for rehabilitation, and had a supportive family. The Court found that the nature of the collection and the fact that he was trading the material were aggravating factors. The sentence was 15 months incarceration and 18 months probation.
[88] In R. v. Bekmambetov, 2021 ONSC 6219, the offender collected material for over five years. He had 9500 images and 283 videos in his possession and had been diagnosed with pedophilia. He was sentenced to two years following a guilty plea.
[89] In R. v. Snead, 2021 ONSC 7017, B.P. O'Marra J. allowed the Crown appeal from an eight-month conditional sentence for possession of child pornography concerning conduct in March and November 2018. He held that the conditional sentence "failed to reflect the well-established need for general deterrence and denunciation for such offences": R. v. Snead, supra, at para. 19. The offender had participated in Zoom rooms where child pornography was streamed with over 50 other individuals watching.
[90] Justice B.P. O'Marra stated at paras. 20-22, and 26:
[20] The possession of child pornography harms children. It is child abuse: R. v. Sharpe, 2001 SCC 2; R. v. Inksetter, 2018 ONCA 474, para. 22.
[21] Viewers and purchasers of child pornography fuel the market for producing "this odious material." The victimization of children must be opposed with unremitting purpose. Condemnation through the imposition of harsh sentences is necessary to fight against the evil of child pornography: R. v. Rytel, 2019 ONSC 5541, para. 28.
[22] The primary focus for sentencing in such cases has long been general deterrence and denunciation: Inksetter at para. 16; John at para. 41.
[26] Parliament has recognized the profound harm of sexual offences against children and has determined that sentences for such offences should be increased. The enactment of s. 718.01 of the Criminal Code relating to offences against children confirms that the paramount consideration shall be to the objectives of denunciation and deterrence. This calls for more severe sanctions for such offences: R. v. Friesen, 2020 SCC 9, paras. 95, 101-105.
[91] A custodial sentence of 12 months for the offence of possession of child pornography was imposed on appeal concerning the principles of denunciation, general and specific deterrence, and rehabilitation. (See Snead, at paras. 35 and 36.)
[92] In R. v. Elkaderi, 2022 ONCJ 114, the offender pleaded guilty to distributing, making available, and possessing child pornography. For over three years, the offender searched the dark web in search of trading child pornography. He also used the Kik app. The nature of the materials included penetration and child-on-child sexual abuse. The quantum was 486 images and 50 videos. The offender was 24 years old and had no criminal record. The offender had demonstrated good insight and participated in counselling, which made him a low future risk to re-offend. The collection was not as depraved as others seen in court. However, the amount of time the accused had indulged in engaging and viewing these materials and the collection was described as significant. The sentence was 20 months incarceration followed by two years probation.
[93] In R. v. Murty, 2021 ONSC 2801, the offender pleaded guilty to possessing and making available child pornography. He was sentenced to three years. The size of the collection was "significant." He had collected 746 images and 801 videos. The contents involved boys under age 12 or 13 with an emphasis on babies (some described as a few days or a few weeks old) and toddlers and involved invasive sexual conduct "at the higher end of relative depravity." The offender was 49 years old, had no prior record, and had an employment history. He had difficult personal circumstances, which included being rejected by his parents because he was gay. He had become a recluse, suffered from anxiety and depression, and had attempted suicide. He abused narcotics to cope. He was found to be at a moderate risk of re-offending by committing a future child pornography offence. In arriving at this sentence, the trial judge rejected the suggestion that a conditional sentence was fit since it would not correctly address the principles of denunciation and deterrence. However, in fixing the length of the sentence, she noted the principles in R. v. Priest and R. v. Borde to the effect that a "first penitentiary sentence should be as short as possible." The sentence was three years less than the time served of ten months, for a further sentence of two years, two months to serve in custody.
