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(3) 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(3), read as follows:
486.4(3) CHILD PORNOGRAPHY — (1) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsections 486.4(1) to (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Ontario Court of Justice
DATE: 2025-03-17
COURT FILE No.: Pembroke 998 23-37300063
BETWEEN:
HIS MAJESTY THE KING
— AND —
B.M.
Before Justice J.R. Richardson
Heard on June 11; December 9, 2024; January 8, 2025
Reasons for Judgment released on March 17, 2025
James Bocking — counsel for the Crown
Mark Huckabone — counsel for the accused
Introduction
[1] The issue in this case is the appropriate sentence for a 68-year-old man who surreptitiously recorded pornographic images and videos of two neighbour boys as they showered in his bathroom.
Facts
[2] On June 11, 2024, B.M. entered guilty pleas to the following offences:
a) Making child pornography, contrary to section 163.1(2) of the Criminal Code; and
b) Surreptitiously making a visual recording of a person in circumstances that gave rise to a reasonable expectation of privacy, contrary to section 162(1) of the Criminal Code.
[3] The Crown elected to proceed by Indictment.
[4] The offences took place in the Township of Bonnechere Valley between January 1, 2019 and February 3, 2023.
[5] AX and BX[^1] are two brothers who reside with their parents. They are neighbours to B.M.
[6] AX and BX often worked at the home of B.M. doing odd jobs. After these odd jobs, some of which were dirty jobs, B.M. invited the boys to take a shower in his bathroom.
[7] The floor in the bathroom was heated. B.M. also told the boys that there was an air diffuser in the bathroom which needed to be plugged in before they took a shower. B.M. laid out a towel and slippers for the boys to use after they had showers. B.M. would often invite the boys over to do some work. He always suggested that they have a shower after working.
[8] At first the boys thought nothing of it and they routinely had a shower at B.M.’s house after they did their work. The frequent invitations to the boys to have a shower, coupled with reminders to plug in the diffuser made them suspicious.
[9] On February 2, 2023, AX went over to B.M.’s residence to assist him with some chores. After the chores, as is the normal course, B.M. invited AX to have a shower while he made dinner. AX went into the bathroom and discovered a cord that led to four USB ports. He found cameras and memory cards.
[10] Once he discovered this, AX ran the shower as if to simulate that he was using it. He got dressed. He took photos of what he saw and sent them to his brother. He then went home and told his parents.
[11] His parents called Police.
[12] Police executed a search warrant at B.M.’s residence. They recovered memory cards with pornographic images of AX and BX. Police also located burned circuit boards and hard drives in the fireplace.
[13] After hearing the plea, I ordered the preparation of a Pre-Sentence Report and a report pursuant to section 21 of the Mental Health Act.
The Pre-Sentence Report
[14] B.M. is 68 years of age.
[15] He was born in Pembroke and raised on a beef farm near Cormac, Ontario. His father also worked as a municipal civil servant.
[16] He is one of four children. There were no issues with addiction or domestic violence in his home growing up.
[17] Like many rural children in Ontario in the 1950s and early 1960s, B.M. went to school in a one-room schoolhouse until about Grade 5. He was then bussed to a school in Eganville where he finished his elementary school. For high school, he was also bussed to Eganville to attend Opeongo High School.
[18] While in high school, he was active in athletic council and student council. He was the student council president in his final year at Opeongo. He also represented Opeongo on a school board advisory committee.
[19] B.M. moved to Ottawa to attend University at Carleton, where he earned his degree in law and political science.
[20] He moved back home after university and worked on the farm. While he was doing this, he was elected and served on his municipal council for five years.
[21] He accepted a short-term contract for employment with the federal public service and his career took off. He was a member of the federal civil service for over 30 years. He retired in 2020. When he retired, he was an Assistant Commissioner for the Canada Revenue Agency with responsibility for, among other things, 6800 employees. He has had a distinguished career; he has won several awards and he has represented Canada internationally.
[22] After he retired, he returned home to Cormac to help look after his parents. He lives very close to their residence in a home that he had built 35 years ago.
[23] B.M. is legally blind. B.M. started having difficulties with his sight about twenty years ago. He has been diagnosed with corneal dystrophy. He is not able to make out anything clearly. He must dim the lighting to read, wear strong prescription glasses and use a magnifier. B.M. also has psoriasis and uses a medicated shampoo to prevent bleeding in his scalp. Aside from these issues he is in good health.
[24] B.M.’s parents are still alive. His mother is 89 and his father is 94. They live on the family farm where his father, despite his age and the onset of some dementia, still has 25 head of cattle.
[25] B.M. is their primary caregiver. He lives close to them and makes their lunch every day. He assists with the cattle and other chores around the house. His mother still drives and she takes B.M. to town for his errands because he is unable to drive due to his blindness. He assists his parents with paying their bills.
[26] B.M. is close with his family. He has healthy relationships with all of his siblings and all but one of his seven nieces and nephews. One of his nephews has become “distant” since the charges arose. He has provided financial, academic and emotional support.
[27] The certainty of B.M.’s incarceration has made it difficult for the family. Other siblings will have to step up to replace B.M.’s role with his parents. Some do not live in the area.
[28] B.M. never married. He has no children.
[29] B.M. expressed significant remorse in relation to the complainants.
The Section 21 Report
[30] I ordered the preparation of a report pursuant to section 21 of the Mental Health Act. The report was prepared by Dr. Sanjiv Gulati, who is the Associate Chief of the Integrated Forensic Program and Director of the Sexual Behaviours Clinic at the Royal Ottawa Hospital.
