ONTARIO COURT OF JUSTICE

DATE: 2025-01-21
COURT FILE No.: Central West Region - Brampton – 23-31107643

BETWEEN:
His Majesty the King
— AND —
Joseph Kalina

Before Justice Andrew F. Falls
Heard on September 11 and December 18, 2024
Reasons delivered on January 21, 2025

K. Holmes — counsel for the Crown
E. White — counsel for the defendant, Joseph Kalina

Falls, J.:

Reasons For Sentence

[1] On September 11, 2024, Joseph Kalina pleaded guilty to one count of possession of child pornography. The sentencing hearing was adjourned pending the preparation of a pre-sentence report.

[2] The following are my reasons for sentencing Mr. Kalina to a penitentiary carceral sentence.

The Circumstances of the Offence

[3] An Agreed Statement of Facts (“ASF”) was filed as a basis for the conviction. A summary of those facts, together with any relevant findings of fact are as follows.

[4] On May 11, 2023, the Peel Regional Police, Internet Child Exploitation Unit commenced an investigation into a report from the National Centre for Missing and Exploited Children. The report outlined that three images, believed to be child pornography, were uploaded to a peer to peer sharing site called BingImage. As part of their investigation, the police obtained a warrant to search the residential address linked to the IP address used to upload the images. This was Mr. Kalina’s residence.

[5] As a result of the search, the police located four USB storage drives containing 7,308 images and 513 videos. The media was analyzed, and it is admitted that the images and videos are child pornography.

[6] The run-time of the videos is five hours and 45 minutes. The images and videos all contain the same type of content. 99 percent of the images depict young girls under the age of ten being sexually exploited or assaulted. The young girls are either posing with little to no clothing on or they are being sexually assaulted by adult men. Some of the girls are dressed up in makeup or lingerie.

[7] The nature of the depicted sexual assaults include vaginal, anal, and oral sex. Some of the girls were tied up or bound to objects. An example was highlighted depicting a girl of less than 8 years old who was tied face down to a table by her arms and legs. She was being sexually assaulted by an adult male.

[8] The ASF does not specify the number of victims included in the videos and images. I was asked by the Crown to infer from the ASF that there were multiple girls included in the collection. I am prepared to draw that inference and make a finding that there were multiple girls included in the collection of videos and images. I make this finding based on the pluralized language in the ASF. It is also a reasonable inference based on the number of videos and images [1].

[9] It is admitted that Mr. Kalina was the IP subscriber. The USB storage devices were found in various locations in the residence, including one in the master bedroom and two plugged into a computer tablet connected to a living room television.

[10] Mr. Kalina resided alone. He had a second bedroom with children’s toys. Mr. Kalina babysat his six-year-old great granddaughter. It is not alleged, nor admitted that anything untoward occurred with respect to Mr. Kalina’s great granddaughter. Nor is she believed to be included in the collection of material located at Mr. Kalina’s residence.

Victim Impact

[11] Neither a victim impact statement nor a community victim impact statement were filed. I was advised the girls depicted in the collection are unidentified.

The Circumstances of the Offender

a) Mr. Kalina’s Background

[12] I was aided in understanding Joseph Kalina’s background by his counsel’s submissions and a pre-sentence report (“PSR”).

[13] Mr. Kalina is now 81 years old. Given his date of birth, he was 79 years old at the time of this offence.

[14] Mr. Kalina is college educated and had taken engineering courses later in life. Mr. Kalina has maintained steady employment his entire adult life. He began working part-time when he was 11 years old. Collateral sources described work as a central feature in Mr. Kalina’s life providing him with purpose and fulfillment.

[15] At the time of his guilty plea, he was employed full-time at a major home improvement retailer. He has been employed with this retailer since 1999. As of the date of sentencing submissions, Mr. Kalina was in a position to cease his employment, however, he continues to work to support a child and grandchild.

[16] Mr. Kalina was married in the 1970’s and has two sons from that union. He is currently divorced. Notwithstanding the dissolution of their marriage, Mr. Kalina provided care for his ex-wife for 25 years when she became unwell. She is now deceased. After his marriage, Mr. Kalina was involved in a relationship for 35 years with another partner. He is now single.

[17] Mr. Kalina maintains a relationship with both his sons, though the relationship with his youngest son is strained. Mr. Kalina has shared the existence of his criminal offence with his children and grandchildren.