[94] In R. v. Schock, [2017] O.J. No.7242, the offender pleaded guilty to both making child pornography available and possession of child pornography. The offences were committed on June 27, 2015. At the time, both offences carried a minimum sentence of one year in jail. The making available offence was committed on that day when the offender uploaded and shared a single image with 100 IP addresses. He was found in possession of 204 videos and 4306 images. Most of the videos depicted sexual activity with adults. Children as young as two years old were seen. There was bondage; a child was hogtied, and another bound with duct tape and rope; group sex; urination; sexual acts with animals; and attempted penetration of a two-year-old. The offender was 24 years old at the sentencing date, with no prior record, and employed. He had a history of being sexually assaulted and being bullied. A sexual behaviours assessment was conducted, in which response to paedophilic stimuli was observed. The assessment concluded that he had paraphilic sexual interests. The offender was sentenced to one year on the making available charge and two years consecutive on the possession charge, for a total custodial sentence of three years.
[95] The Defence provided the following cases.
[96] In R. v. King, 2020 ABPC 219, the offender possessed, on several electronic devices, a collection of child pornography containing 1112 images and 79 videos. He also possessed over 500 written child pornography stories. The offender was 40 years of age and without a criminal record. The Crown sought 30 months of incarceration; the Defence suggested a conditional sentence. The Court considered Friesen, supra, and wrote at para. 27:
In R. v. Friesen, supra, the Supreme Court of Canada had before it an appeal of a sentence imposed in relation to an offence of sexual interference with a young child. However, the Court gave general guidance on the subject of sentencing on all sexual offences involving children (paragraph 44). Indeed, possession of child pornography was one of the offences listed in the Appendix which the Court created to show that Parliament had increased maximum sentences for sexual offences involving children.
[97] The sentencing judge found that the appropriate sentence for the offender would be less than two years and that a sentence served in the community would not endanger the community's safety; however, he ultimately determined that a CSO would not meet the principles of deterrence and denunciation.
[98] Nonetheless, the sentencing judge wrote in para. 36:
I wish to be clear: I am not saying that a CSO is never an appropriate sentence for possession of child pornography; such a statement would constitute an error in law. An example of a CSO being imposed for a charge of possession of child pornography, with the learned sentencing judge specifically considering the decision in R. v. Friesen, supra, is R. v. Nepon, 2020 MBPC 48 (Man. Prov. Ct.). The sentencing principles to be applied remain constant; it is varying circumstances amongst the cases which cause differing sentencing outcomes.
[99] In R. v. Nepon, 2020 MBPC 48, the offender was sentenced to a 12-month conditional sentence followed by two years of probation. He was partially blind, was on the autism spectrum disorder scale, and had been assessed to be at a low risk of reoffending.
[100] In R. v. Jongsma, 2021 ONSC 796, the offender pleaded guilty to possession of child pornography. He had in his possession 24 videos depicting children between the ages of four and twelve years old engaged in sexual acts with adults. The offender was a victim of sexual abuse. In para. 69, the Court stated, “The enormity of this harm must be considered when a former child victim of sexual assault is being sentenced for sexual offences against children.” The Court imposed a one-year conditional sentence.
[101] In R. v. Friesen, 2021 ABPC 223, affirmed at [2022] A.J. No. 523, the offender pleaded guilty to one count of possession of child pornography. He had 100 unique images of child pornography depicting girls between six and 16 years of age showing nudity, fellatio, and intercourse. He had also previously uploaded images and videos of child pornography to various chat services—some of these depicted sex and fellatio between underaged boys and underaged girls. He was 21 years old with no criminal record at the time of arrest. He had previously suffered from substance abuse, his mother died from opioid addiction, and he was diagnosed with persistent depressive disorder. He understood the gravity of his offence, attended extensive therapy sessions at the Rocky Mountain Program and was at a low risk of reoffending. The publicity around his arrest was found to be a mitigating factor. He was sentenced to a conditional sentence of 24 months, followed by two years probation.
[102] In R. v. Dutchession, 2021 ONCJ 480, pleaded guilty to possession of child pornography, which included 7537 images, the majority of which were prepubescent female children between three and 14 years old. He was 51 years old with no criminal record and had served in three combat zones as a military member. He actively participated in treatment, expressed remorse, understood the gravity of the offence, and was considered a low risk. It was found that his military service resulted in mental health issues. There had been some delay associated with the case; however, during that period, the offender had undergone extensive, successful therapy. The Court was concerned he would not receive sufficient rehabilitation in a provincial facility. A conditional sentence was imposed for two years, less one day, followed by 24 months of probation.
