ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RYAN SIMPSON
Defendant
Imran Shaikh, for the Crown
Barry Fox, for the Defendant
HEARD: July 12, 2021, at Toronto, Ontario via Virtual Hearing
Hon. Mr. Justice Michael G. Quigley
Reasons for Sentence
Introduction
1On December 11, 2020, I found Ryan Simpson guilty of five child pornography offences: 2 counts of Possession of Child Pornography, 1 count of Accessing Child Pornography, and 2 counts of Making Child Pornography Available to others under ss. 163.1(4), 163.1(4.1) and 163.1(3), of the Criminal Code of Canada (the “Code”) 1, respectively. My reasons for judgment can be found at 2020 ONSC 7862. The period of the offences was four and one-half months, from May 19 to October 3, 2018.
2The first two offences are punishable on indictment by up to 10 years’ imprisonment, while the third offence, making child pornography available, is punishable by up to 14 years imprisonment. Simple possession of child pornography was punishable by a one-year mandatory minimum sentence, but the Ontario Court of Appeal has now declared it unconstitutional.2 The mandatory minimum sentences associated with the other two offences have now been struck down in a number of concurrent decisions of this court, but have not yet been the subject of appellate review.
3Crown counsel seeks a sentence of three and one-half years of imprisonment, a forfeiture order relating to the offender’s computer equipment, and other ancillary orders.
4Defence counsel asks the court to impose a sentence of two years, less a day, to be served conditionally in the community under s. 742.2, together with three years of probation. He requests that sentence having regard to what he describes as exceptional and unique circumstances of this case, particularly in relation to the offender’s spouse, Ms. Nora Simpson, and the serious and arguably disproportionate impact a custodial sentence would have on her health.
5The issue on this sentencing hearing is to determine the fit sentence for this offender who has been convicted of these serious child pornography offences. He has no criminal antecedents and by all accounts has otherwise been a law-abiding citizen, a good husband, and a model of helping others in the community. The professional opinions confirm that he has a very low risk profile of reoffending going forward.
6Nonetheless, statutory amendments and developments since the 2020 Supreme Court decision in R. v. Friesen3 clearly establish that the predominant objectives of sentencing for sexual and other crimes involving children must be general and specific denunciation and deterrence. Friesen involved actual physical abuse of children, but our Court of Appeal has recognized that the same principles must also apply to child pornography crimes.4 The range for child pornography offences seems to be somewhat lower given the indirect and derivative nature of the crime. However, in all sexual crimes involving children, there has been an invitation for sentencing judges to move towards a new normal, where typical sentences will increasingly involve a term of penitentiary incarceration, in the middle to upper single digit range, at least for actual sexual abuse of children.
7On the other hand, neither the Supreme Court nor other appellate courts in Canada have ruled that a conditional sentence can no longer be available either in child sexual abuse or child pornography cases. However, as my review will show, the circumstances where such a sentence can and will be appropriate are increasingly limited and constrained.
8The issue raised squarely here is whether this is that unique case (i) where a conditional sentence is appropriate and fit, (ii) where the imposition of a custodial sentence would be disproportionate for failing to recognize other core principles of sentencing in these particular circumstances, or (iii), whether a non-custodial sentence would be disproportionate and unfit, on the basis of allegedly failing to recognize the predominant principles of sentencing that I am instructed are to apply in circumstances like these. Those are the principles of general denunciation and deterrence, over and above all of the other continuing sentencing principles that remain relevant, but are not to predominate.
9The appellate guidance suggests that the perceived gravamen of the offences has grown so significantly in the minds of reasonable members of the community, that it will only be the very rarest of cases where the imposition of a strict conditional sentence and full term of probation can be justified and accepted as fit. The trend is strongly towards custodial dispositions, to warn would-be surfers of the internet looking for child pornography that if their peregrinations are caught by the police, there will be a very material and punitive price to be paid.
10I have struggled with this very difficult decision for over two months. It does present unusual personal circumstances that counsel argues calls for a different sentence to avoid visiting potential harm on the offender’s family. On the other hand, it is not open to me to ignore the gravamen of child pornography offences or the direction provided by the land’s highest courts relative to the sentences that ought to be imposed. Given those competing perspectives, this sentence seeks to take some account of those difficulties while still recognizing and speaking to the deterrent imperatives that this sentence must meet.