[18] Mr. Kalina experienced physical abuse at the hands of his stepfather during his early childhood years. Though he lived with his mother until his later adolescent years, Mr. Kalina did not have a strong relationship with her. He did not have much contact with his biological father. Mr. Kalina has three sisters, only one of which he has maintained a relationship.

[19] Collateral sources described Mr. Kalina as a devoted father and believe that he has a positive relationship with his sons, grandchildren, and great grandchildren. Mr. Kalina spoils his grandchildren and great grandchildren and visits them three or more times a week.

[20] Mr. Kalina has a dated criminal record from the 1960’s. He would have been in his late teens and twenty years old. I have made note of the record, however, I do not consider the existence of this record to be a significant factor in my determination of a fit sentence.

b) Mr. Kalina’s Explanation for the Offence

[21] In his PSR, Mr. Kalina advised that he began viewing pornographic material involving children approximately four years ago. He would have been 76 years old. While viewing age-appropriate material he clicked on a popup and began to view child pornography out of boredom. He stated it was not sexual. However, he did admit to sexually gratifying himself while viewing the material – “sometimes.” Mr. Kalina saved the media to a USB storage device and returned to the device to view the material. He admitted to searching for child pornography on the internet within the last year.

[22] Mr. Kalina stated that he takes full responsibility for possessing the child pornography. He is “humiliated and embarrassed” by his behaviour. As he noted, those responsible for the abuse and its viewer should suffer the consequences of the law.

[23] Mr. Kalina qualified his acceptance of responsibility by explaining that he did not believe the videos/images were depicting real children. It was only upon his arrest that he learned otherwise. While he was viewing the material, he believed the victims to have been 15 to 16 years old.

[24] There was undoubtedly a personal benefit to not having viewed the material in this case. On the other hand, because I did not view the material, I am unable to fully assess Mr. Kalina's assertion. The ASF suggests the videos/images depict real children. I have proceeded in my sentencing as if they were real unidentified children as Crown Counsel argued. This was not disputed by the defence. However, I am left with less than sufficient evidence to conclude that Mr. Kalina's claim is demonstrably false.

[25] That noted, Mr. Kalina's explanation is cause for concern. In my view, his claim that he did not realize the girls in the videos/images were real children demonstrates an underappreciation for the harmfulness of possessing sexually explicit media involving children. Especially if that material includes the type of harm visited upon them as described in this case. As noted by the Ontario Court of Appeal in Pike & Scott , possessing this material creates and fuels a demand for it [2]. Further, possession incites “perpetrators to commit and facilitate the commission of other sexual offences against children.” [3]

[26] In my view, it is degrees of bad, the difference between knowledge of real children being abused and the belief that the videos/images were creations designed to mimic a real event. In either case, some of the media was a depiction of young girls being sexually abused. As noted in the ASF, 99% of the girls were under the age of ten.

[27] Through his lawyer, Mr. Kalina expressed remorse for his actions. I accept that there is some truth so this. As I noted Mr. Kalina spoke of his embarrassment in the PSR. He offered to donate $10,000 to a local youth organization if I did not incarcerate him. His counsel argued that this part of the PSR, when read as a whole, demonstrates an acceptance of his behaviour and the harm it caused.

[28] Respectfully, I do not agree. Mr. Kalina stated his possession and viewing of the material “wasn’t sexual”. He continued viewing 7,308 images and 513 videos of child pornographic media out of boredom. Mr. Kalina continues to not appreciate that every time he viewed a child pornographic image or video, he revictimized the child. His possession contributed to the harm visited on the child. As noted in Pike [4], Mr. Kalina shares that responsibility with the producer of the video/image. Mr. Kalina fails to appreciate that possession of this material is a deliberate [5] and continuous choice [6]. “People who possess child pornography exploit real child victims callously, deliberately, and repeatedly.” [7] For offenders who continue to engage in distorted and minimized thinking, less weight is attached to their expression of remorse [8].

[29] The mitigating effects of Mr. Kalina’s remorse are attenuated by his continued lack of appreciation for the seriousness of his offence.

c) Mr. Kalina’s Age & Health

[30] At the time of sentencing Mr. Kalina is 81 years old. His 81st birthday was on December 20, 2024.

[31] Defence counsel argued that Mr. Kalina’s age is a significant mitigating factor. Counsel pointed to data from the World Health Organization that says the average life expectancy of a Canadian male is 79.4 years of age.