[103] In R. v. M.M., 2022 ONCA 441, [2022] O.J. No. 2527, the Court of Appeal agreed that the sentencing judge erred in principle, and the conditional sentence was demonstrably unfit, considering Friesen (SCC), supra. The offender was convicted of possessing and making child pornography and sentenced to a 15-month conditional sentence and 12 months’ probation. The victim was the foster daughter of the offender's aunt. She met the offender when she was 12 years old. The offender and the victim texted each other over three years. The text messages became sexually charged, and the offender told the victim of his romantic feelings for her. During their texting, the victim sent the offender photos of her breasts and a video of her masturbating. The offender sent the victim photos of his penis.
[104] The offender and the victim planned to have sex following the victim’s 16th birthday, but the trial judge found there was no evidence they did so. The offender conceded that the images sent to him by the victim met the definition of child pornography and that he possessed them. He also conceded that he arranged to have sex with the victim. The victim was 15 years old at the time of the offences. The appellant was 31.
[105] The Court of Appeal accepted the Crown's submission that a 15-month sentence of imprisonment plus 12 months' probation would have been appropriate, albeit at the low end of the range. However, in this case, the offender had already served approximately 12 months of his 15-month conditional sentence. It was decided that the interests of justice would not be served by substituting a 15-month sentence of imprisonment. The effect would require the offender to serve only a brief portion of that sentence before statutory release. However, it would not be appropriate to impose a sentence of imprisonment but stay its enforcement. This would shorten the offender's sentence by relieving him of the burden of serving the remainder of his conditional sentence. He was required to complete his conditional sentence and one-year probation period.
[106] In R. v. Rule, supra, the offender appealed a 22-month jail sentence and argued that ruling out a conditional sentence was one of the reviewable errors. The offender was 70 years old and had an extensive collection (23,600 images). Some of the victims were identifiable and made victim impact statements, and the duration and frequency of accessing and possession were high. Despite several serious health issues and his being the primary caregiver for his 92-year-old mother, the Court upheld the sentence. Most notably, the Court of Appeal said in para. 8:
We are satisfied that having regard to the nature of the offence, the size of the collection, the duration of possession and frequency of examination of the images, it was appropriate for the sentencing judge to rule out a conditional sentence which would have been inconsistent with the fundamental purposes and principles of sentencing.
[107] There has been a clear signal from the higher courts that sentences for the possession of child pornography must increase.
Would a conditional sentence be a fit and appropriate sentence?
[108] The Defence seeks a conditional sentence order.
[109] The Court must consider the provision for this type of sentence, set out in s. 742.1 of the Criminal Code. The relevant provisions are as follows:
742.1: If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if
(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2;
(b) the offence is not an offence punishable by a minimum term of imprisonment.
[110] The Crown is requesting a penitentiary sentence. The parties do not agree that a reformatory sentence should be imposed. In my view, for the circumstances of this offence, the guilty plea, Mr. DaSilva being a first-time offender, and the case law, the appropriate range of sentence that aligns with the principles of general deterrence and public denunciation falls between a mid to upper reformatory sentence and a low-end penitentiary sentence.
[111] A significant aggravating factor in this case is the volume and nature of Mr. DaSilva’s collection and the length of time he was involved in this criminal activity. Phallometric testing results indicate that Mr. DaSilva is aroused by children of both genders in all age groups. Overall, the results are indicative of pedophilic interests.
[112] However, what does mitigate the sentence in Mr. DaSilva’s case is that he has demonstrated insight and is committed to change and rehabilitation. This does distinguish his case from others.
[113] For instance, in R. v. Insanally, 2024 ONSC 722, the offender was sentenced to custody for two years less a day. He had little insight and had also pled guilty to making child pornography available. He had 222 videos and 2369 images ranging from infants to early teens. The material also included bondage.
