COURT FILE NO.: 15-99

DATE: 2019/01/07

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen

v.

Mathieu Pahle

BEFORE: Justice A. Doyle

COUNSEL: Monica Heine, Counsel for the Crown

James Harbic, Counsel for the Accused

HEARD: October 9, 2018

SENTENCING DECISION

Overview

[1] Mr. Pahle was convicted on one count of possession of child pornography contrary to s. 163.1(4) of the Criminal Code, R.S.C., 1985, c. C-46 (the “Code”) and the matter was adjourned to permit the completion of the pre-sentence report and sexual behaviours psychiatric assessment.

[2] The Defence had served notice contesting the minimum sentence imposed by the Code, but in the intervening period, the Court of Appeal rendered its decision in R. v. John, 2018 ONCA 702. John struck down the minimum sentence of six months found in s. 163.1(4)(a) of the Code, which existed from August 9, 2012 to July 16, 2015, which is the time period during which the commission of this offence occurred. Therefore, the section is of no force and effect.

[3] The Crown is requesting 18 to 24 months’ incarceration plus the maximum probationary term as it submitted that in accordance with s. 718 of the Code, the Court must consider the sentencing principles of denunciation and deterrence when imposing sentence in child pornography cases.

[4] The Defence is requesting a conditional sentence as, due to Mr. Pahle’s personal circumstances, a fit sentence for this first offender should consider other sentencing objectives such as rehabilitation and his unlikelihood to reoffend. He should be given the opportunity to serve his term in the community.

Circumstances of the Offence

[5] The Police obtained a warrant to seize Mr. Pahle’s computers after receiving a tip from the National Center for Missing and Exploited Children (“NCMEC”), following a complaint they received from Google Inc.

[6] On September 19, 2014, a warrant to search was issued by Justice of the Peace Guindon based on an Information to Obtain (“ITO”) dated September 17, 2014, prepared by Detective Constable Mark Anderson (the “Officer”).

[7] An execution of the warrant took place on September 19, 2014, which resulted in officers obtaining child pornography located on a laptop and two small memory cards from Mr. Pahle’s residence located at 334 Ellen Avenue in the City of Cornwall. Upon arrival at his residence to execute the warrant, police asked Mr. Pahle if they would find child pornography on his computer, to which he responded “probably” He cooperated with the police. The devices divulged 9,888 images along with 105 movies depicting child pornography.

[9] Mr. Pahle contested the warrant alleging a breach of s. 8 of the Charter of Rights and Freedoms (the “Charter”) and also brought a Garofoli application. The Court permitted him to cross-examine the affiant of the ITO. After hearing the Garofoli/Charter application, the Court admitted the evidence of the pornography.

[11] Mr. Pahle did not contest the rest of the Crown’s evidence, admitted his statement to the police was voluntary and that the images constituted child pornography.

[12] The Court made a finding of guilt and the matter was adjourned for the preparation of a presentence report and sexual behaviours’ assessment.

Evidence at the Sentencing hearing

Images and Videos

[13] The amount of 9,888 images was seized which is not an insignificant amount even though the investigating officer testified that he had seen much larger collections.

[14] Upon the request of the Crown, the Court reviewed a cross section of the child pornography that formed part of Mr. Pahle’s collection.

[15] The collection contains the following:

− Video of an infant on a change table being sexually assaulted by penetration by a penis;

− Young girls at an approximate age of 10 sexually posing and/or masturbating;

− Images ranging from a small baby to prepubescent girls; and

− Violence and sexual predatory behaviour.

Presentence Report

[16] In the Presentence report dated March 1^st, 2018, Ms. Diane Laporte indicates that Mr. Pahle is 35 years old and has been living with his new spouse since January 2018. He had completed college level studies in Cornwall, the Police Foundations’ Program, and nine months of training at the Canada Border Services Agency (CBSA) learning centre in Rigaud, Quebec.

[17] Mr. Pahle’s employment with CBSA was suspended as a result of this charge. He was unemployed for two years, but at the time of the sentencing report, was working at Unik landscaping on a seasonal basis, on call for snow plowing, and also receiving employment insurance benefits during the off season.

[18] Mr. Pahle was in a relationship when he was 26-years-old for 9 years with a 4-year period of hiatus. He started looking at child pornography during this period and at the resumption of his relationship. The couple split up after he was arrested on this charge in the fall 2014. Mr. Pahle’s current partner is not aware of his conviction.

[20] Mr. Pahle indicated to a probation officer that past events, such as the deaths of his mother and brother, have had significant emotional impacts on him. Mr. Pahle also suffers physical symptoms from a 2009 multiple sclerosis (M.S.) diagnosis. Further, Mr. Pahle experiences recurring effects from depression, negative emotions, and reports having had sporadic ideations of suicide since 2008.

[22] The probation officer assessed Mr. Pahle as having experienced a history of significant negative effects which have “prevented him from full evaluation of moral conduct, full growth, and from wholly taking responsibility for his own actions.” The probation officer confirmed that Mr. Pahle had a significant level of anxiety, low level of self-esteem, difficulty in dealing with problems in a constructive manner, and an overall dissatisfaction with his life. According to the probation officer, Mr. Pahle’s offence shows an “inadequate mechanism of adaption” and some deviant sexual interest in prepubescent girls.

[24] Mr. Pahle did not take any steps to engage in a specialized sexual delinquency program.

[25] Further, the probation officer stated that “[a]lthough there is some acknowledgement of his criminal behaviour and the deviant nature of that behaviour, Mr. Pahle has very little understanding of, and in particular, very little appreciation of the notions related to his own behaviour. Given these conditions, the probability of a risk of reoffending cannot be discounted.”

[26] Only Mr. Pahle’s father is aware of the proceedings against him, which the probation officer identified as an area of concern as there is no social safety net.

[27] In March 2018, the probation officer recommended that Mr. Pahle attend a program that specializes in sexual delinquency and provided him with contact information. In addition, Mr. Pahle also needs to work on managing his personal issues.