11In the end, however, for the reasons set out in this lengthy decision, I have concluded that most, even if not all, of Mr. Simpson’s sentence must be served in custody. I reach that conclusion given that the gravamen of the offences calls first and foremost for a strong message of denunciation and deterrence to others, and also, most importantly, to properly respect and apply the principle of proportionality.
12In the result, Mr. Simpson will be sentenced to a global custodial sentence of two years less a day, eighteen-months concurrent for both the accessing and possession of child pornography offences, to be served at the OCI in Brampton if possible, plus a six month strict house arrest conditional sentence as described in the terms set out at the end of these reasons, imposed separately within the sentence duration of two years less a day, to then be followed by a three-year period of probation. All of the ancillary orders are granted.
Circumstances of the Offences
13On October 3, 2018, officers of the Toronto Police Service executed a search warrant at residential unit #618 at 16 Dallimore Circle in Toronto. They were acting on information that a user of the so called “peer-to-peer” software, “Shareaza”, had downloaded and uploaded numerous files containing child pornography (sometimes “CP”) from an Internet Protocol (“IP”) address associated with that residence.
14Ryan Simpson, the offender, answered the door when the police knocked at approximately 0618 hours to execute the warrant. Nine police officers entered the apartment that he shared with his wife, Ms. Nora Simpson. Within 15 minutes, after searching a home office/computer room, police found an HP desktop computer S/N USC 3160970 (Property Tag # 6585346), among a number of other electronic devices.
15They seized that single computer after initial examination on scene by Detective Constable Saini, an expert forensic police officer, confirmed that it contained a significant amount of child pornography locate in two hard drives. As a result, Mr. Simpson was charged with the offences set out above, and he was convicted of those offences in December of 2020.
16Later forensic examination revealed that the collection of child pornography consisted of 996 child pornography images and 852 child pornography movies. This collection, which was in the possession of the offender, contains predominantly images of female children. It exhibits the following kinds of sexual abuse: (i) male adults sexually abusing children; (ii) female adults sexually abusing children; (iii) children sexually abusing other children; (iv) bestiality; and (v) anal and vaginal insertions of objects into female children.
17I was provided with a memory key containing a representative sample of the child pornography that had been seized from this offender’s computer and a printed listing of those same representative images and videos containing unvarnished verbal descriptions of the full gamut of sexual abuse perpetrated against the children that was captured in the still images and video files. I was unable to view the contents of the representative sample compiled by D.C. Davies, the Officer in Charge in this case, because of insurmountable technical problems.
18However, the verbal descriptions of the various acts of sexual abuse that are recorded in those files has permitted me to fully understand the nature of the child pornography seized from this offender. The descriptions are detailed, vivid and vile: they include references to a 2017 video depicting a 10 year old girl receiving a “very brutal copulation”, a 2014 video of “hot 9-yr [old] April daddy super suck with sperm birthday gift”, and finally, almost incomprehensible, a video entitled “My 3 [year old] daughter getting anal enhanced.” Referring to just those three of the video titles conveys the predatory, graphic, perverse and abusive content of the material seized from the offender’s computer hard drives, material that certainly falls within the statutory definition of child pornography in s. 163 of the Code.
Circumstances of the Offender, his Family, and Victim Impact of these Offences
(i) Circumstances of the Offender
19The offender, Ryan Simpson, was born in Toronto. He has one biological sister who is four years older than him. He was raised in Toronto by his biological parents. They had a lifelong marital relationship, never separated, and, for better or worse, according to his spouse, were present during his entire life. Both parents are now retired. There were no alcohol related issues in his upbringing, although his father consumed alcohol and his grandparents evidently suffered from alcohol abuse disorder. His spouse believes there was very limited discipline in his home as he grew up, none emanating from either of his parents. As a result of Mr. Simpson’s previously happy-go-lucky demeanour, she suggests his mind would not have perceived the harm he was causing by passively viewing vile images of child pornography. He previously had little or no understanding of the consequential harm caused by his actions.
20The offender cannot recall any significant trauma that has consciously impacted his behaviour or emotionality at any point in time in his life: no domestic violence, emotional or sexual abuse within his family. Privileges would be taken from him at times, as quite light punishment for misdeeds. Mr. Simpson has always maintained a close relationship with his parents. And why not? They rarely admonished him for any aspects of his behaviour.
21Mr. Simpson met his wife, Ms. Nora Simpson on a dating website in 2008. Although 37 years old at the time, he still lived with his mother. He continued to live with her until he married Ms. Simpson in September 2011. After their marriage, they purchased the apartment where they have lived for the past ten years. The medical and related circumstances relevant to Ms. Nora Simpson are detailed in the next section of these reasons.