[114] Similarly, in R. v. A.M., 2023 ONCJ 181, the 38-year-old offender was convicted of possession of a small collection of child pornography. The trial judge did not find any exceptional circumstances to justify a conditional sentence. The offender was sentenced to nine months in the reformatory, followed by 18 months of probation.
[115] Post-Friesen and Pike, the legal sentencing landscape has changed, and special considerations usually apply when conditional sentences are deemed appropriate in child pornography cases.
[116] As the Court of Appeal stated in R. v. M.M., supra, at para. 15:
The Supreme Court's instructions from Friesen could not be clearer: sentences for sexual offences against children must increase. There are no qualifications here. Sentences have been too low for too long. Denunciation and deterrence are of primary importance: R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, at para. 3. Those who commit sexual offences against children must understand that carceral sentences will ordinarily follow.
[117] The Court of Appeal noted further in para. 17:
Conditional sentences for sexual offences against children will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate - for example, where it gives rise to a medical hardship that could not adequately be addressed within the correctional facility. It would not be appropriate to enumerate exceptional circumstances here and we make no attempt to do so. Suffice it to say that no exceptional circumstances are present in this case. A sentence of imprisonment should have been imposed.
[118] This case presents some aggravating factors and nothing exceptional or otherwise sufficiently mitigating, including Mr. DaSilva's circumstances, to render a conditional sentence appropriate. Denunciation and deterrence must remain at the forefront of the analysis.
[119] Some factors may have affected Mr. DaSilva’s judgment at this time of his life, such as his drug use; however, in my view, he should have immediately recognized the wrongfulness of the conduct and refrained from it. Mr. DaSilva instead invaded the privacy of many children, and he indirectly instigated the production and distribution of child pornography and, thus, the sexual abuse and exploitation of children. This was neither a momentary lapse nor an isolated act. His sentence will, therefore, be served in custody.
What is the fit and appropriate sentence for this offender?
[120] Imposing a just and appropriate sentence can be difficult for a judge. However, as difficult as determining a fit sentence can be, the process has a narrow focus. It aims at imposing a sentence that reflects the circumstances of the specific offence and the attributes of the individual offender. Sentencing is not based on group characteristics but on the facts relating to the specific offence and offender, as revealed by the evidence in the proceedings.
[121] As Doherty J.A., in delivering the judgment of the Ontario Court of Appeal in R. v. Hamilton, 186 C.C.C. (3d) 129, aptly stated:
... A sentencing proceeding is also not the forum in which to right perceived societal wrongs, allocate responsibility for criminal conduct as between the offender and society, or "make up" for perceived social injustices by the imposition of sentences that do not reflect the seriousness of the crime.
[122] Generally, it is recognized that a fit sentence is the product of the combined effects of the specific offence's circumstances with the specific offender's unique attributes. The judge must also consider the nature of the offence, the victims, and the community. As Lamer, C.J. (as he then was) noted in R. v. C.A.M., [1996] 1 S.C.R. 500 sentencing should focus on the individual, the victim, and the community. He stated:
[92] ... It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime ... Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred. ...
[123] Possessing child pornography is a grave offence that causes significant harm to children. Therefore, the principles of denunciation and general deterrence must be the paramount considerations.
[124] Considering the mitigating circumstances and the emphasis on the principle of restraint, I also recognize the necessity of delivering a strong denunciatory and deterrent message to Mr. DaSilva and the community. Therefore, I believe the appropriate sentence for Mr. DaSilva should be 18 months of incarceration, followed by two years of probation. The probation should include terms and conditions focused on addressing public safety needs and supporting his rehabilitation.
[125] I recommend that Mr. DaSilva serve his sentence at the Ontario Correctional Institute.
[126] Next, I turn to the terms and conditions for the probation and the ancillary orders.
The Probation Order
[127] During Mr. DaSilva’s probation, he shall:
(a) Keep the peace and be of good behaviour.
(b) Report to probation as directed within 48 hours from the conclusion of his period of imprisonment.
(c) Notify the Probation Officer of any changes of address or employment within 48 hours of those changes coming into effect. Maintain full-time employment either with his own business or as an employee.
(d) Continue actively participating in and completing any counselling or rehabilitative programming as directed by his Probation Officer, including counselling for sex offences.