Sexual Behaviour Psychiatric Report

[28] Mr. Pahle was referred to the Sexual Behaviours Clinic for psychiatric assessment on an Order under s. 21 of the Mental Health Act, R.S.O. 1990, c. M.7. A report by Dr. J. Paul Fedoroff from the clinic and dated May 15, 2018, was filed.

[29] In speaking to Dr. Fedoroff, Mr. Pahle stated that “he believes he is partly to blame for the alleged offence” and “[h]e believes he was influenced by severe depression, post-traumatic stress disorder (PTSD), and M.S. at the time of the offence.” When asked about the PTSD, Mr. Pahle responded that in 2008, he “witnessed an accident in which three people died (car accident). He was never treated. He requested time off, but was declined.”

[30] Mr. Pahle also said that suicide has been on his mind for a long period of time and that his level of stress and anxiety has increased due to his employment and his ex-wife.

[31] As an expert in sexual behaviours, Dr. Fedoroff opined the following regarding Mr. Pahle’s mental status:

− Phallometric testing indicated sexual arousal to men, women, and children (female and male). However, Mr. Pahle showed more arousal to adults than to children;

− Mr. Pahle does not meet the diagnostic criteria for pedophilic disorder, because:

• although he admits some masturbation while viewing child pornography, he did not describe persistent sexual masturbation while viewing child pornography, and he did not describe persistent sexual interests in children;

− If Mr. Pahle receives a federal sentence, he may be eligible for a wide array of treatment programs; if Mr. Pahle receives a provincial sentence he would be eligible for some programs; and

− Mr. Pahle is at low risk to reoffend and is open to treatment that “likely would be successful”.

Dr. Sheridan Reaveley-Diaz

[33] Dr. Sheridan Reaveley-Diaz is a general practitioner and was qualified as a participating expert. She had treated Mr. Pahle since 2012, when he first complained of insomnia and intrusive nightmares.

[35] Dr. Reaveley-Diaz described Mr. Pahle’s M.S. symptoms and neurological problems, including dysfunction with the autonomic visual motor and sensory systems, depression, and difficulties in learning and thinking. She did not refer him to a neurologist or specialist in M.S.

[36] Dr. Reaveley-Diaz described the stresses Mr. Pahle experienced at his work and being a first responder to a tragic car accident, saying that the scene had caused him to have recurring dreams.

[37] Over the past 6 years, Dr. Reaveley-Diaz has noticed that Mr. Pahle has had more difficulty in planning activities and being able to act on them. Further, he exhibits a decreased interest in previous activities, decreased energy, irritability, intrusive sinister thoughts, and suicidal ideations.

Dr. David Kaufman

[38] In December 2017, Mr. Pahle engaged the services of a psychologist, Dr. David Kaufman, for the purpose of preparing a psychological assessment report. Dr. Kaufman was qualified as an expert in identifying psychological issues and making recommendations. He met with Mr. Pahle on three occasions.

[41] Dr. Kaufman’s report, dated February 7, 2018, diagnosed Mr. Pahle as follows:

− PTSD;

− Persistent depressive disorder (dysthymia);

− Depressive disorder due to M.S.;

− Major depressive disorder, single episode, unspecified;

− Social anxiety disorder; and

− Generalized anxiety disorder.

[42] Dr. Kaufman administered various assessments. A pain inventory completed by Mr. Pahle on February 2, 2018, indicated that he experiences pain in his neck area, back, and right knee. It is a self-reporting inventory, and Mr. Pahle indicated that the pain interfered with is mood as he “gets annoyed very easily”.

[43] Dr. Kaufman’s observations also included the following:

− Mr. Pahle scored very high on intrusive experiences, which include: “intrusive post-traumatic reactions and symptoms, e.g. nightmares, flashback, upsetting memories that are easily triggered by current events and repetitive thought of an unpleasant previous experience that intrudes awareness”;

− Mr. Pahle scored high on insecure attachment-rejection sensitivity, which focuses on the preoccupation with and fears about the possibility of rejection and abandonment. Typical items are described in the report as “… excessive concerns about being rejected in interpersonal situations and being abandoned by desired or loved ones”;

− Mr. Pahle scored significantly on impaired self-reference-other directedness associated with childhood maltreatment;

− Mr. Pahle scored significantly on Trauma Symptoms Inventory-2. In the report, Mr. Pahle indicated that his index trauma is “having been a witness to someone being killed in a car crash more than a year ago when working as a border/custom patrol officer”;

− Mr. Pahle scored high on the tension reduction behaviour scale which measures the individual’s self-reported tendency to externalize and/or reduce distress through self-destructive or self-injurious behaviours, aggression, thrill seeking, dysfunctional eating, dramatic behaviour, and/or throwing or hitting things when upset;

− Mr. Pahle self-reported certain feelings and thoughts, ranging from once a week or several times a week, including upsetting thoughts and feeling frightened;

− Mr. Pahle has significant levels of dissociation following index trauma that continued to the time of assessment;

− The Beck depression inventory measures severity of depression and Mr. Pahle exhibited severe level of depression. His scores were showing a severe level of depression with severe feelings of past failure, guilt, punishment feelings and agitation; moderate feelings of self-dislike, self-criticalness, loss of interest, worthlessness, changes in sleeping pattern, irritability and concentration difficulty and mild feelings of sadness, pessimism, loss of pleasure, suicidal thoughts or wishes, crying, indecisiveness, loss of energy, changes in appetite and tiredness or fatigue.

− Mr. Pahle did not have significant substance abuse issues;

− Mr. Pahle scored high on suicide probability scale, indicating that he is likely to engage in risky behaviour and exhibits hopelessness, suicide ideation, and hostility;

− On the informal pain inventory, Mr. Pahle rates his physical pain as 8 out of 10 which interferes with his mood, walking ability, relations with other people, sleep, and enjoyment of life;

− Mr. Pahle scored in the high range on the State-Trait Anger Expression Inventory 2, in that he reports experiencing angry feelings or becoming angry when he feels he is being evaluated negatively or treated unfairly by others, or when they perceive that his progress is being blocked; and

− When angry, Mr. Pahle is “ likely to express his anger outwardly, either verbally or physically” and “it is likely that he habitually suppresses anger in a variety of situations. Thus he feels extremely angry, probably very anxious at times, and will do almost anything to reduce the intensity of these feelings”, “the pressure to reduce their anger causes increased anxiety and, ultimately, either depression or an unpredictable show of aggression.”