22Mr. Simpson was compliant during his arrest, and within minutes of the police arriving took responsibility for the computer hardware that was seized from his residence and the contents of those devices. Because of the size of the collection, the investigative officer, D.C. Davies recommended a “period of incarceration including significant psychological intervention.”
23The Pre-Sentence Report (“PSR”) states unequivocally that the offender takes full responsibility for these offences. The author states that Mr. Simpson acknowledged and confessed to his failings. The PSR author observed and noted that Mr. Simpson became visibly and genuinely upset upon reflection that before his arrest, he had failed to consider either the impact of his conduct on the victims of child pornography, or the impact of his conduct on the members of his family.
24Mr. Simpson began watching pornography as a teenager and began viewing child pornography as “a curiosity” in his twenties. Based upon this acknowledgement and his age, the offender may have had some level of interest in both adult and child pornography for the better part of twenty years, but there was no definitive evidence of that timeframe or of preferences or fetishism of any nature.
25The offender acknowledged that before these charges arose, he viewed pornography while he masturbated approximately once a week. He has never paid for or had casual sex. The offender advised that he generally has no contact with children or young persons in any capacity on a day-to-day basis.
26The PSR author acknowledged having received and reviewed documentation that Mr. Simpson attended a Clinical Risk Assessment completed by Dr. Monika Kalia, on July 5, 2019, as well as 14 hours of individual sex-offence specific counselling sessions with registered psychotherapist Ms. Shiksha Harish from March 2019 to October 2019. These are referenced further below.
27In summary, the author of the PSR regards Mr. Simpson as “a 48 year-old first time offender, who accepts responsibility for these offences and has offered a genuine statement of remorse to the court and those impacted by his actions and that shows considerable insight.” Mr. Simpson wrote that:
…Nothing can undo the pain that I have caused the people I love, my friends and my family. I now realize that the children in the pictures and videos also suffer every time these files are transferred and each and every time that they are viewed. I was not thinking this would be of harm to anyone, especially the children or my wife Nora.5
28I accept that these remarks are genuine and brought about by a sincere effort on the part of the offender, not only to understand his behaviour, but also to ensure it does not continue in the future. I find that the remedial and rehabilitative steps taken by Mr. Simpson, long before the trial began in this matter, do provide comfort to me, and support the veracity and reliability of his remorse and acceptance of responsibility.
29Mr. Simpson was assessed on July 5, 2019, by Dr. Kalia, a Clinical & Forensic Psychologist registered with the College of Psychologists of Ontario. Dr. Kalia authored a report concerning her psychosexual risk assessment of Mr. Simpson based on interviews and test data collected over a period of 10 hours on February 23, March 2, 16, and 30, 2019. The report noted:
Mr. Simpson said he has been attending counselling to address the factors that led to his offending. He noted that counselling has helped him to gain a new perspective and understand his thinking errors. Elaborating he said, in the past, he allowed himself to view child pornography as he believed that his actions were not affecting anybody else. He told himself that the child in the images has already been abused and he was just watching it and not directly involved or responsible for it. However, he stated that he has now realized that viewing child pornography is not a harmless activity. He added that sharing child pornography on the internet with others perpetuates the abuse of the children involved in these acts. He told me that he has worked on his cycle of offending and relapse prevention plan. He has plans to follow-up counselling in the future also.6
30Dr. Kalia also noted the contents of a report from Ms. Harish, a Psychotherapist in forensic practice, who Mr. Simpson has engaged upon the recommendation of legal counsel to counsel him and provide therapy on multiple aspects of his behaviour. Amongst the wide variety of topics stipulated to have been covered are the following: (i) cognitive distortions and child pornography; (ii) healthy boundaries and relationships; (iii) sexual abuse and impact on minors; (iv) empathy and victim impact statements; (v) cycle of the offence; (vi) compulsive use of pornography and sexuality; and finally (vii) fantasy management. In her report based upon the 10 hours of individual counselling that Mr. Simpson attended with Ms. Harish, Dr. Kalia expresses her opinion as follows:7
Mr. Simpson has a good understanding of fantasy management strategies. He is very well aware of his triggers and has a good relapse prevention plan. He is expected to use the skills he acquired in counselling to not make any unhealthy choices. He expressed his interest to continue counselling sessions with me. His motivation to comply, his stable behavioral history, along with reasonably low stress environment and excellent support from his wife, are favorable prognostic signs for risk management in the community setting.