(e) Sign releases as required to enable the Probation Officer to monitor counselling and therapeutic compliance.
(f) Abstain from being in the company of a person under the age of 16 unless in the direct company of any adult approved of in writing by the Probation Officer.
(g) Abstain from accessing the internet or other digital network, with the following exceptions:
(i) On Mr. DaSilva’s personal device, he provides his Probation Officer with the make, model, serial number, service provider, and any phone number connected with the device.
(ii) He may possess an internet-capable device and use it to access the internet by the conditions below; however, he must do so on a device for which he is the sole owner and user. Further, the internet service must be in his name or provided through his employer or the educational institution he attends, if applicable.
(iii) He shall not use any encryption software or security program designed to prevent access to the contents of his internet-capable devices or take independent action to encrypt any digital storage devices in his possession. He shall not install or permit any software or service designed to defeat forensic analysis of his internet-capable device to be installed on his internet-capable device.
(iv) He shall not use or permit any program or service designed to allow anonymous use of the internet (e.g., TOR browser) to be installed on any device in his possession.
(v) He shall not use or permit any scrubbing software or software that saves files in an encrypted fashion to be installed on any device in his possession.
(vi) He is not to make any post or advertisement that targets persons under the age of 16, including any advertisement for sales, services or products intended for use by persons under the age of 16.
(vii) He is not to access any peer-to-peer file directly or indirectly sharing networks (including but not limited to Motherless, LimeWire, Gnutella, Bearshare).
(viii) He is not to access or participate in chatrooms, bulletin boards or other social media that discuss or promote child exploitation, child pornography, sexualized images of children or other child exploitation material.
(ix) He may use any other telecommunication device under the direct and constant supervision of any person approved in writing by the Probation Officer.
(x) Under no circumstances shall he be permitted to use any telecommunication device to access the internet or other digital network to access child pornography, access or participate in chatrooms, bulletin boards or other social media that discuss or promote child exploitation, child pornography, sexualized images of children or other child exploitation material.
Ancillary Orders
[128] Possession of child pornography is a designated offence under s. 490.01(1) of the Criminal Code. Accordingly, it is appropriate that I make an order under s. 490.012(1) requiring Mr. DaSilva to comply with the Sex Offender Information Registration Act (SOIRA). The order is effective today and will continue in force for 20 years in accordance with s. 490.013(2)(b) of the Criminal Code.
[129] Possession of child pornography is a primary designated offence under s. 487.04(a)(i.8), and a DNA order is mandatory under s. 487.051(1). A DNA sample shall, therefore, be provided.
[130] It is appropriate to make an order under section 161(1)(a), (b), and (c) for ten years from the date of this order.
[131] Under section 161(1)(d), for ten years, Mr. DaSilva's use of the Internet shall be in accordance with the following conditions:
a) He may possess an internet-capable device and use it to access the internet in accordance with the conditions below; however, he must do so on a device for which he is the sole owner and user. Further, the internet service must be in his name or provided through his employer or the educational institution he attends, if applicable.
b) He shall not use any encryption software or security program designed to prevent access to the contents of his internet-capable devices or take independent action to encrypt any digital storage devices in his possession. He shall not install or permit any software or service designed to defeat forensic analysis of his internet-capable device to be installed on his internet-capable device.
c) He shall not use or permit any program or service designed to allow anonymous use of the internet (e.g., the TOR browser) to be installed on any device in his possession.
d) He shall not use or permit any scrubbing software or software that saves files in an encrypted fashion to be installed on any device in his possession.
e) He is not to make any post or advertisement targeting persons under the age of 16, including any advertisement for sales, services or products intended for use by persons under 16.
f) He is not to access any peer-to-peer file directly or indirectly sharing networks (including but not limited to Motherless, LimeWire, Gnutella, and Bearshare).
g) He is not to access or participate in chatrooms, bulletin boards or other social media that discuss or promote child exploitation, child pornography, sexualized images of children or other child exploitation material.
[132] There will be a Forfeiture Order.
Released: January 9, 2025
Signed: Justice P.T. O’Marra