[44] According to Dr. Kaufman, Mr. Pahle is likely to perceive a variety of situations as personally threatening and to react to them with anger. Dr. Kaufman further states that:

Excessive sensitivity to criticism is probably a hallmark of his relationships with other people and may make him believe that other people are being critical or getting their way when they are not. Because he also tends to suppress anger, he is likely to withdraw in the face of perceived criticism and to become anxious and depressed. If the situation causing the anger persists, he may become depressed because of his massive internal conflict. Treatment needs to focus on his hypersensitivity to others.

… therefore, he not only has problems with outwardly directed anger toward people and objects, but also with over-supressing (sic) his anger.

“Although he expresses his anger quite often, at the same time he expends a great deal of energy trying to control this outward expression. This may be because he does not wish to be condemned socially for aggressive behavior or because he likes to feel in control of his actions. Furthermore, the conflict generated by these two opposing forces may create a great deal of emotional trouble for him, and if not dealt with, could ultimately lead to major health problems.

[47] Dr. Kaufman found that there was no evidence that Mr. Pahle was motivated to portray himself in a more negative or pathological light than the clinical picture would warrant. There was an increase in the possibility of multiple diagnoses given that the PAI clinical profile was marked by significant elevations across a number of different scales. Mr. Pahle had a difficult time dealing with behavioural expressions or thoughts of being angry, and Dr. Kaufman found that he is probably preoccupied with control.

[50] In conclusion, Dr. Kaufman found that Mr. Pahle suffers from significant problems with cognition due to M.S., and that cognitive dysfunction can be one of major causes of early departure from the workforce. Other issues include difficulty making decisions or showing poor judgment, trouble remembering what to do on the job, and difficulty finding the right words.

[52] Dr. Kaufman describes Mr. Pahle as mild mannered, non-violent, and in an extremely fragile state of mind, in need of psychological support. According to Dr. Kaufman, his prognosis is guarded to minimal. Dr. Kaufman opines that incarceration would be extremely detrimental to Mr. Pahle’s psychological well-being, as he would not receive the necessary treatment for his psychological disorder from his post traumatic stress disorder, depression and anxiety as well as, his ongoing suicidal ideation. Instead, Dr. Kaufman recommends that Mr. Pahle be placed in a mental health center to receive daily and necessary psychotherapeutic intervention.

[55] This evidence concentrates on the rehabilitative principle as it applies to Mr. Pahle and should be considered when determining a fit sentence.

[56] Under cross-examination, Dr. Kaufman confirmed that there was no other corroborating evidence other than Mr. Pahle’s self-reporting. He did not read Dr. Fedoroff’s report. Further, Dr. Kaufman thought the accident occurred last year when in fact it occurred in 2008 and could not say how this would have affected his results.

Legal Principles

[58] Firstly, child pornography is a very serious crime that affects one of the most vulnerable segments of our population. McLaughlin J. in R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at para. 158, stated:

The very existence of child pornography, as it is defined by section 163.1(1) of the Criminal Code, is inherently harmful to children and to society. This harm exists independently of dissemination or any risk of dissemination and flows directly from the existence of the pornography representations, which on their own violate the dignity and equality rights of children. The harm of child pornography is inherent because degrading, dehumanizing, and objectifying depictions of children, by their very existence, undermine the Charter rights of children and other members of society. Child pornography eroticizes the inferior social, economic and sexual status of children. It preys on pre-existing inequalities.

[59] In crafting a fit sentence in this case, the Court must review s. 718 of the Code which requires me to consider the sentencing objectives referred to in that section which are denunciation and specific and general deterrence when the abuse involves children under the age of eighteen.

[60] Although the internet has benefited society in many areas such as in economic and social venues, it has also caused other not so laudable results such as the facilitation of the availability and dissemination of child pornography.

[61] A review of the case law provides some examples of sentences imposed in similar circumstances.

[62] R. v. Kwok, 2007 CanLII 2942 (Ont. S.C.), was decided over a decade ago and comments made by Molloy J. in that case still ring true today. At para. 48, she observed, in reference to sadistic child pornography, that “[w]hile the description in words of such disturbing images is shocking, nobody can fully appreciate the sickening horror of such pornography without actually looking at it.”

[63] In that case, Molloy J. sentenced the offender to one-year term of imprisonment and three years’ probation for possession of child pornography consisting of over 2,000 images and 60 videos. The size of the collection, the age of the victims, the depravity of the acts depicted, and the bondage associated with some of the images were considered aggravating factors.

[64] A request for a conditional sentence was rejected due to, among other things, the nature and size of the collection. There had been some progress towards treatment and some limited recognition of the harm caused by child pornography but the Court did not accept that insight, remorse and treatment were strong mitigating factors.

[65] Kwok has been cited numerous times its in-depth list of factors to consider in child pornography cases at para. 7:

However, an analysis of the case law does reveal an emerging consensus on the relevant factors to be taken into account. Generally speaking, any of the following are considered to be aggravating factors: (i) a criminal record for similar or related offences; (ii) whether there was also production or distribution of the pornography; (iii) the size of the pornography collection; (iv) the nature of the collection (including the age of the children involved and the relative depravity and violence depicted); (v) the extent to which the offender is seen as a danger to children (including whether he is a diagnosed pedophile who has acted on his impulses in the past by assaulting children); and (vi) whether the offender has purchased child pornography thereby contributing to the sexual victimization of children for profit as opposed to merely collecting it by free downloads from the Internet. Generally recognized mitigating factors include: (i) the youthful age of the offender; (ii) the otherwise good character of the offender; (iii) the extent to which the offender has shown insight into his problem; (iv) whether he has demonstrated genuine remorse; (v) whether the offender is willing to submit to treatment and counseling or has already undertaken such treatment; (vi) the existence of a guilty plea; and (vii) the extent to which the offender has already suffered for his crime (for example, in his family, career or community). [Citations omitted.]