[31] I will not repeat information that was already set out in the Pre-Sentence Report.
[32] During his meetings with Dr. Gulati, B.M. admitted “full responsibility” for his offences and “showed large amounts of remorse”. Although he reported that at the time, he did not think he was doing anything wrong, he now understands and expresses sympathy for the pain caused to the victims and their family. He also expressed sadness about breaking the trust which the victims and their family had in him.
[33] He did not think he had a sexual problem of any kind. He expressed concern for how his parents will cope if he is incarcerated. He expressed hope that there were minimal victim impacts.
[34] B.M. stated that he was “raised Catholic”. He now identifies as “mildly religious” and a “soft Catholic”. He takes his parents to church.
[35] He stated that he was “mildly social” with others. He did not describe himself as a “loner”, but acknowledged spending a lot of time by himself and being “comfortable in my own niche”.
[36] In addition to the medical problems outlined above, he has had pain in his rotator cuff as a result of a fall. He also stated that some melanomas were discovered on his back. At the time that the report was written, those were under investigation.
[37] He does not have any psychiatric history.
[38] He considered suicide for the first time in his life after the charges were laid.
[39] With respect to his sexual orientation, he told Dr. Gulati:
I am gay, but I am not out. I did have a good female friend for a decade but it was platonic. She was a good friend. I had other good friends over the years that filled emotional intimacy roles. But I didn’t talk about my sexuality. Friends never explicitly or even implicitly asked. People I guess just minded their business. They may have assumed. I don’t know.
I don’t feel an obligation to share my sexual orientation. With my charges some of my family now knows, like my siblings but I am not going to tell my parents at their age with everything that they are going through on their own, like old age and dementia.
I think I was ashamed of it [being gay] when I was younger and to a certain extent I still am ashamed. I was always afraid that the information would hurt my parents.
[40] B.M. admitted to having one incident of oral sex while travelling internationally. Apart from that, he has never had a sexual relationship with anyone. He told Dr. Gulati:
The whole anal sex thing never appealed to me. You see it in pornography but it was just never on the top of my list. If you are in the closet, you have got to stay in the closet so you just never step over that line.
[41] He also expressed concern that if he disclosed his sexual orientation it would put his job at risk. He stated:
Then there was my top secret security clearance which started early in my career with the government. I sort of felt like I had to either disclose it [my sexuality] early or I needed to not do things that could put my job at risk. So that’s how I felt at the time. It was the understanding that if I engaged in homosexual activities I would expose myself to blackmail. I was in positions where I had knowledge where it would have been of interest to other parties where I could have been blackmailed.
[42] He added:
I felt more of a loss from the friendship and companionship that a relationship would have given me than the loss of sex. I didn’t feel an overwhelming need to go out and hook up. It’s not to say I wouldn’t see an attractive man and feel interested. I wasn’t asexual. I think those circumstances led me more to a life of celibacy, although I was masturbating to thoughts of men.
[43] He also stated:
I know there isn’t anything wrong with being gay. It has more to do with my parents. With the consequences of telling other people. My worry about being gay 20 years ago would have been 8/10, now I would say is a 3/10. Now that my job with high security clearance is over, it is less pertinent. But I also do live in the country and people can be a bit more conservative or a bit ‘red neck’ so its better to keep it in private. I don’t think I am repressed.
[44] B.M. stated that he now masturbates six to eight times a month.
[45] He admits to watching pornography when he masturbates. He stated that he is a member of a legal site that focusses on gay pornography.
[46] He denied any sexual interest in children or animals. He also denied using internet chat lines, web cameras, social media, bathhouses and swing clubs. He denied ever paying for sex. He has never had any sexually transmitted disease and stated that when he was in his early 20s he also abstained from sex due to fear of AIDS.
[47] Testing revealed that B.M.’s testosterone level was within the normal range.
[48] Other psychometric testing revealed:
a) A low score for anger.
b) No history of substance abuse.
c) He does not endorse any sexual statements typically endorsed by sexual offenders against adult women or those typically endorsed by men who have sexually abused children.
d) He scores within the expected range for Impulsiveness.
e) There was no evidence that he was attempting to present himself in a positive light or minimize his personal shortcomings.
[49] Phallometric testing revealed that he responds to adult consensual homosexual and heterosexual sex. With respect to the heterosexual sex, he stated that he found the man in the video attractive. This is consistent with other aspects of the report where B.M. indicated that he sometimes masturbates to heterosexual pornography because he finds the men attractive.
[50] Phallometric testing also revealed that he did not respond positively to nonconsensual heterosexual adult sex, heterosexual pedophilia or homosexual pedophilia.
[51] Using the Static-99R Risk Assessment tool, Dr. Gulati scored B.M. as a low risk to reoffend.
[52] Dr. Gulati diagnosed B.M. with Adjustment Disorder brought about by the charges. Since being charged, B.M. has had nightmares and panic attacks. He dwells on incarceration. As noted above, he expressed some suicidal thoughts. He has bouts of anxiousness.
[53] Other than this Adjustment Disorder, B.M. does not suffer from any other psychiatric disorders or symptoms.
[54] Dr. Gulati noted that if B.M. were to be incarcerated, he recommended that incarceration take place at the St. Lawrence Valley Treatment Centre or the Ontario Correctional Institute. He also recommended that if B.M. were to receive a disposition that involved treatment, that he be required to receive a follow up assessment of the Sexual Behaviours Clinic at the Royal Ottawa Mental Health Centre.