31I was surprised that Crown counsel seemed to question the reliability or accuracy of these test results and suggest that I should place little weight on the medical reports on the basis that defence counsel did not actually call the expert witnesses to testify at this sentencing hearing. However, the expert reports were all filed in accordance with the Rules. In my view, Mr. Fox fairly responded that Crown counsel had the option of requesting that the expert witnesses be produced for cross‑examination on their medical reports, but neither did so nor did he ever suggest that the medical report was not fully accepted.
32Based on all the factors and a consideration of various phallometric and other test scores, these professionals have determined that in their professional judgment, Mr. Simpson’s risk of re-offending is in the low range. Dr. Kalia concluded her report as follows:
Overall, with treatment, Mr. Simpson is likely to abide by the law and not gravitate to looking at child pornography again. Judging from his motivation and willingness for counselling, I am confident that he will use the knowledge and skills acquired in counselling to make healthy choices in the future. Out of an abundance of caution, he should not have unsupervised contact with children unless an adult is accompanying him.8
33In my view, there was no reasonable foundation for the reports being called into question for the first time at this sentencing hearing. Crown counsel gave no notice that he was going to argue that the results of the experts’ testing, or the opinions they have expressed, should either be called into question or not be accepted. It is plain on the extensive evidence filed that the experts retained to assess Mr. Simpson have concluded that his risk to reoffend is low. The medical reports are before me and, at least in my judgment, they do provide a legitimate assessment of this man's risk to reoffend. In the absence of evidence that undermines those conclusions by anything other than anecdote, I do accept and find as a fact that Mr. Simpson’s recidivism risk is low.
34Finally, in relation to the circumstances of the offender, I note that Mr. Simpson wrote a letter to me in which he expressed deep concern about the health and well-being of his family if he were to be sentenced to a period of incarceration. He explains:
I would be willing to do anything that would please the court on a conditional sentencing [sic] to avoid a prison sentence. I am willing to be completely transparent and would welcome my personal computers being monitored and open to authorities to having access to check in. I believe additional counselling would be more beneficial to both myself and society than a prison sentence…9
35The steps taken by Mr. Simpson do reflect a genuine desire to eliminate his offending behaviour from his life. He was under no legal obligation to seek counselling or to undergo those risk assessment tests but he plainly did so in order to provide evidence that the court could rely upon in confidence that his offending conduct would not happen again. These sessions commenced and took place long before his trial and are continuing. This is part of Mr. Simpson’s acceptance of responsibility that must be factored into determining an appropriate sentence in this case.
(ii) Impact of these Crimes on the Victims
36Two Victim Impact Statements and a Community Impact statement were prepared for this hearing and provided to me by Ms. Monique St. Germain. She has been General Counsel for the Canadian Centre for Child Protection Inc. (“Canadian Centre”) since May 2010. In that capacity, Ms. St. Germain is responsible for providing legal guidance on all material aspects of the Canadian Centre's programs and services. She is actively involved in ongoing initiatives that involve survivors of child sexual abuse material. In that capacity, she also deals with lawyers who represent child abuse victims, and through them, is able to obtain victim impact information from individuals who have been sexually abused, and whose sexual abuse has been recorded and disseminated as child pornography.
37The Canadian Centre is a registered Canadian charity located in Winnipeg that provides programs and services to the Canadian public aimed at reducing all forms of child victimization, including the victimization caused by the creation, distribution and viewing of child sexual abuse material (“CSAM”). The terminology for CSAM in section 163.1 of the Criminal Code, and which I use in these reasons, is “child pornography”.
38Two victim impact statements were filed in this proceeding: one by “Lily” and another by “Amy”. Those names are pseudonyms to protect their identity and privacy. Both of these women are now adults but they were victimized as children, not only by the sexual abuse they suffered, but as well through the creation, dissemination and viewing of child pornography that displayed that abuse.
39Ms. St. Germain has personally met both “Lily” and “Amy”. Their video recorded and transcribed Victim Impact Statements have been accepted for the truth of their contents in court proceedings like this, in both Canada and the United States.10 These statements are properly evidence on this sentencing proceeding, on their own and representative of other victims, because at least one image or video of both “Lily” and “Amy” were found in this offender’s possession.
40What is so striking about these crimes compared to many others, including the actual sexual abuse these children suffered, is that their knowledge of the potential broadcasting of images of the abuse they endured will cause them to relive that pain every day for the remainder of their lives, because the images of their abuse will continue to be available on the internet in perpetuity.