[32] In addition, Mr. Kalina has some health concerns. As noted in the PSR, Mr. Kalina is experiencing sciatica in his lower back and into his left leg which causes him mobility issues. He is waiting an appointment with a neurosurgeon. In 2018, he underwent a triple bypass surgery. He takes daily medication and visits a cardiologist annually. Finally, Mr. Kalina has type-2 diabetes for which he takes five different oral medications daily. Mr. Kalina currently uses a cane to assist in his mobility.

[33] Defence counsel conceded that custodial facilities could accommodate Mr. Kalina’s health concerns.

[34] Mr. Kalina’s age and health are the major factors driving the defence submission for a conditional sentence.

d) Other Considerations

[35] To my knowledge, Mr. Kalina has not undergone any counselling.

[36] There was no risk assessment or expert report filed to aid me in evaluating any risk posed by Mr. Kalina.

[37] Though it was submitted by counsel that Mr. Kalina does not present a danger to society. This submission was based on the fact that Mr. Kalina has only been convicted of the actions that are the foundation for this offence [9].

[38] Collateral sources in the PSR regard Mr. Kalina as kind, generous, strong-willed, and the perfect gentleman. They expressed surprise regarding the offence and expressed that it was inconsistent with their understanding of who Mr. Kalina is as a person. Collateral sources believe jail would be a “death sentence” for Mr. Kalina. The basis for this belief was not shared for two of the collateral sources. Mr. Kalina’s son expressed the same belief because his father would lose his job, home, and health.

Sentencing Legal Principles

[39] The Criminal Code instructs that the goal of any criminal sentence is to protect society, contribute to respect for the law and help maintain a just, peaceful, and safe society (see s. 718).

[40] Sentencing judges attempt to achieve this goal by imposing just sanctions that address one or more of the traditional sentencing principles that are also contained in the Criminal Code. These include denunciation, general and specific deterrence, rehabilitation, making reparation to victims of crime, and promoting a sense of responsibility in offenders and an acknowledgment of the harm they have caused the community, and specific victims in our community (see s. 718(a)–(f)).

[41] Ultimately, the fundamental principle of sentencing is to impose a sanction that is proportionate to the gravity of the offence committed, and the degree of responsibility of the person who committed it (see s. 718.1). This means that, for the sentence I impose to be appropriate, it must be tailored to Mr. Kalina’s circumstances, and the circumstances of the offence he committed.

[42] Section 718.1 of the Code ensures that proportionality is the fundamental principle of sentencing. However, proportionality is not the sole principle to be considered. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances [10].

[43] As a sentencing tool, imprisonment is to be used only as a last resort when required by the circumstances of the crime and the background of the perpetrator [11]. The principle of restraint requires that the shortest period of incarceration that will meet the penological aims in a given case is the appropriate length for a prison sentence [12].

[44] As noted by the SCC in R. v. Nasogaluak [13] at paragraph 44:

"[I]t must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred."

[45] In R. v. Lacasse [14] at paragraphs 57 and 58, the SCC stated that:

"Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case …
There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision."

[46] As noted in R. v. Proulx at paragraphs 21 and 22:

"The conditional sentence was specifically enacted as a new sanction designed to achieve both of Parliament's objectives. The conditional sentence is a meaningful alternative to incarceration for less serious and non-dangerous offenders. The offenders who meet the criteria of s. 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. These offenders' liberty will be constrained by conditions to be attached to the sentence, as set out in s. 742.3 of the Code. In case of breach of conditions, the offender will be brought back before a judge, pursuant to s. 742.6. If an offender cannot provide a reasonable excuse for breaching the conditions of his or her sentence, the judge may order him or her to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence.
The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a [page83] punitive sanction capable of achieving the objectives of denunciation and deterrence…"

[47] A conditional sentence can only be imposed if the accused receives a sentence of less than 2 years and only when the sentence "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."

Sentencing for Child Pornography Possession

[48] In Pike & Scott, the Ontario Court of Appeal outlined a sentencing framework for child pornography offences. The Court of Appeal reemphasized that I should apply the child-centered approach from R. v. Friesen when engaging in a sentencing analysis for this offence [16].

[49] The Court of Appeal recognized and expanded on six distinct wrongs and harms associated with the possession of child pornography. Perpetrators of this offence “violate children's dignity, invade their privacy, inflict severe emotional harm, instigate producers to abuse children to meet the demand for child pornography, risk inciting and facilitating other offences against children, and perpetuate pernicious messages that undermine children's humanity and equality” [17].