The Victim Impact Statements
[55] AX poignantly described his relationship with B.M. until the offences took place this way:
[B.M.] was like an uncle. He’d check in to see when my G2 Driver’s test was and say he would get his mom to light a Holy candle for me. He would check to see that I passed and offer me a big congratulations when I did. He loved to cook and was a good cook and would often invite my brothers and I for dinner. He also enjoyed golfing and would book a tee off with my Papa. [B.M.] enjoyed visiting with Papa and the 4 of us would often attend Men’s night at our local golf course. Most of the game and drive home we discussed techniques to improve our game and joked about some of our poor shots.
[56] AX recalled that B.M. accompanied them to the hunt camp where he cooked. He came to birthday parties and family gatherings.
[57] AX discussed how he felt after he discovered the cameras:
Our Family had a hard time believing it was true. I was shocked. Still after all this time, it is hard to believe it really happened. All I could think as I drove home was “This isn’t real”, “This can’t be true”, “How could you do that?” It is so unbelievable that you wouldn’t even think of it. We were as close to him as some family and to do this is just shocking and makes you wonder what others would do. Then I start to wonder, how long has he been doing this for? He has nephews that I know used to spend weekends and vacations with him. Has he been doing this to them too? My brothers worked there too, and my little brother. The brother I should have been able to protect from this.
[58] AX wrote that he is now paranoid about the presence of cameras. He showers with the lights off. He avoids showering at other people’s homes. He has trust issues. He stated, “I may work with people or meet people, and they are nice and kind, but then the question crosses my mind, Could they do this? Can I trust them? That’s all I can think about now when someone is nice to me.”
[59] AX stated that he was angry and frustrated. He feels ashamed. He feels haunted by the thoughts of the videos and pictures and “where they may have ended up.”
[60] AX expressed the view the B.M. ruined his life and he will have to “live with this forever.”
[61] BX tackled the issue of B.M.’s sexuality in his Victim Impact Statement. He wrote:
We have all been raised in the Valley to be kind, caring, helpful people with open minds and to be accepting of everyone, regardless of their sexuality.
Our parents always told us to be aware and to tell them if anyone ever did anything to make us feel uncomfortable in any way. I always figured you were gay but it didn’t really matter, I was only a kid and you were an adult, someone I trusted as a friend.
[62] BX reported being angry and “walking around in a rage all the time.” He stated that he has difficulty sleeping, he can’t trust anyone and is suspicious of everyone he sees. He is anxious when he travels, goes to a concert or changes in the dressing room at the arena. He reported looking for hidden cameras everywhere. BX reported having a hard time making friends and keeping the friends he has. He says that his friends have noticed a change in him and he is afraid to tell them what has happened because it is “very personal and embarrassing.”
[63] The boys’ mother CX[^2] wrote a Victim Impact Statement. She reported that “[t]his whole experience has been detrimental to our family.” She stated that she was receiving counselling, had difficulty focussing on work and day-to-day activities.
[64] She described the breach of trust and the heartbreak she and her husband experienced as parents:
As parents we feel guilty for not knowing that [B.M.] was grooming our boys. He had been to our home for dinner, golfed with our sons and their grandfather, invited them for dinner regularly and often paid them to help his own parents with chores around the farm. Our family had treated him like a family friend. He was a Senior citizen who needed help with work tasks and suffered from a vision disability, very much like their own Grandfather. He used their kindness and empathy to make them targets.
[65] With respect to what she has observed in her son, AX, CX stated:
[AX] has never been the same since that night. He has difficulty trusting and is very suspicious of public spaces and they may have hidden cameras placed in unsuspecting areas. He has engaged in risky behaviour such as drinking, vaping and smoking as ways to deal with the anxiety and depression that comes with being a victim of a child predator. The demands of school were difficult to deal with and his attendance and commitment to classwork declined. There were and still are, many sleepless nights dealing with the anxiety and depression that this incident has caused.
[66] With respect to what she has observed in her son, BX, CX noted that BX suffers from anxiety, depression, fear of strangers, insomnia and low self esteem. She added that he has panic attacks when he sees B.M. and his mother. She stated:
A once positive, kind, friendly young man has turned very cynical, angry and negative. He carries around much internal angst. He did try counselling sessions from the Phoenix Centre but the counsellor was not a great fit and [BX] has since stopped attending. As an evolving teenage boy, he is much more risky in his decisions about right and wrong…
[67] CX noted that they have purchased a service animal to help the boys at great expense.
The Submissions of the Crown
[68] The Crown sought a period of three to five years in the penitentiary.
[69] The Crown submitted that the guilty plea was a significant mitigating factor. He also noted the fact that the accused had lived an exemplary life and did not have a criminal record were highly mitigating.
[70] The Crown highlighted the following aggravating factors:
a) This is a significant breach of trust. The X family treated B.M. like he was part of their family. It was reciprocal.
b) The offences involve a high degree of pre-meditation, planning and was highly organized.
[71] Crown counsel submitted that a denunciatory sentence was called for. He stated that B.M.’s experience as a gay man must have been extremely difficult for him and may explain the commission of the offences, but did not diminish his moral blameworthiness.
[72] Crown counsel highlighted BX’s Victim Impact Statement, quoted above, in which he tacitly acknowledged that they “figured” B.M. was gay and to them, it did not matter.