[66] Below is an update of some cases that have been decided since the release of Kwok.

[67] In R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, the Ontario Court of Appeal allowed an appeal of a sentence of two years less a day followed by three years’ probation imposed by the lower court. In imposing a sentence of three and half years, the Court of Appeal confirmed that denunciation and deterrence are the primary considerations for sentencing in child pornography. Inksetter is distinguished from this case as the accused in that case was also convicted of making child pornography available; however, at para. 18, the Court found that probationary terms are a traditionally rehabilitative tool, and do not generally serve the considerations of denunciation and general deterrence.

[68] At para. 16, the Court in Inksetter reiterates that the principles of denunciation and general deterrence are the primary principals of sentencing for any offence involving the abuse of a child, and citing R. v. D.G.F., 2010 ONCA 27, the Court states at para. 26 that:

… the incidence of child pornography appears to be increasing and expanding as technology becomes more sophisticated …

▪ Child pornography is available to anyone now “at the touch of a button”;

▪ A person can now access a “peer-to-peer network” just as easily as they can access the internet, and can search for child pornography on the “dark Web” just as easily as they can do a regular Google search;

▪ Members of the Ottawa Internet Child Exploitation (“ICE”) unit, on average, about once every week, learn of new applications in respect of child pornography crime that they never even knew existed;

▪ There are so many reports of child pornography related crime coming into the Ottawa ICE unit that the police have to triage by how bad the child pornography is; and

▪ The images and videos keep getting more aggressive. The police are now identifying more images of “baby rape.”

[70] Also noteworthy and relevant to this decision, given the ONCA’s recent decision in John, is that the Court in Inksetter acknowledged that the mandatory minimum sentence for the possession of, and making child pornography available was being challenged constitutionally. Nevertheless, para. 24 states:

However, even if the mandatory minimums are declared of no force and effect, Parliament’s legislative initiatives signal Canadians’ concerns regarding the increasing incidence of child pornography.

[71] Again citing D.G.F., the Court in Inksetter stated at para. 25, that for the previous two decades courts had been on a “learning curve to understand both the extent and the effects of the creation and dissemination of child pornography over the internet and to address the problem appropriately”. Further adding that in cases involving the making of child pornography and child sexual abuse, significant custodial sentences had been imposed.

[72] In R. v. Davies, 2012 ONSC 6021, Spies J. imposed a sentence of 15 months following a conviction for possession of child pornography, specifically, 4,254 child pornography images and 449 child pornography movies. The offender was 52-years-old and had no prior criminal record. At para. 63, the Court stated:

With respect to the concerns about Mr. Davies’ medical condition, there is no authority to reduce the sentence for Mr. Davies that I would otherwise consider fit. In the Ontario Court of Appeal’s decision in R. v. Aquino, [2002] O.J. No. 3631, the accused was seriously disabled and required rehabilitative therapy. In relation to his medical condition, the Court of Appeal stated:

The correctional authorities are obliged under the Corrections and Conditional Release Act to provide inmates with essential healthcare. For that purpose, the respondent should be assessed immediately and appropriate steps taken to provide the proper medical care, including the rehabilitative treatment which the evidence indicates that the respondent requires.

[73] In R. v. Andrukonis [2012] ABCA 148, the Alberta Court of Appeal stated at para. 29-30:

First, this Court has repeatedly stated that child pornography constitutes a clear and present danger to children round the world: R. v. B(TL), 2007 ABCA 61, 218 C.C.C. (3d) 11, leave denied [2007] S.C.C.A. No. 136 (QL) at para. 27. Its very existence is inherently harmful to children and to society: R. v. Sharpe, 2001 SCC 2, [2001] 1 SCR 45 at paras. 82, 87 to 94 and para. 158. We reject the proposition that because the possession of child pornography involves use of technology to view the sexual abuse of children elsewhere in the world, it is somehow much less culpable than abetting the sexual abuse of the same children in person. The reality is that the children captured for life in the child pornography have been abused somewhere. Therefore, the fact that child pornography allows perpetrators to take in the sexual abuse of children virtually through the Internet does not change its essential character. The unvarnished truth is this: possession of child pornography is itself child sexual abuse. To fail to recognize that this is so improperly diminishes the gravity of this offence.

Second, the existence of a market for this material necessarily encourages and enables the continued production of child pornography. As noted in R. v. Hammond, supra at para. 10: "The existence of a market for this material is necessarily an inducement to the production and distribution of child pornography by others." The producers, distributors and users of the child pornography are part of a destructive, often integrated, subculture intent on ruining children for their own perverted purposes

[74] In R. v. Pelich, 2012 ONSC 4100, Dunnet J. sentenced the offender with four years, one count of making child pornography available and one count of accessing child pornography and two years to be served concurrently on the possession of child pornography. The child pornography consisted of 125 unique images of 136 total images, another 1,617 unique images of 4,730 total images and an additional 3,518 images and 92 videos. It included female toddlers depicted in sexual acts with adult males. The offender continued to maintain his innocence and there was no evidence of insight or remorse.

[75] In R. v. Lynch-Staunton, 2012 ONSC 218, Ratushny J. imposed a sentence of five years where an offender plead guilty to possession and distribution of child pornography consisting of 2,097 pictures, 1,763 stories, 574 movies or movie clips. The collection contained a high proportion of very young children, including infants, and a baby penetrated by an erect male penis with ejaculate visible. The sentence was to reflect the gravity of the offence, the accused’s high degree of moral blameworthiness, and the need to protect the public and to denounce and deter.