41Several direct quotations extracted from the Affidavits of “Amy” and “Lily” make the point with searing clarity. In her statement “Amy” states:
I am a survivor of child sexual abuse and internet child sex abuse images….There is a lot I don't remember, but the disgusting images of what happened to me are out there on the internet today.
It is hard to describe what it feels like to know that at any moment, anywhere, someone will be looking at my pictures of me as a child being sexually abused and getting sick gratification from it. It's like I am abused over and over and over again
I want every person who downloads my pictures to be punished. Why should they be free when I am not? They are as bad as my abuser. Child pornography is not a victimless crime. I am a victim. And I still suffer every day and every time someone sees me being abused.
42In sentencing this offender, Amy asks me to think about her and the abuse she and others endured to create these pornographic images. She asks me to “give this person a sentence that will make him realize the harm he caused me from taking pleasure in my pain.”
43“Lily’s” experience is similar. She lives everyday with the horrible knowledge that many people somewhere are watching the most terrifying moments of her life, and taking grotesque pleasure in them, and that her continuing exploitation will be never-ending. The people who trade and share videos of her as a little girl being sadistically raped by her biological father are being entertained by her shame and pain:
It sickens me to the core, terrifies me and makes me want to cry. So many nights I have cried myself to sleep thinking of a stranger somewhere staring at their computer with images of a naked me on the screen. I have nightmares about it often. I can never feel safe so long as my images are out there.
I also have a constant fear for my children's safety as pedophiles have continued to stalk me over social media and have hacked into my Facebook and Instagram account to steal pictures of what I look like now to post on their own anonymous forums. They successfully discovered and posted on one of those forums a former address of ours, so we moved and I shut down my social media accounts. This was a loss for me because it limits me socially. It also made me feel incredibly violated and sick to my stomach for weeks.
I want you to know that dealing with the effects of the stress of random men looking at pictures of my sex abuse as a child is like a fulltime job, and it wears me down and colours every aspect of my life. Please think of me and what I am going through and the other survivors of this exploitation as well.
44Before concluding this section, I wish to note the observations of defence counsel relative to “Amy’s” and “Lily’s” courageous statements and his suggestion of what their positions would be on this sentencing if they were present. He observed that while Amy’s statement pleads for the offender to be punished appropriately, her statement is not one of bloodlust or seeking vengeance. As such, he submitted that an appropriately fashioned sentence can serve the principles of deterrence, denunciation and retribution while also not causing additional harm in the process.
45Defence counsel recognizes that I am obligated to consider what victims of childhood sexual abuse have endured, but he emphasized that his advocacy for a conditional sentence should not be construed as an attempt to diminish the suffering of those affected. While he acknowledges that no sentence can undo the harm suffered, he asks me to be mindful, not only of the individualized nature of the process, but also that the sentence imposed must give appropriate weight to the personal circumstances of the offender.
(iii) Circumstances of the Offender’s Family
46What is said to be unique to this case, and the foundation for the defence position, is Ms. Nora Simpson’s extensive genetic, medical and psychological afflictions. They are evidenced in the extensive reports and professional opinions that have been gathered in relation to the offender’s spouse, and they inform the defence position that a custodial sentence would have a serious and disproportionate impact, not on the offender himself, but on her health and wellbeing. In light of this position, I have reviewed the third party evidence relating to Ms. Simpson, and a letter that she has written to me, of which both counsel are aware.
47From Ms. Simpson’s perspective, she and the offender had a wonderful relationship until he was charged with these offences on October 3, 2018. Only then did she learn that he began viewing pornographic material in his twenties while still living in his family residence. She was not aware that her husband was viewing illicit internet content. She believes he was viewing this material through the night, once she went to sleep.
48Defence counsel claims that Ms. Simpson’s state of health and the role the offender has played in caring for her is an important mitigating factor in this case. Past events, both distant and recent, including the loss of her father in 2001, and her younger brother in 2017, created an unstable daily stress situation for Ms. Simpson. She was taking prescribed anti-depressant medication daily. However, her prognosis is complicated by indications of liver failure caused by lengthy use of those medications. Her condition was worsened by a severe case of measles. That required that she immediately discontinue all other medications, which resulted in emotional instability, including a nervous breakdown in 2020.
49The severity of these physical and mental health challenges has required that Ms. Simpson take leave from her place of employment at an international telecom company for the past eighteen months. She now receives only long-term disability payments. She desperately wishes to escape these legal circumstances that affect every day of her and Mr. Simpson’s lives.