[73] The Crown also reminded me that in the “usual” pornography case, the victims are often unknown. In this case, “here they are” and the victim impact they described is exactly what appellate courts have instructed us to be wary of.
The Submissions of Defence
[74] Defence counsel sought a sentence of between 18 and 30 months. He stated that he was not submitting that a Conditional Sentence was an appropriate disposition. He stated, “A good person has done a bad thing.”
[75] Defence counsel pointed out the following mitigating factors:
a) B.M. is primarily responsible for his aged parents. Defence counsel asked that the matter be adjourned a period of time to allow time for B.M. and his family to arrange their affairs to accommodate going into custody.
b) B.M. was very successful in his career.
c) B.M. entered an early guilty plea and accepted responsibility. He has significant insight and remorse.
d) B.M. is a low risk to reoffend.
e) B.M. is legally blind and has other health concerns that need to be addressed which will make his custodial sentence more difficult.
f) B.M. did not share the videos or photos with anyone. I note that in reply, the Crown acknowledged that, based on the forensic investigation that was conducted, he was unable to prove the aggravating factor of sharing. Defence counsel was realistic about this, stating that B.M. accepted the Victim Impact where both boys wondered who else had seen the videos and images.
[76] Defence counsel advocated that although serious, the level of harm did not rise to the same level as other cases.
B.M.’s address to the Court
[77] B.M. took the opportunity to address me.
[78] He expressed his gratitude to his counsel and to the Crown, who he described as “very fair”.
[79] I am satisfied that he is extremely remorseful for what he has done. He indicated that his greatest concern was for the well-being of the boys and their family. He stated:
I broke not just a trust, but a friendship and respect that they had. That's something that is unforgiveable.
I took a potentially positive relationship and future with them and took that away not only from them but from myself…. Of course, a lot of shame, and distress on my own family as well because of these circumstances.
I know it rings hollow saying how sorry I am and apologize through you to the family that were affected – are affected. I have taken a life and destroyed it, certainly my own but also I know it has affected them and there is nothing I can do or say that would remove that impact on them…
Analysis
The Criminal Code Sentencing Provisions
[80] Section 718 of the Criminal Code states:
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 in 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 to the community; and
f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community.
[81] Section 718.01 sets out the following sentencing objectives when dealing with offences against children:
When a court imposes a sentence for an offence that involved the abuse of a child under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
[82] Section 718.1 of the Criminal Code establishes the fundamental principle of sentencing: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
[83] Section 718.2 of the Criminal Code sets out “other sentencing principles”:
A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor,
(ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family,
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
(ii.2) evidence that the offender involved a person under the age of 18 years in the commission of the offence,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
(iii.2) evidence that the offence was committed against a person who, in the performance of their duties and functions, was providing health services, including personal care services,
(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization,
(v) evidence that the offence was a terrorism offence,
(vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act, and
(vii) evidence that the commission of the offence had the effect of impeding another person from obtaining health services, including personal care services,
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
Sentencing is an Individualized Process
[84] It is well developed in our law that sentencing is a delicate and highly individualized process. As my colleague Justice March has often said, “No two offenders are alike”. See also R. v. Parranto, 2021 SCC 46 and R. v. Lacasse, 2015 SCC 64.
Discussion of Aggravating and Mitigating Factors
[85] I generally agree with the submissions of both counsel with respect to the various aggravating and mitigating factors that are present in this case.
[86] I make the following observations.
(1) The Mitigating Effect of the Guilty Plea and the Expression of Remorse
[87] Renfrew County is a busy court location. B.M.’s guilty plea has saved this Court from multiple days of court time and it has saved the complainants from having to testify. For that we are grateful.
[88] On the other hand, on the facts that I have heard, it would seem to me that conviction was almost assured. This has the effect of lessening some of the mitigation.
[89] B.M. expresses significant remorse for what he has done and I accept that, notwithstanding his first thoughts when he was committing these offences that he was not doing any harm, he now understands the gravity of his offences.
(2) The Accused Has Led an Exemplary Life and These Offences Are “Out of Character”
[90] I acknowledge that B.M. has led an exemplary life, that these offences are out of his character and, that he is generally, “a good man.”
[91] However, this case also illustrates the danger with these offences.
[92] They can be committed by anyone anywhere.
[93] A man who should have known better, and who did know better exploited innocent children. Children who looked up to him.
[94] He exploited them for his sexual gratification.
[95] Sexual offences against children are committed in private and out of the public eye. They are committed by otherwise pro-social and upstanding citizens. This point was made well by Justice Antonio of the Alberta Court of Queen’s Bench in R. v. Shrivastava, 2019 ABQB 663 where she noted that placing too much weight on “otherwise good character” “can undermine the denunciative and deterrent functions of criminal sentences” (at paragraph 87).
[96] As Chief Justice Tulloch recently noted in R. v. Scott, 2024 ONCA 608 at paragraph 159, “Many people who possess child pornography are likely to be deterred by the prospect of strict sentences because they often are otherwise law-abiding people of good character and employment without prior convictions” (See also paragraph 172 of Scott).
[97] Nonetheless, B.M. is entitled for some mitigation to recognise that he is a first time offender. He is also entitled to some mitigation to recognise that he is being sentenced later in life, and although he is in relatively good health, any carceral sentence will be more difficult for him than it would be for a younger man.
(3) The Victim Impact
[98] Both boys indicated that they feel that B.M. has “ruined” their life.
[99] Their hurt is genuine. They have suffered immeasurably. They have started to engage in risky behaviours, suffered in school performance, and experienced significant anxiety.