[50] As noted by the Court of Appeal [18]:

"Possession is a grave offence because it causes these wrongs and harms. '[C]ourts do not see [possession as] a minor, or victimless crime' (Kwok (2007), at para. 52) or one that merely seeks to prevent future risks to children that have not yet materialized: Smolen, at p. 60. Rather, 'possession of child pornography is itself child sexual abuse': Inksetter, at para. 22 (quotation omitted). People who possess child pornography participate in the producer's initial sexual abuse of children through the market that their demand creates, and drive demand for even more abuse. They also independently abuse those children by violating their dignity and privacy, which causes them severe emotional harm." [emphasis added]

[51] Sentencing in these cases must emphasize the principles of denunciation and deterrence [19].

[52] The Ontario Court of Appeal explained these terms in R. v. T.J. [20], as follows:

"A sentence expresses denunciation by condemning 'the offender for encroaching on our society's basic code of values'; it expresses deterrence by 'discouraging the offender and others from engaging in criminal conduct'. Considerations of general deterrence lead to an offender being punished more severely than he or she might otherwise deserve in order to send a message to others: Lis, at para. 55."

[53] As noted in Pike, “prioritizing denunciation communicates that perpetrators’ sexual exploitation of children is intolerable and combats their attempts to minimize their conduct as harmless or victimless.” [21]

[54] As stated by the Court of Appeal in R. v. M.M., 2022 ONCA 441, 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."

[55] Section 718.01 of the Criminal Code states that when dealing with offences against children a court shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

[56] In Pike, the court increased the upper end of the sentence range to five years in recognition of the seriousness of this offence [22]. The court declined to set a lower end for the possession range.

[57] When sentencing for this offence, a judge should place the case along this range comparing the case to other post Friesen cases and taking into consideration a non-exhaustive list of relevant aggravating and mitigating factors [23].

Positions of Parties

[58] Pointing to the circumstances and seriousness of the offence, the Crown submits that a custodial sentence is appropriate. The Crown asked me to impose:

1. A custodial sentence of 3 years.
2. A SOIRA order for 20 years.
3. A DNA order, and
4. A s.161 order for 20 years.

[59] Counsel for Mr. Kalina submits that it would be more appropriate for me to impose a conditional sentence of 2 years less a day followed by three years probation. This sentence would allow the maximum amount of community supervision over Mr. Kalina. The defence does not oppose the ancillary orders sought by the Crown.

[60] The goal of Defence Counsel’s submissions was to achieve a sentence that allows Mr. Kalina to continue his employment, provide support for his family, and maintain his health. Defence Counsel points to Mr. Kalina’s guilty plea and no danger to the community as reasons for me to consider this sentence. Counsel also highlights that Mr. Kalina deserves significant mitigation for his age and health concerns.

Aggravating & Mitigating Factors

[61] In determining an appropriate sentence, it is helpful to consider any relevant aggravating or mitigating circumstances that are presently at play (see s. 718.2(a)). This would include features of Mr. Kalina’s background, features of the crime he has committed, the timing of his guilty plea, and any other evidence I have received during this sentence hearing. It would also include any legal direction, whether found in the Criminal Code, for example section 718.2(a), or provided by higher courts, with regard to particular aspects of this case that I must consider.

[62] Listing the applicable aggravating and mitigating features assists me in evaluating this case properly and imposing a sentence that is just and appropriate. I note the following aggravating and mitigating features of this case.

[63] I find the following to be aggravating facts:

1. The circumstances of the offence
   (i) This offence involved the abuse and exploitation of children.
   (ii) The age of the children in the child pornography is young, with all being under the age of 10 years old.
   (iii) The degree of depravity of the images and videos possessed by Mr. Kalina.
   (iv) The collection size is large, including 7,308 images and 513 videos.
   (v) This offence was not a spontaneous or "one off" event but occurred on a number of occasions over a period of time and the collection and manner of storage of the images suggest signs of curating.

2. Mr. Kalina continues to show a lack of appreciation for the seriousness of his offence.

3. Mr. Kalina has a criminal record. I do not consider this to be a significant aggravating factor.

[64] In a sense, the list of aggravating circumstances I have outlined does little more than describe the evils being addressed by these provisions of the Criminal Code. However, within the bounds of the criminal conduct described in s. 163.1 of the Criminal Code there are gradations of seriousness. I view Mr. Kalina's conduct in committing the offence as falling near the more serious end of that spectrum.