50The evidence shows, and I find, that Ms. Simpson’s medical and psychological needs are neither illusory nor contrived. Apart from her genetic traits, which cause her to suffer from Turner’s Syndrome, she has been diagnosed with Obsessive Compulsive Disorder (OCD) and the current COVID-19 pandemic has heightened those obsessive behavioural traits and characteristics.
51Since the sentencing hearing was held on July 12, I received a personal letter from Ms. Simpson addressed to me and Crown counsel, in which she implores me to save the offender, and more importantly her, from what she says would be the devastating impact of a custodial sentence.
52I have reproduced and comment here on some portions of that letter, but it is largely anecdotal and hearsay relating to private matters that are of no evidential value. Ms. Simpson commences by stating her belief that Mr. Simpson should be appropriately punished, but that she does not believe that incarceration is the appropriate sentence in this case. She has been insistent that he continue to get help for his issues and that they undergo marriage counselling together.
53Ms. Simpson says she has endured a mental breakdown, lost pay and bonus pay, been forced to receive only long-term disability payments, has no other sources of support and has experienced three years of immeasurable suffering awaiting the outcome of this case. While she acknowledges that help for mental health issues and other sources of support would be widely available in the community if Mr. Simpson were ordered to serve his sentence in custody, as Crown counsel noted, she pleads that those resources are not cheap, and are beyond her current financial means.
54In one paragraph of her letter, Ms. Simpson compares her circumstances to those of the victims of child pornography, but she vehemently rejects that her plight is merely “collateral damage” arising from her husband’s potential imprisonment:
I refuse to accept that. I hope these devasted children are resilient, and can get help and recover from the incredibly traumatic experiences and atrocities against them. They are young and have their whole life ahead of them to bounce back and thrive. I turn 50 next year. I am not as resilient. I have never lived alone. We require two incomes to live. I have osteoporosis and am unable to do groceries on my own or go to our storage unit in our condo to retrieve items. If it seems like I am making it look like a doomsday situation, it is because it really is for me. So many lives have already been devastated. Do you really need to ruin mine as well? [Emphasis added.]
55For the record, I feel the need to address the unfortunate misapprehensions expressed in parts of Ms. Simpson’s letter. Were it not for the fact that her letter is entirely self-focused, and that her afflictions at least provide an explanation for that inward perspective, it would be hard to understand her complete misunderstanding of the effects of these crimes on their victims, effects that are not swept away by the passage of time.
56Ms. Simpson expresses her hope that “these devastated children are resilient.” She hopes they can get help and recover from the atrocities that were committed against them. I share that hope. However, in suggesting that unlike her, the victims are young and have their whole life ahead of them to bounce back and thrive, Ms. Simpson exhibits a profound lack of understanding of the horrific aftermaths faced by victims of sexual abuse, whose physical abuse has been recorded and disseminated to be viewed for the gratuitous pleasure of people like her husband.
57The victim impact statements and all of the relevant research and data shows that the children whose abuse feeds the child porn industry do indeed have their whole lives ahead of them, but it is not positive; rather, they live with the horror they endured. They do not bounce back and thrive. They are not “resilient.”
58However, I hope I can be forgiven for admonishing her for these distorted and unrealistic perceptions. It is perhaps not surprising that Ms. Simpson can only focus on her own circumstances, because I also know that she lives with her afflictions every day. I believe she cannot ever fully comprehend the depravity of these crimes because they are too remote, and because her own real problems occupy her attention.
59In any event, that is not the point. The sole legal and factual question posed by her admittedly difficult circumstances that is relevant on this sentencing hearing is whether they are truly extraordinary and unique, to the extent that it may significantly affect the determination of an appropriate sentence in this case.
60In summary, Ms. Simpson states that the offender is her “life” and that she “cannot survive without him.”11 She desperately implores me to consider a conditional sentence, because with all of her afflictions, she needs him to help her every day and does not know how she can survive without him.
61Ms. Simpson’s significant underlying medical circumstances are outlined in extensive medical records filed as exhibits. Her long time treating physician for 17 years, Dr. Baghdadlian, certainly has expert qualifications to opine on her circumstances, and prepared a lengthy letter outlining her medical issues. This also has been made an Exhibit.