[100] CX and her husband are also anxious and they feel guilty for not seeing the threat which B.M. posed and protecting their children from it. CX and her husband have lived every parent’s worst nightmare.
[101] I hope that they all think carefully about whether they permit what has happened here to ruin their lives. BX and AX are simply too young to write their lives off as a result of the horrible things that B.M. has done. I hope that they continue to engage in counselling to assist them to learn to cope with what has happened to them.
[102] In suggesting that they carefully consider the import of their words and engage in counselling, I am in no way belittling the real victim impact that they have suffered.
[103] What this family has gone through will never be simply “fixed” by changing their outlook or engaging in counselling.
[104] They will never be the same.
[105] We must all acknowledge that and accept that as true. However, their challenge must now be to learn to cope with these impacts so that they can live and prosper despite them. They are never going to simply forget and move on from what happened; that is impossible. But they must not let the long tough raging storms obscure the bright stars on their horizons that represent their future.
[106] In R. v. Friesen, 2020 SCC 9, the Supreme Court of Canada had this to say about the effect of sexual offences against boys:
Victimization can be particularly shameful for boys because of social expectations that males are supposed to appear tough (Ontario, The Cornwall Public Inquiry, Report of the Cornwall Inquiry, Phase 1: Facts and Findings, vol. 1 (2009), at p. 28). Embarrassment, humiliation, and homophobia form a particularly toxic and stigmatizing combination for male child victims (see L. (D.O.), at p. 442, per L’Heureux-Dubé J.; R. v. Viszlai, 2015 BCCA 495, 333 C.C.C. (3d) 234, at para. 23).
[107] For over 25 years, our courts have recognized the repugnant effect that possession and production of child pornography has on victims. In R. v. Sharpe, 2001 SCC 2, at paragraph 92, Chief Justice McLachlin discussed the nature of production of child pornography this way:
The link between the production of child pornography and harm to children is very strong. The abuse is broad in extent and devastating in impact. The child is traumatized by being used as a sexual object in the course of making the pornography. The child may be sexually abused and degraded. The trauma and violation of dignity may stay with the child as long as he or she lives. Not infrequently, it initiates a downward spiral into the sex trade. Even when it does not, the child must live in the years that follow with the knowledge that the degrading photo or film may still exist, and may at any moment be being watched and enjoyed by someone.
[108] In this case, the Crown is unable to prove that B.M. made the child pornography that he produced available to others. Nonetheless, the victim impact recognised by the Supreme Court of Canada in Sharpe is very similar to what has taken place here. Regardless of the lack of evidence of sharing or assurances from B.M. that he did not share the pornography with others, the breach of trust in this case is so severe that BX, AX and their family will always fear that someone is out there looking at the images and videos. While there is no evidence that this is the case, their fear is understandable.
[109] In R. v. R.R., 2022 ONCJ 407, the accused surreptitiously took a photo of the victim’s breasts in the course of sexually assaulting her. The Crown was unable to prove that the images were shared with anyone. Justice Jones stated at paragraph 57:
Simply knowing that such an image of one’s body exists, was taken without your consent, and is under the control of another person who has already shown an intent to harm you, is unquestionably an emotionally traumatic experience. The damage is in some respects irreversible.
[110] Fortunately, BX and AX were not sexually assaulted by B.M. or others in the pornography he made.
[111] I am troubled that although B.M. now realises the impact of his behaviour on his victims, he did not initially think that what he was doing would cause any harm.
[112] Perhaps he thought this because he did not share the videos or images with the wider world.
[113] Perhaps he thought this simply because he did not think he would get caught.
[114] He did not consider how significantly impacted the boys and their parents would be by his breach of trust.
[115] They allowed B.M. to become part of their family.
[116] On a number of levels, therefore, the impact of B.M.’s offences on his victims is extremely aggravating and his moral blameworthiness is high. As Chief Justice Tulloch noted in Scott, supra, child pornography offenders “…display a disturbing lack of empathy and compassion by continuing to collect and view this material without considering the plight of the victims that it depicts.”
(4) B.M.’s Experience as a Gay Man
[117] B.M. has never felt secure to freely embrace his sexual orientation without fear of reprisal in his working life which involved high security clearance, without risk of life-threatening and life-altering disease and most importantly out of fear that the revelation that he was gay would devastate his parents.
[118] I have no doubt that his experience and anxiety is the shared experience of many gay men in his age group.
[119] Today, homosexuality is much more widely accepted than it was when B.M. was a younger man. Discrimination on the basis of sexual orientation is prohibited under human rights legislation. Homophobia is completely socially unacceptable. It is an affront to Canadian values.
[120] Despite these advances, it is incredibly difficult and it takes a lot of courage for same-sex people to “come out” about their sexual orientation. They rightly fear the effect it will have on relationships with close family members and friends.
[121] Unfortunately, we still live in an era where same-sex people can be ostracized from their families, their friend groups and others in society just because of their homosexuality.
[122] I also agree with his observation that the experience of a gay man would be even more difficult in small close-knit, traditional, socially conservative rural communities like Cormac and Eganville.
[123] I acknowledge that in keeping his sexual orientation private, B.M. thought he was protecting himself and his family.
[124] But none of that gives B.M. a license to do what he did.
[125] In the best spirit of tolerant, kind Canadians, the X family always suspected that B.M. was gay, but continued to include him in their family. As AX stated in his Victim Impact Statement, “It didn’t matter”.