[65] I have no psychiatric or assessment evidence that would help me assess Mr. Kalina’s risk to children. I do note the comments of the collateral sources in the PSR. In particular, Mr. Kalina’s son stated that there has never been an issue with Mr. Kalina’s children, grandchildren, and great grandchildren.

[66] I find the following to be mitigating factors:

1. Mr. Kalina pleaded guilty.
2. His guilty plea is a public acceptance of responsibility. He has not denied responsibility for this offence.
3. Mr. Kalina has expressed remorse and embarrassment for committing the offence. I am told that Mr. Kalina understands his actions. As I already noted, the mitigating effect of his remorse is diminished by his continued minimization of the offence.
4. Mr. Kalina is 81 years old. I must consider whether a fixed-term sentence of imprisonment would exceed any reasonable estimation of Mr. Kalina’s remaining natural life span [24].
5. Mr. Kalina is educated and has been gainfully employed for his entire adult life.
6. Mr. Kalina has strong support from some of his family and his close friends.
7. Finally, this guilty plea is meaningful given the COVID-19 backlog our jurisdiction is still experiencing. This guilty plea made room for other matters to proceed to trial.

What is a Fit & Appropriate Sentence

[67] I now want to turn to my analysis and determination of a fit sentence.

[68] This was a challenging sentencing exercise. Strong competing interests exist. I must turn my mind to deterrence and impose a sentence that sends a message to the community and Mr. Kalina that this behaviour will not be tolerated.

[69] As instructed in Pike I have considered the aggravating and mitigating factors in this case.

[70] I cannot ignore the seriousness of Mr. Kalina’s criminal offence. His possession of a significant quantity of child pornography contributed to the ongoing victimization of the most vulnerable members of our community. Mr. Kalina does not appear to have a true appreciation of the significance and impact of his crime. Perhaps my decision in some way will assist in that regard.

[71] On the other hand, Mr. Kalina is 81 years old and essentially does not have a criminal record. He is hardworking, gainfully employed and otherwise a good contributing member of our community. Candidly, I do not want to sentence an 81-year-old person to a significant jail sentence.

[72] I have considered the Defence submission for a conditional sentence. As noted at paragraph 179 in Pike, before considering whether a CSO is appropriate, I must determine the appropriate quantum of the sentence.

[73] In support of their argument, the Crown relied solely on the Court of Appeal’s decision of Pike. In Pike, the court reasoned that a penitentiary sentence was appropriate for cases similar to this case. As I previously noted, the court raised the upper limit of the sentencing range to five years. With respect to the appropriateness of conditional sentences, the court noted that the severe wrongs and harms that possessors of child pornography cause, their moral blameworthiness and Parliament’s prioritization of deterrence and denunciation will usually result in a custodial sentence [25].

[74] The defence provided helpful written submissions arguing that an appropriate range of sentence is a reformatory sentence. In particular, Mr. Kalina’s mitigating circumstances, especially his age, bring the appropriate sentence below a penitentiary sentence.

[75] Counsel relied on two primary cases to support this position. The first is a post Friesen case. The second is a post Friesen and post Pike case. In both cases, the court found the appropriate sentence to be a reformatory sentence – thereafter imposing a conditional sentence.

[76] The first is a case from Justice Latimer [26], as he was, sitting in the Ontario Court of Justice. In that case, His Honour took particular note of the offender’s Indigenous status and a significant history riddled with physical and sexual abuse. The Crown in that case sought a sentence of two years less a day.

[77] The second case is also from the Ontario Court of Justice. In O.A. [27], Justice Mainville found that an appropriate sentence ranged between one to two years. Her Honour considered a history of sexual abuse that continued to affect the offender. The offender was assessed and found to have a very low risk of re-offending. He had undertaken rehabilitative and counselling efforts. A significant factor for Her Honour was the collateral immigration consequences and the resulting risk to the offender’s life if he was deported.

[78] Neither case is binding on me.

[79] I am of the view that both cases are distinguishable from the present case. In both cases, there were exceptional personal circumstances that helped the court conclude that a reformatory sentence was appropriate. O.A. is arguably the most similar of the two cases. I note that the collection size in O.A. was much smaller than Mr. Kalina’s collection.

[80] These personal circumstances are not present for Mr. Kalina. It is valid to point to Mr. Kalina’s age as a mitigating factor. As I noted, the notion of sentencing an 81-year-old person to a custodial sentence could be argued as objectionable and gives me no pleasure.