[76] In R. v. Dumais, 2011 ONSC 276, the offender pleaded guilty to possessing child pornography consisting of 170 images and 44 movies depicting fellatio, penetration, and voyeurism of intimate parts of young female bodies. The offender had no criminal record, was voluntarily attending a sexual behaviours assessment, complied with recommendations, attended ongoing therapy sessions, and was unlikely to reoffend. Ratushny J. found that the offender had accepted full responsibility and was remorseful. He had accessed child pornography due to his curiosity, not to satisfy his sexual desires. She sentenced the offender to nine months in jail and one-year probation.

[77] In R. v. Bock, 2010 ONSC 3117, the offender was sentenced for the offence of possession of child pornography to one year in jail to be served concurrently to the longer penitentiary sentence for making available child pornography. It consisted of 381 images and 1,007 unique child pornography videos described at para. 18, as “extremely vile and depraved child pornography.” The children depicted in the images were victimized sexually, physically, and emotionally by the adults who produced the pornography. The offender was 67 years old, married for over 44 years, and had 5 children. He had no criminal record and was found not likely to re-offend. He further showed no insight or genuine remorse, nor was there mitigation with respect to him seeking counselling.

[78] In R. v. Smith, [2008] O.J. No. 4558 (S.C.), after a late guilty plea to one count of possessing child pornography and one count of making child pornography available, the offender was sentenced to 20 months after time served of one month for the making child pornography charge and 12 months concurrent for the possession charge in addition to three years’ probation. Clark J., at para. 35, found, beyond a reasonable doubt, that the offender had a “profound and abiding obsession with child pornography as a source of sexual stimulation.”

[79] Defence counsel referred me to the trial decision of the British Columbia Supreme Court in R. v. Swaby 2017 BCSC 2020. The appeal decision in that matter was rendered after the sentencing hearing (see: R. v. Swaby, 2018 BCCA 416). The British Columbia Court of Appeal dismissed the Crown’s appeal and upheld the lower court’s decision that the mandatory minimum sentence for a summary conviction for possession of child pornography of 90 days was grossly disproportionate and sentenced the 25-year-old offender to a conditional sentence order. At para. 100, the Court of Appeal stated that the sentencing judge mischaracterized the fact that Swaby was not a pedophile and his good performance on bail as mitigating factors – it was an error for him to do so.

[81] In dismissing the appeal, the Court in Swaby considered the following mitigating circumstances highlighted by the sentencing judge, at para. 31:

− The offender had a small collection of 480 images;

− The offender’s youth;

− The offender’s relative isolation at the time of the offence;

− The offender’s cooperation with authorities;

− The offender’s mental health and cognitive issues;

− The offender’s lack of criminal record;

− The offender’s expression of remorse and early guilty plea;

− The offender’s willingness to be assessed and treated;

− The fact that the offender was not a pedophile; and

− The offender’s compliance with bail conditions.

[82] The Court-ordered psychiatric report confirmed the offender’s level of cognitive impairment, low intellectual functioning, low risk of re-offending, and that he had paedophilic interest but no paedophilic disorder. Further, the report confirmed that the offender was suicidal, had auditory hallucinations, and likely had schizoaffective disorder.

[83] The Court reviewed the reasons of the sentencing judge, who concluded that the offender’s cognitive and mental health issues likely contributed to his commission of the offence, and were therefore mitigating factors. The sentencing judge further found that the offender did not realize the gravity of his actions.

[84] The sentencing judge further referred to the offender as “child-like” due to his impairments. Both psychologists who interviewed the offender agreed on the deleterious effect that incarceration would have on him.

[85] At para. 68, however, the Court found that the sentencing judge erred when he concluded that possession of child pornography did not involve the “direct infliction” of harm on others, and that this should be taken into account in considering an offender’s moral culpability. The Court found that it is well established that the offence of possession of child pornography inflicts serious harm on children by providing a market for the material (at para. 67).

[86] At para. 75, both courts concluded that the offender had a highly reduced level of moral culpability based on his personal circumstances. It was that reduced level of culpability which supported the finding that a fit and proportionate sentence would be a conditional sentence order.

[87] In R. v. Nisbet, 2011 ONCA 26, at para. 1, the Ontario Court of Appeal stated:

Sadly, possession of child pornography facilitated through the internet is on the rise. It is an abhorrent crime that victimizes the most vulnerable members of our society and hence the need for sentences to reflect denunciation and deterrence.

[88] In R. v. Ritchie, [1997] O.J. No. 5564 (Ct. J.), the Court held that a conditional sentence was not appropriate and imposed a sentence of 15 months’ imprisonment and 3 years’ probation. The offender was charged with possession of child pornography which consisted of 1,350 computer generated graphic image files and 670 articles.

[89] In R. v. J.S., 2018 ONCA 675, 142 O.R. (3d) 81, the appellant was convicted of sexually abusing his 3 nieces (6-month-old twins and a 4-year-old), filming the abuse, and distributing the photographs and movies on an internet website devoted to the sexual abuse of children. He was also convicted of possession of child pornography. His collection included images and films of sadistic sexual abuse and sexual degradation of very young children. He appealed his sentence of 18 years (less 18 months’ credit for pre-trial custody) on his convictions after guilty pleas to counts of making child pornography, distributing child pornography, possessing child pornography, sexual assault with a weapon, and three counts of sexual interference.

[90] What is helpful to the case at bar, is the Court of Appeal’s comments on the child pornography at para. 55:

It has been stated time and again, often with reference to this court’s decision in R. v. D. (D.) (2002), 2002 CanLII 44915 (ON CA), 163 C.C.C. (3d) 471 (Ont. C.A.), that in the sentencing of adult sexual predators, the objectives of denunciation, general and specific deterrence and the separation of offenders from society must be paramount. In D. (D.), Moldaver J.A., as he then was, stated, at paras. 33-35:

Before going further, I wish to emphasize that the ranges which I have identified are not meant to be fixed and inflexible. On the contrary, sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases.

The overall message however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in s.718(a), (b) and (c) of the Criminal Code, commonly referred to as denunciation, general and specific deterrence, and the need to separate offenders from society, must take precedence over the other recognized objectives of sentencing.