[126] The quid pro quo of that acceptance was the boys’ and their family’s trust that B.M. would not violate them.
[127] He profoundly breached that trust.
[128] B.M.’s offences may also serve to engender the very discrimination that B.M. was protecting himself and his family from.
[129] B.M.’s offences may ultimately perpetuate unacceptable myths and stereotypes about gay men as pedophiles who cannot be trusted around children.
[130] Thus, I agree with the Crown’s submissions. B.M.’s experience as a gay man partially explains the commission of the offences. It might also explain his initial inability to empathize with the victims. B.M. repressed his sexuality and deprived himself of opportunities to form meaningful loving relationships. One cannot help but have sympathy for B.M. and the sacrifices he made in order to stay “in the closet”.
[131] But that sympathy only goes so far. It does not excuse the highly aggravating victim impact or the potential societal impact of these offences. As Justice Tulloch recently noted in Scott, supra, at paragraph 161:
Courts must reject myths that minimize the degree of responsibility of those who possess child pornography, and the wrongfulness and harmfulness of their conduct: Friesen, at paras. 43, 87. These myths include that the conduct of those possessing child pornography is harmless and victimless, accidental and passive, caused by medical and psychiatric conditions, or an isolated occurrence: see, e.g., Mary Graw Leary, “The Language of Child Sexual Abuse and Exploitation,” in Hessick, ed., Refining Child Pornography Law 109, at pp. 122-124; O’Donnell & Milner, at pp. 194-195; Smolen, at pp. 53‑55, 70-71. These myths cannot conceal an all-too-obvious reality: People who possess child pornography exploit real child victims callously, deliberately, and repeatedly. Failing to recognize this reality risks “undermin[ing] the credibility of the criminal justice system in the eyes of victims, their families, caregivers, and communities, and the public at large”: Friesen, at para. 43.
(5) B.M.’s Risk to Reoffend
[132] B.M. is a low risk to reoffend. That is clear from the section 21 report which does not reveal a diagnosis of pedophilia.
[133] The law is clear that the primary sentencing principles in cases like this are denunciation and deterrence. I’ll discuss this in greater detail below.
[134] However, any carceral sentence that I will impose does not need to be lengthier to allow significant time for B.M. to complete in-custody sexual offending treatment.
[135] Given that he has been assessed to be a low risk to reoffend, he is unlikely to receive intensive sexual behaviour offending treatment while in custody. This is because studies have shown that low risk offenders are actually made worse by requiring them to engage in such treatment.
[136] That is not to say that B.M. does not need treatment at all.
[137] On the contrary, the evidence is clear that B.M. needs some treatment to assist him with accepting who he is.
[138] This is treatment that he can receive out of custody.
(6) The Size and Nature of B.M.’s Collection
[139] I accept that the collection of child pornography here was very small. Two real child victims were involved. This is, however, only one factor and is not determinative of the sentence that should be imposed: Scott, supra, at paragraph 167.
[140] The collection involves videos and still images. Videos are more aggravating because they are more invasive and harmful violation of privacy of the victims: Scott, supra.
[141] Fortunately, as I have pointed out, the images and videos do not involve actual violence against the victims. I recognize however, that this is also not determinative and as I have pointed out, the victim impact in this case is extremely aggravating.
(7) Duration, Frequency, Collaboration with Other Offenders, Planning, Organization, Sophistication and Participation in Child Pornography Subculture
[142] I accept that these offences took place on repeated occasions over the date range set out in the Informations.
[143] I find that B.M.’s commission of these offences was planned and sophisticated. The boys were invited over to his home to do some chores, share a meal and have a shower. Towels and slippers were left out for them. They were reminded to turn on the diffuser, which activated the camera recording equipment.
[144] Fortunately, there is no evidence that B.M. collaborated with other offenders or was a member of the child pornography subculture.
[145] He made the child pornography for his own use.
The Law
[146] Those who engage in sexual misconduct against children can expect severe denunciatory and deterrent sentences: R. v. Friesen, 2020 SCC 9.
[147] Child pornography cases are extremely serious and are met with sentences that emphasize the sentencing principles of denunciation (Criminal Code, s. 718(a)) and general deterrence (Criminal Code, s. 718(b)): R. v. McCaw, 2023 ONCA 8 at paragraph 19.
[148] In R. v. Scott, supra, Chief Justice Tulloch described child pornography as a “global cancer” (at paragraph 145). Possession of it is an extreme invasion of the child’s privacy (paragraph 148), a “grave offence” (paragraph 157) and a “callous crime” (paragraph 163). He noted that Parliament has directed courts to consider more severe punishment by legislating higher maximum sentences and prioritizing denunciation and deterrence in section 718.01 of the Criminal Code (paragraphs 158-159).
[149] At paragraph 160, he stated:
Courts must follow Parliament’s direction by placing children and the wrongs and harms that people who possess child pornography inflict on them at the centre of the sentencing process. Courts can give significant weight to the personal circumstances and mitigating factors of people who possess child pornography and to sentencing objectives such as rehabilitation: Friesen, at paras. 91-92, 104. But it is all too easy for those considerations, which focus on the people being sentenced, to overshadow the wrongs and harms they inflict because their victims are all to often invisible.
[150] “Deterrence is an important consideration when sentencing an offender for the crime of voyeurism. A clear message must be sent to the community that those who would violate the sexual integrity and personal dignity of their victims by surreptitiously taking photographs or videos of their bodies will pay a significant price.” R. v. R.R., supra, at paragraph 58.