[81] However, Mr. Kalina is not a frail 81-year-old. He still maintains full-time employment. As his son noted, he is a frontline worker and one of the company’s best employees. He does have health issues, however, none that could not be accommodated in an institution.

[82] I note Mr. Kalina commenced his commission of these offences when he was 76 years old.

[83] Our courts are also not without precedent in sentencing elderly accused. In Premji, the Ontario Court of Appeal reduced a 13-year sentence to nine years in recognition of the elderly age of a 77-year-old offender. If that offender served his complete sentence, he would be 86 – two and a half years shy of the sentence I find is appropriate for Mr. Kalina. In the Pike/Scott decision, Mr. Scott was 77 years old in 2020 at the time of the offence. In 2024, the Court of Appeal found a three-year penitentiary sentence to be appropriate.

[84] I remind myself that section 718.2 of the Criminal Code of Canada directs me to consider the least onerous sentence consistent with the purposes and principles of sentencing. The principles of proportionality and restraint require that any sentence imposed should not be unduly long or harsh. While sufficient punishment is required, no more than what is necessary is to be ordered.

[85] Balancing all these factors, I am of the view that an appropriate sentence is two and one-half years or 30 months in a penitentiary jail.

[86] This sentence considers and balances the circumstances of Mr. Kalina’s offence and his personal circumstances. It most appropriately reflects the gravity of the offence, and Mr. Kalina’s degree of responsibility. I have considered in particular:

a) The range applied in similar recent cases. In particular, the recent guidance provided by the Ontario Court of Appeal in Pike. Justice Mainville’s summary of recent sentencing cases at paragraphs 182-191 was of assistance [28].
b) The size of Mr. Kalina’s collection.
c) The aggravating nature of the collection.
d) Mr. Kalina’s limited appreciation and diminished remorse for his offence.
e) The mitigating factors of Mr. Kalina's age, the likely loss of employment and residence to be incurred by reason of my sentence.

[87] Given my finding regarding the appropriate sentence, a conditional sentence is not available.

[88] I note that if Mr. Kalina was a younger man, I would have sentenced him to a three-year carceral sentence. I have reduced that amount in consideration of his age and health. I have also taken note of eight days pre-sentence custody.

[89] Accordingly, I sentence Mr. Kalina to a custodial sentence for 2.5 years or 30 months in jail.

Ancillary Orders

[90] On consent of the parties, the ancillary orders will be imposed as requested by the Crown. There will be a DNA order, this being a primary designated offence. I will further impose an order pursuant to s. 161 and a sex offender registry or SOIRA order under s. 490.012 of the Criminal Code. Both orders will issue for 20 years.

Released: January 21, 2025
Signed: Justice Andrew F. Falls

NOTE: As noted in court, on the record, this written decision is to be considered the official version of the Reasons for Sentence and takes precedence over the oral Reasons read into the record in the event of any discrepancies between the oral and written versions.

Footnotes

[1] R v Pike & Scott, 2024 ONCA 608 at para 167.
[2] Ibid. at paras 151 and 162.
[3] Ibid. at para 152.
[4] Ibid. at para 151.
[5] Ibid. at para 164.
[6] Ibid. at para 165.
[7] Ibid. at para 161.
[8] Ibid. at para 173.
[9] Not considering Mr. Kalina’s dated criminal record.
[10] Subsection 718.2(b) of the Code.
[11] Subsections 718.2(d) and (e) of the Code.
[12] R. v. Hamilton, 2004 ONCA 5549, [2004] O.J. No. 3252 (C.A.) at para 96.
[13] R. v. Nasogaluak, 2010 SCC 6 at para 44.
[14] R. v. Lacasse, 2015 SCC 64, at paras 57-58.
[15] R. v. Friesen, 2020 SCC 9.
[16] Pike, supra at paras 143 and 160.
[17] Ibid. at para 146.
[18] Ibid. at para 158.
[19] Ibid. at para 159.
[20] R. v. J (T), 2021 ONCA 392 at para 26.
[21] Pike, supra at para 159.
[22] Ibid. at para 176.
[23] Ibid. at para 178.
[24] R. v. Premji, 2021 ONCA 721 at paras 1 and 2.
[25] Pike, supra at para 179.
[26] R. v. SB, 2022 ONCJ 536.
[27] R. v. OA, 2024 ONCJ 541.
[28] Ibid. at paras 182-191.