We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at once our most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselves against predators like the appellant and as such, they make easy prey. People like the appellant know this only too well and they exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow.

[91] In R. v. Esltsub 2014 ONCJ 546, Speyer J. refused to accept a joint sentencing submission from the Crown and defence for 90 days’ imprisonment where it was found that in the span of two months, the offender had searched for and downloaded several hundred child pornography images. The police discovered approximately 481child pornography images, 437 of which are unique in nature (i.e., are not duplicates).

[92] Speyer J. believed that the joint submission was not a fit sentence given the governing

sentencing principles of denunciation and deterrence. At para. 3, she said:

The images depict very young girls, aged 2 to 6, being sexually assaulted. The images are suggestive of oral, vaginal and anal intercourse with adult men. A sample image shows a toddler with the tip of a dildo inserted in her vagina. To say that the images are disgusting and disturbing is an understatement.

[93] Speyer J. imposed a sentence of 12 months plus 3 years’ probation.

[94] In R. v. Riffon, 2014 ONCJ 262, Dorval J. imposed a sentence of 14 months of incarceration where the offender had a collection in excess of 7,600 unique images. At para. 28, Dorval J. noted that the existence of child pornography depicting bondage was particularly aggravating. At para. 18, Dorval J. cites with approval Renaud J.’s comments in R. v. Foley, 2013 ONCJ 26, at para. 21, where the objectives of denunciation are explained as:

When denunciation is viewed as an exercise in communication, one of the lessons that emerge is that a cardinal element of sentencing that is fundamental to the preservation of the Canadian community is the continued development of an unwavering understanding of what actions are positive in nature and which are inimical to the public weal. As stated earlier, sentencing must advance the societal goal of promoting “a just, peaceful and safe society.” In this sense, judges are instructed to address the imperative need to denounce emerging threats to the well-being of the community and, as well, to alert the whole of the citizenry to the fact of new threats to the safety of all and in particular to the safety of many vulnerable victims.

[95] In R. v. Dean, [2010] O.J. No 5305 (S.C.), Ratushny J. acknowledged the normal range of sentence for possession of child pornography was that of 6-18 months. However, she imposed a sentence of 3 years imprisonment for possession of child pornography to reflect a number of aggravating circumstances, including the vast number and nature of the images collected by the offender, as well as his total lack of insight and remorse.

[96] References have been made that amendments to the Code imposing a mandatory minimum sentence was the signal of a need to address these crimes and the abhorrence that our community has to the sexual victimization of children.

[97] The fact that the mandatory minimum sentence is no longer in force and effect does not diminish these offences or ignore the need to consider deterrence and denunciation.

[98] In my view, since Kwok, the courts have continued to articulate the concern of the rising nature of this type of crime and the requirement that the Court ensures that the sentencing principles of deterrence and denunciation are given ample consideration.

Parties’ Positions

[99] Counsel for Mr. Pahle submits that the Court should consider the following individual circumstances of his client:

− Due to his employment:

• Being introduced to child pornography through his employment as a border guard with CBSA;

• PTSD as a result of being a first responder to a serious fatal car accident;

• His mental and physical health; namely, the need to observe child pornography as part of his employment with no treatment for PTSD; and

• Fear of reporting his PTSD and other ailments such as M.S. as he feared losing his job.

− His inability to obtain therapy since arrest due to lack of finances;

− His mental health, including his depression disorder, and his past suicidal thoughts;

− That he did not share the images nor profit economically, but rather, viewed the images in the privacy of his own home;

− That assessments have suggested a conditional sentence with a direction to serious counselling;

− That he has no risk of re-offending; he is not a physical risk, and hence does not need to have an order that he stay away from schools or children given this low risk;

− That he needs to be engaged back into the community;

− That he will be punished by being included on the sex offenders’ website as required under the Code;

− That his immune system is at risk if placed in a prison;

− That denunciation and general deterrence does not trump all other sentencing principles;

− That he would not be here, but for him coming across this child pornography at the border in the midst of protecting the community; and

− That his case is distinguishable from the John case because of his CBSA job, which has caused some of his mental health issues.

[100] The Crown requests an incarceration of 18 to 24 months to meet the objectives of denunciation and deterrence. The size and content of the collection are aggravating factors. Possession of child pornography is a serious crime that has been on the rise and the Courts must send a message that these offences attract serious lengths of incarceration.

Analysis

[101] In determining a fit sentence, the Court considers the following aggravating factors:

(i) The size of the pornography collection:

• The size and nature of the Mr. Pahle’s collection is a seriously aggravating factor.

o He had 29,969 images, of those, 9,888 images which qualified as child pornography, and of that, 6,661 were unique.

o The images depicted young children, including infants, virtually all girls, posed in positions, and photographs where the focus of the image was the child’s genital or anal area.

o A variety of images were viewed that included vaginal and anal intercourse, penetration by more than one adult male;

• According to the investigating officer, this is a relatively small collection as usually there can be up to hundreds of thousands of images;

• In my view, this number is not insignificant, especially in light of the some of the cases discussed above.

(ii) The nature of the collection (including the age of the children involved and the relative depravity and violence depicted):

• The violence exhibited in some of the videos, especially those on infants, brings this into a seriously aggravating circumstance;

• There is a video of “baby rape” here;

• There were young girls who were filmed masturbating, including inserting foreign objects, and vaginal insertion;

• There were young girls between age of 8 and 12-years-old performing fellatio, a girl having a vibrator being inserted into her vagina and then anally penetrated; and

• There was a young child between 3 and 6-years-old blindfolded with an adult male attempting to insert his penis into her vagina.

(iii) The extent to which the offender is seen as a danger to children (including whether he is a diagnosed pedophile who has acted on his impulses in the past by assaulting children):

• There is no evidence that Mr. Pahle is a danger to children.

• Dr. Fedoroff found that Mr. Pahle was attracted mostly to adults, but did show some arousal to prepubescent young girls.