[151] As I have said above, no two offenders are the same and no two offences are alike. Most, if not all of the cases, I have found involve more serious conduct than the offences before me.
[152] In R. v. R.B., 2014 ONCA 840, the trial judge sentenced the offender to four years in the penitentiary for four offences over two incidents. In the first incident, the offender surreptitiously recorded his 13-year-old-niece in a bedroom while she was changing. He pleaded guilty to Voyeurism and Making Child Pornography and received a carceral sentence 18 months consisting of six months for the voyeurism and twelve months consecutive for the offence of making child pornography. In the second incident, the offender pleaded guilty to luring and making child pornography after he lured a 16-year-old girl to his apartment and made 600 images of her posing nude. The trial judge imposed consecutive sentences of 18 months for Luring and 12 months for Making Child Pornography for a total sentence of four years. The Court of Appeal did not interfere with the trial judge’s decision, including the decision to impose consecutive sentences.
[153] In R. v. R.K., 2015 ONSC 2391, the offender pleaded guilty to various counts of possession of child pornography, making child pornography and voyeurism. The victims were his step-daughters, the friend of his step-daughter and his partner. The images were taken in the bathroom of their residence. The accused superimposed himself using Photoshop in some of the images to simulate engaging in sexual activity with the victims. Justice Blishen imposed a global sentence of 63 months.
[154] In R. v. R.K. T., 2024 ONSC 1897, the offender was found guilty after a trial of the offences of Voyeurism, Possession of Child Pornography, Making Child Pornography and Distributing Child Pornography. The offender surreptitiously recorded his 15 to 16-year-old step-sister as she disrobed in the bathroom. He then sent the videos to others who uploaded them to the internet. The victim learned about the violation from an anonymous person who had seen the videos on the internet. Justice Campbell described the crimes this way at paragraph 36:
In the circumstances of the present case, in my view the main sentencing principles must be deterrence and denunciation. The criminal offences committed by the accused were exceptionally serious. The accused was a member of the complainant’s family – he was her step-brother. But, rather than try to protect her and look out for her well-being, the accused used a hidden camera to capture video recordings of her naked and partially naked body while she used ostensibly private washroom facilities in homes where she was entitled to feel safe and protected. The accused planned and surreptitiously made these hidden camera recordings of his step-sister (at least once when she was still a child, being under 18 years of age) for his own sexual pleasure as a voyeur, and for the sexual pleasure of at least one other male, to whom he later distributed this “child pornography” he had secretly manufactured. This criminal conduct clearly, and grossly, violated the complainant’s personal autonomy, dignity, privacy and sexual integrity. The accused treated her not like his step-sister, but like a sex object – and he blatantly exploited her over a period of time. Further, the steps subsequently taken by the accused to pass along these “hidden camera” video recordings of the naked complainant, predictably permitted their world-wide distribution on the internet, and effectively revictimized the complainant on countless occasions, and in virtual perpetuity. These were cruel sexual crimes.
[155] Justice Campbell sentenced the accused to a global sentence of five and a half years, comprised of three and a half years for voyeurism, three and a half years concurrent for possession of child pornography, one year consecutive for making child pornography and one year consecutive for distributing child pornography.
[156] There are also cases which are factually much more horrific, for example, where a young child is intrusively sexually assaulted in order to make child pornography which, as one might expect, even before Friesen, are crimes deserving of high single digit or double digit penitentiary sentences: see R. v. L.M., 2008 SCC 31, R. v. D.G.F., 2010 ONCA 27 and R. v. J.S., 2018 ONCA 675.
The Approach to Sentencing that Must Be Followed
[157] Having discussed the aggravating and mitigating factors and having looked at the facts of decided cases, I must now situate B.M.’s crime on the range of sentence.
[158] I find that a global sentence of three years is a proportionate response to the offences committed by B.M. It recognises the harm that he has caused to the victims and the community by his crime. It is a denunciative and deterrent sentence. I apportion the global sentence as follows: two years for the Making Child Pornography Offence and one year consecutive for the Voyeurism Offence.
[159] I have considered whether the mitigating factors are sufficient for me to find that B.M. is deserving of a lesser sentence, or even a conditional sentence in the community.
[160] I note that defence counsel made it clear that he was not asking for a conditional sentence. Although I am grateful for this admission, I must still consider whether it is appropriate.
[161] I have already found that incarceration of B.M. is not necessary to protect the safety of the community. B.M. is at a low risk to reoffend and he is unlikely to receive treatment while incarcerated. The question that I must now decide is whether there are other compelling factors that would reduce the sentence that I impose.
[162] I am satisfied that there are not.
[163] In R. v. M.M., 2022 ONCA 441, a case dealing with the possession of child pornography in a situation that involves a breach of trust, the Court stated at paragraph 16:
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.
[164] I have set out B.M.’s personal circumstances at length. He is in relatively good health for his age.
[165] In R. v. Faroughi, 2024 ONCA 178 at paragraph 99, Justice Zarnett discussed the ratio in M.M. as follows:
This court has consistently reiterated post-Friesen that conditional sentences will rarely be appropriate for sexual offences against children: see M.M., at para. 16; B.M., at para. 2. Even so, in some exceptional circumstances, incarceration will not be appropriate. For example, without creating any bright-line rules, this court in M.M. suggested that some offenders experiencing medical hardship that cannot be adequately addressed within a correctional facility may fall within these circumstances: at para. 16. As I will explain, I am satisfied that, given the appellant’s immaturity and sexual inexperience at the time of the offence, the fact that this was his first offence, his recent medical hardships, and his impressive efforts in taking accountability for his actions and serving his community post-sentence, a conditional sentence is available in these circumstances.