62In summary, Dr. Baghdadlian confirms that Ms. Simpson suffers from the genetic condition known as Turner’s Syndrome, a condition that affects only females, and that results when one of the “X” sex chromosomes is missing or partially missing. Such persons are genetically regarded as “inter-sex”, that is, not perfectly female, but not male either. The condition causes a variety of lifelong medical and developmental problems, including short height, failure of the ovaries to develop, heart defects, and a weakened immune system creating risks of other afflictions. Ms. Simpson did not experience a normal puberty12, and her diminutive stature has caused her to suffer from overwhelming anxiety and self-esteem issues. As a result, she “has always needed someone to depend on and to stabilize her life and emotions.”13
63Dr. Baghdadlian explained that Ms. Simpson was “amazingly and genuinely happy” after she and the offender were married in 2011, but has observed that the events of this case have resulted in her experiencing significant medical and psychiatric setbacks. These include (i) elevated liver enzyme levels, (ii) being diagnosed with a very serious and potentially life threatening condition known as “vanishing bile duct syndrome” which requires that she stop taking anti-depressant medication, and (iii) psychiatric illness that has resulted in the total loss of her career. Moreover, as a result of her having become housebound, Dr. Baghdadlian has expressed his significant concern for her own personal safety. In his view, it is clear that the offender has had an “incalculable positive effect on her, more than any anti-depressant can ever have.”14
64The doctor concluded his opinion letter with the following warning:
It is my firm belief that removing her husband from her life even temporarily will undoubtedly be devastating for her. I genuinely fear for what will happen to her emotionally and given the constraints under which we are currently treating her I don’t know how we will be able to console her. Her husband remains an absolute and effectively her sole significant support for her and in her current fragile emotional state she will undoubtedly collapse without his presence and constant emotional support.15 [Emphasis added.]
65To conclude, defence counsel asserts that Dr. Baghdadlian’s letter and the opinions it expresses provide compelling reasons to accept that a period of custodial imprisonment for this offender will have a profound and devastating negative impact on Ms. Simpson and cause her to be at risk of considerable harm. At its core, however, the question her circumstances raise is whether collateral harm that may be caused by the imposition of a sentence provides an acceptable legal basis to impose a lesser sentence, one that arguably may fail in the circumstances to meet the requirements of proportionality for the particular offences that is central to the principles of Canadian sentencing.
Position of the Parties
66Crown counsel seeks a penitentiary sentence of three and a half years. He advances a number of authorities in support of that position. He also asks for the following Ancillary Orders:
(i) an Order requiring the offender to provide a DNA sample given that s. 487.04 stipulates that offences under s. 163 are “primary designated offences”;
(ii) a lifetime SOIRA Order, which the Code stipulates is mandatory for all 3 separate charges. This follows since the child pornography offences are designated offences under s. 490.011(1)(a), and since s. 490.013(2.1) stipulates that the order is to apply for life if the person is convicted of more than one of such offences;
(iii) an Order under s. 161 (d) of the Code prohibiting this offender from using the Internet or any other digital network, unless the offender does so in accordance with conditions specifically agreed to and as set out in my reasons; and
(iv) an Order under s. 164.2 for the forfeiture of the computer hardware that was seized from the offender’s residence at the time of the execution of the search warrant on October 3, 2018.
67Defence counsel asks the court to consider a sentence of two years less a day to be served conditionally in the community under s. 742 of the Code, having regard to all of the circumstances in this case.
Constitutionality of minimum sentences in child pornography cases
68The various provisions of the Code creating the offences of possessing, accessing, distributing, and making child pornography available all include mandatory minimum sentences (“MMS”). As well, the Code contains provisions limiting the circumstances in which conditional sentences may be imposed. All have had their constitutionality called into question and have either been struck down by appellate courts in Canada, or by superior courts where appellate review will soon be forthcoming.
69In Ontario, the Court of Appeal struck down the MMS under s. 163.1(4) for possession of child pornography in R. v. John, on the basis of reasonable hypothetical situations, but upheld the 10-month sentenced imposed on that offender because of the disturbing nature of the content. While not charged in this case, the court also struck down the MMS for making child pornography under s. 163.1(2) in R. v. Joseph.16
70The Code presently provides that a conditional sentence is not available either for the offence of accessing child pornography or making it available, under ss. 163.1(4.1) and 163.1(3), respectively. In both cases, apart from the constitutionality of the MMS itself, s. 742.1(b) precluded the imposition of a custodial sentence simply because the predicate offences both presently impose a MMS. Similarly, s. 742.1(c) provided that no conditional sentence could be imposed where the maximum permissible sentence was 14 or more years of imprisonment. Once again, however, the courts have struck those limitations. In R. v. Sharma17, s. 741.2(c) was also declared unconstitutional.