(iv) Whether the offender has purchased child pornography thereby contributing to the sexual victimization of children for profit as opposed to merely collecting it by free downloads from the Internet:

• Evidence suggests that Mr. Pahle downloaded material using TOR and it is not clear whether he had to purchase it.

[102] Generally, recognized mitigating factors include:

(i) The youthful age of the offender;

• Not applicable here;

(ii) The otherwise good character of the offender;

• No evidence here other than Mr. Pahle worked at the CBSA;

(iii) The extent to which the offender has shown insight into his problem;

• Limited insight as observed by the probation officer and Dr. Fedoroff;

(iv) Whether the offender has demonstrated genuine remorse (this can be a mitigating factor but not an aggravating factor if it not present);

• No apparent remorse given as to the probation officer but he did tell Dr. Fedoroff that he was partially to blame;

(v) Whether the offender is willing to submit to treatment and counseling or has already undertaken such treatment;

• Mr. Pahle is prepared to pursue treatment; however, in the four years since his arrest, he has done very little to move towards his own rehabilitation. He indicates lack of funding;

• The Court notes that treatment is available in penal institutions.

(vi) The existence of a guilty plea;

• Mr. Pahle did not plead guilty but was cooperative with the police and, once the Garofoli/Charter application was determined, he did not contest issues such as the voluntariness of his statement to the police and that the images constituted child pornography thereby shortening his trial. Mr. Pahle was also cooperative with the police when they executed a search warrant at his residence;

(vii) The extent to which the offender has already suffered for his crime (for example, in his family, career, or community).

• Mr. Pahle has suffered immensely. He was suspended from work with CBSA, lost his spouse, and has been unable to share his personal circumstances with others around him. Only Mr. Pahle’s father knows about this offence.

[103] In determining a fit sentence, the Court considers the following other mitigating factors:

(i) Mr. Pahle had no criminal record for similar or related offences; and

(ii) Mr. Pahle did not produce nor distribute the pornography, but rather, he possessed it.

[104] Mr. Pahle has provided medical evidence which in summary provides the Court with his individual struggles and challenges to date. Mr. Pahle did not testify but the Court heard from his family doctor Dr. Reaveley-Diaz and psychologist Dr. Kaufman who conducted an assessment.

[105] As discussed, essentially, the medical evidence has portrayed a vulnerable, depressed individual with some past suicidal ideations and symptoms of M.S.

[106] Defence counsel has aptly set out Mr. Pahle’s personal life, his previous abusive childhood, and the effect of his mother and brother’s death, as well his bearing witness to a car accident which claimed three lives. The accident has led him to having PTSD. Mr. Pahle also has failed relationships and challenges in his work environment.

[107] Naturally, Mr. Pahle’s family doctor and the psychologist are interested in his physical, mental, and emotional health, and are concerned that incarceration would be an impediment to his journey to recovery and rehabilitation. In addition, the doctors are concerned that given Mr. Pahle’s mental health, he would be very vulnerable if ordered to serve jail time.

[109] Both doctors are interested in Mr. Pahle tapping into community services for therapy. Mr. Pahle needs a comprehensive plan to obtain therapy to allow him to work on his numerous issues including his depression, lack of self-confidence and self-awareness.

[110] The Court notes that Mr. Pahle was arrested in the fall 2014, and his sentencing occurred in fall 2018. He has not moved forward with any serious therapy for either the sexual rehabilitation recommended by Dr. Fedoroff in his report, nor the therapy recommended by Dr. Kaufman in February 2018.

[111] The probation officer who prepared the Pre-Sentence Report, Dr. Fedoroff, and Dr. Kaufman all agree that Mr. Pahle is not likely to re-offend, so specific deterrence does not figure prominently in crafting a fit sentence for this offender.

[112] The Court has considered the importance of Mr. Pahle’s rehabilitation when considering the proper sentence for this serious charge. Nonetheless, the Court must also consider the seriousness of his offence, the effect that this exponentially increasing crime is having on young children, including babies, in the cyber world of child pornography. As enunciated by many courts on many occasions, the principles of denunciation and general deterrence figure prominently in this analysis.

[115] Now turning to the issue of a conditional sentence. In R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 40, the Supreme Court cited R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, there “is a very significant difference between being behind bars and functioning within society” under a custodial sentence order.

[117] Further, the Supreme Court in Proulx, at paras. 113-115 stated:

In sum, in determining whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing, sentencing judges should consider which sentencing objectives figure most prominently in the factual circumstances of the particular case before them. Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration. In determining whether restorative objectives can be satisfied in a particular case, the judge should consider the offender’s prospects of rehabilitation, including whether the offender has proposed a particular plan of rehabilitation; the availability of appropriate community service and treatment programs; whether the offender has acknowledged his or her wrongdoing and expresses remorse; as well as the victim’s wishes as revealed by the victim impact statement (consideration of which is now mandatory pursuant to s. 722 of the Code). This list is not exhaustive.

Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence. Conversely, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of diminished importance, depending on the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to be served.

[118] The Court then provided a useful summary of its reasons at para. 127 which includes the requirement that a judge should give serious consideration to the possibility of a conditional sentence in all cases by examining whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

[119] The Court must also consider s. 742.1(a) of the Code, which states that:

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;

[120] I have been asked to compare this matter to the recent Court of Appeal decision in John, which struck down the mandatory minimum provision. In John, the Court of Appeal upheld the sentence of 10 months’ incarceration imposed by the trial Judge. The offender was 29-years-old at the time of the offence and 31-years-old at the time of sentencing. He has suffered from serious mental health problems for which he was inadequately treated. At times he was suicidal. He has pursued a course of psychotherapy with a view to dealing with his problems. The offender was employed and was continuing counselling. He was remorseful, and no risk factors have been identified requiring further treatment.

[121] Despite these mitigating factors, the size and nature of the offender’s collection was a seriously aggravating factor, as he had 89 unique videos and 50 unique images of child pornography. The offender actively sought out these images and videos; his collection included images of children as young as 4-years-old, and some perhaps as young as 2 or 3-years-old, subjected to anal and vaginal penetration with sex toys and adult penises.