[166] In R. v. Pike, 2024 ONCA 608, Chief Justice Tulloch stated at paragraphs 179 to 182:
….courts must decide 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: McCaw, at paras. 27-29; R. v. M.M., 2022 ONCA 441 at paras. 15-16. As this court held in M.M., 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: at paras. 15-16.
I must reconcile the “exceptional circumstances” term that M.M. used to express this point with the Supreme Court’s decisions in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, and Parranto. At first glance, M.M.’s use of this term might seem contrary to these cases, which respectively hold that appellate courts can neither create presumptions that conditional sentences are inappropriate for specific offences (Proulx, at paras. 80-83), nor require exceptional circumstances to depart from a range (Parranto, at para. 40).
But in my respectful view, M.M. did not and could not have intended to depart from Proulx by creating an offence-specific presumption against conditional sentences. Rather, it used the “exceptional circumstances” term to convey that, since Proulx, Parliament has increased maximum sentences and prioritized denunciation and deterrence for sexual offences against children and, further, that the courts’ understanding of the harmfulness and wrongfulness of these offences has deepened: Friesen, at paras. 109-110; see M.M., at paras. 13-15. Thus, while there is no presumption against conditional sentences, these post-Proulx changes require more compelling personal circumstances, mitigating factors, and/or the absence of aggravating factors, to justify a conditional sentence than might have been the case when Proulx was decided more than two decades ago.
Nor, in my view, did M.M. intend to depart from Parranto by requiring exceptional circumstances to impose a conditional sentence. Rather, M.M. used “exceptional circumstances” as shorthand for personal circumstances and mitigating factors that are sufficiently compelling to make a conditional sentence proportionate, as in R. v. Padda, 2019 BCCA 351, at para. 36. Not only is there no closed list of such circumstances and factors (M.M., at para. 16), 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: R. v. Faroughi, 2024 ONCA 178, 435 C.C.C. (3d) 1, at para. 99. This is consistent with Parranto’s holding that sentencing must focus on proportionality, not pigeonholing cases into ill-defined exceptional circumstance categories: at para. 40; see R. v. Ellis, 2022 BCCA 278, 417 C.C.C. (3d) 102, at para. 118. [Emphasis mine]
[167] See also, most recently, R. v. AL, 2025 ONCA 9.
[168] In this case, I am not satisfied that there are sufficiently compelling circumstances to reduce B.M.’s sentence to a period of less than a global sentence of three years or a conditional sentence.
[169] I therefore impose the following sentence:
a) Three years in the penitentiary.
b) An Order pursuant to section 743.6 of the Criminal Code prohibiting B.M. from having any contact or communication, directly or indirectly, by any physical electronic or other means, with BX, AX, CX or any member of their family, while B.M. is in custody.
c) A Lifetime Order pursuant to section 161(a.1) prohibiting B.M. from being within 150 meters of any place he knows BX, AX, CX or any member of their family to live, work, go to school, frequent or any place he knows them to be except for the purpose of visiting his parent’s residence and travelling to and from his parent’s residence without stopping.
d) A Lifetime Order pursuant to section 161(b) prohibiting B.M. from seeking, obtaining or continuing in any employment, whether or not that employment is remunerated, or becoming a volunteer in a capacity, that involves being in a position of trust or authority towards a person under the age of 16 years.
e) A Lifetime Order pursuant to section 161(c) prohibiting B.M. from having contact or communication with any person under the age of 16 unless B.M. does so under the supervision of that person’s parent or guardian and that person’s parent or guardian is aware of B.M.’s offending behaviour except for contact during the course of short commercial transactions or chance encounters in a public place.
f) An Order, pursuant to section 487.051 for the taking of B.M.’s DNA. The offence of Making Child Pornography is a primarily designated offence. The offence of Voyeurism is a secondarily designated offence. On the facts of this case, I make the Order for both offences.
g) An Order, pursuant to sections 490.012(1), 490.013(3) and (4) requiring B.M. to comply with the Sex Offender Information Registration Act for a period of 20 years.
i) In making this Order, I am satisfied that B.M. has been convicted of offences involving two or more designated offences. I am not, however, satisfied that those offences demonstrate, or form part of a pattern of behaviour which shows that B.M. presents an increased risk of reoffending or committing a further crime of a sexual nature.
ii) I make this finding based on the evidence before me that B.M. is a low risk to reoffend, he accepts responsibility for his offence, is remorseful for it and is unlikely to receive any treatment for sexual offending while in custody.
iii) I order that the duration of the requirements to comply be set at 20 years on the basis that I find that the maximum sentence for the offence of Making Child Pornography is fourteen years and the maximum sentence for the offence of Voyeurism is five years. The combination of sections 490.013(2)(b) and 490.013(4), therefore, mandate a twenty year reporting period.
h) Pursuant to section 109 of the Criminal Code, I make an Order prohibiting B.M. from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, firearm part, ammunition, prohibited ammunition or explosive substance for a period of ten years.
[170] I thank counsel for their helpful submissions.
Released: March 17, 2025
Signed: Justice J.R. Richardson
[^1]: These are not the complainants’ actual initials. I have used different initials to preserve their anonymity.
[^2]: These are not the actual initials of the mother’s name. I have used these initials to preserve the anonymity of the complainants.