[122] The Court of Appeal stated at para. 46 that, but for the appellant’s very considerable efforts at rehabilitation, the sentence imposed could have been much higher.

[123] In the case before me, Mr. Pahle did not complete any serious form of rehabilitation, showed some remorse or insight into the offence, and was in possession of a much larger collection. I am urged to single out the fact that he was first exposed to this child pornography due to his employment, and this should be a mitigating factor. I do agree that it does marginally diminish his moral culpability in that he did not seek out this type of imagery on his own; however, in my view, this does not diminish the need for the Court to prioritize the denunciation and deterrence aspects of sentencing principles and Mr. Pahle’s responsibility for the offence.

[124] In my view, the very serious nature of the offence – even without evidence of distribution or sharing – is a significant aggravating factor given that possession of child pornography encourages the abuse and exploitation of children. The collection was not small and the nature of the child pornography was disturbing and cruel.

[125] Although Mr. Pahle cannot be penalized for insisting on his right to a trial, he does not get the benefit of a reduced sentence because of a guilty plea. This is a neutral factor.

[126] With respect to Mr. Pahle’s diagnosis of M.S., this does not entitle him to a reduction of sentence. In the Ontario Court of Appeal’s decision in R. v. Aquino, [2002] O.J. No. 3631 (C.A.), the accused was seriously disabled and required rehabilitative therapy, of this, the Court stated at para. 2 that:

The correctional authorities are obliged under the Corrections and Conditional Release Act to provide inmates with essential healthcare. For that purpose, the respondent should be assessed immediately and appropriate steps taken to provide the proper medical care, including the rehabilitative treatment which the evidence indicates that the respondent requires.

[127] Much of Dr. Kaufman’s report was based on Mr. Pahle’s self-declarations and self-reporting; nevertheless, there is evidence that Mr. Pahle has some serious physical and mental health issues that require medical attention and therapy. That said, this is not a case where Mr. Pahle should be spared a jail term due to these health issues. No one suggested that his medical conditions, in any form, caused his offence. There is opinion that Mr. Pahle would not do well in incarceration, but his therapy can commence there and continue post sentence.

[129] Mr. Pahle is not asserting that mental illness was a mitigating factor but rather that the court explore the rehabilitation objective of sentencing.

[130] In R. v. Ellis, 2013 ONCA 739, 303 C.C.C. (3d) 229, the offender had bipolar disorder. At para. 107, the Ontario Court of Appeal held the judge should ask themselves whether the offender’s culpability for the offence was sufficiently attenuated by their mental illness to adjust the balance of the sentencing principles in favour of rehabilitation and away from denunciation and deterrence. Judges must determine the extent to which the illness contributed to the conduct in question and the impact of that finding on the appropriate sentence (at para. 116). If the offender’s mental illness played a role in the commission of the offence, then his culpability is diminished and hence treatment and rehabilitation of the offender may be paramount considerations. (at para. 117).

[131] Unlike the Swaby case, Mr. Pahle’s mental health condition was not a contributing cause to this offence. Mr. Pahle was not a young man with cognitive deficiencies and without a full appreciation of what he was doing. Mr. Pahle was not like Mr. Swaby, who had a small collection of 488 images. Mr. Pahle’s collection was extensive and would have required downloading much more than Mr. Swaby over likely a longer period of time.

[132] This case has similarities to the Davies and Riffon cases with respect to size and content of the collection. The courts in those cases imposed sentences of 15 months and 14 months, respectively.

[133] I do not find that a conditional sentence is appropriate as it is not consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2. Given the above mitigating and aggravating circumstances and the objectives of denunciation and general deterrence, I have concluded that incarceration is necessary and a fit sentence is 15 months.

Conclusion

[134] Therefore, I impose a sentence of 15 months’ incarceration which is fit and proportionate to the gravity of the offence and degree of responsibility of Mr. Pahle without regard to the previous mandatory minimum.

[135] In addition, pursuant to s. 487.051(1) of the Code, I make an order in Form 5.03 that Mr. Pahle provide such samples of his DNA as may be required for forensic analysis.

[136] Pursuant to ss. 490.012(1) and 490.013(2)(b) of the Code, I make an order in Form 52 that Mr. Pahle’s name be added to the Sex Offender Registry and that he comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, for 20 years.

[138] Pursuant to s.164.2 of the Code, Mr. Pahle shall forfeit the disks containing child pornography that were marked as exhibits at the trial and in his sentencing hearing.

[139] Once Mr. Pahle is released from custody, there will be a term of probation of three years in addition to the compulsory statutory conditions provided for by section 732.1(2) which are:

(a) keep the peace and be of good behaviour;

(b) appear before the court when required to do so by the Court; and

(c) notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation.

[140] The additional conditions of the order are as follows:

a) Report to a probation officer within two business days of release from custody and thereafter as required by the probation officer;

b) reside at an address that is approved of in writing by the probation officer;

c) abstain from owning, possessing or carrying any weapon, including any offensive weapon, ammunition or explosive substance as defined in the Code;

d) attend and actively participate in any recommended treatment or counselling programs as determined by the probation officer and undergo any recommended assessments. Sign releases or any other form required by the probation officer to monitor attendance and/or progress at any assessment, counselling or treatment sessions; and

e) actively pursue education or employment to the best of his ability and provide proof of his progress to his probation officer on each reporting.

[141] Given the findings that Mr. Pahle is a at low risk of re-offending and there is no danger that he poses a danger to young children, I am declining to make an order under section 161(1) of the Code.

Madam Justice A. Doyle

Released: 2019/01/07

COURT FILE NO.: 15-99

DATE: 2019/01/07

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Her Majesty the Queen

v.

Mathieu Pahle

BEFORE: Justice A. Doyle

COUNSEL: Monica Heine, Counsel for the Crown

James Harbic, Counsel for the Accused

HEARD: October 9, 2018

SENTENCING DECISION

Justice A. Doyle

Released: 2019/01/07