71Most recently, Schreck J. struck down the MMS for s. 163.1(4.1) in R. v. Doucette.18 In that case, the accused was sentenced to six months' imprisonment after being convicted of two counts of accessing child pornography following a summary conviction trial. That sentence was the mandatory minimum penalty required by the Code. The accused’s appeal was allowed, and a sentence of four months' imprisonment was imposed, less credit for presentence custody. The court found that the MMS violated s. 12 of the Charter and was of no force or effect. It was found to be grossly disproportionate in circumstances where the accused was a first offender and had accepted responsibility for his crimes, even though the nature of the child pornography was aggravating.
72The constitutional challenge in this case posits the proposition that the MMS required by ss. 163.1(3) and (4.1) contravenes s. 7 and s. 12 of the Charter. Mr. Simpson contends that the imposition of a MMS in this case would have a disproportionate effect on himself and his family.
73Crown counsel does not assert that the decision in Doucette is “plainly wrong.” As a result, Crown and defence counsel agreed that this sentencing would proceed on the basis that the MMS are inoperative. I have instead focused on the personal circumstances of Mr. Simpson and his family to assess whether a period of imprisonment would have a disproportionate effect not only on him, but also his spouse, and whether leniency owing to those factors could result in a disproportionate result in relation to the gravamen of the offences and the responsibility of the offender.
Principles of Sentencing
74In sentencing this offender, I am guided by the fundamental purposes and objectives of sentencing that are set out in ss. 718, 718.1 and 718.2 of the Code. Generally, a fit sentence will denounce unlawful conduct and deter the offender and others. Specific deterrence may also be an important consideration in deciding what sentence to impose. In counter-balance, Parliament also included rehabilitation of the offender as a significant sentencing value.
75The principles of proportionality and sentence individualization are of particular importance in this case. A sentence must be proportionate to the offence and the degree of the offender's responsibility: it must speak out against the offence, but not exceed what is just and appropriate given the moral blameworthiness of the offender and the gravity of the offence. As well, sentencing will always remain a discretionary process specific to the offender and his or her circumstances. In R. v. Pham19, Wagner J., as he then was, writes:
7 LeBel J. explained proportionality as follows in R. v. Ipeelee, at para. 37:
Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system.... Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.
8 In addition to proportionality, the principle of parity and the correctional imperative of sentence individualization also inform the sentencing process. This Court has repeatedly emphasized the value of individualization in sentencing. Consequently, in determining what a fit sentence is, the sentencing judge should take into account any relevant aggravating or mitigating circumstances (s. 718.2(a) of the Criminal Code), as well as objective and subjective factors related to the offender's personal circumstances. [Citations omitted.]
76The sentence imposed must also be consistent with other sentences for similar offences for offenders who are similarly situated.20 General ranges of sentence have been developed to provide guidance that encourages consistency between sentencing decisions. However, R. v. Nasogaluak also shows that the breadth of the sentencing judge’s discretion is not unlimited. As a general proposition in sentencing, mitigating or aggravating factors will push a sentence up or down the scale of appropriate sentences for similar offences, but no one sentencing objective will generally take precedence over others.
77Significant and unusual factors bear on the determination of the appropriate sentence in this case, beyond the directional change advocated by the Supreme Court in sentencing for crimes against children. I have reviewed cases where a conditional sentence has been considered, what circumstances have been considered extraordinary and unique, and how that has affected the determination of sentence. The allegedly unique facts present here require me to consider what role, if any, potential serious consequences to members of the family, apart from the offender, can have on the determination of an appropriate sentence.
(i) Applicable Principles and Ranges of Sentence in Child Pornography Cases
78Despite the continuing application of the general and specific factors set out in ss. 718, 718.1 and 718.2 of the Code, sentencing in child pornography cases has progressed in a somewhat different direction. Parliament has legislated a different focus that courts must follow. For these offences, the primary sentencing considerations must be general and specific denunciation and deterrence.
79Parliament has expressed its intent that the mere fact of having perpetrated child pornography offences is a statutorily aggravating factor. Consistent with that objective, s. 718.2(a)(ii.1) requires that a sentencing court increase or reduce the sentence to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, including evidence that the offender abused a person under the age of 18 years in the course of committing the offence or offences. There is no suggestion here of the offender having directly abused victims. It is the demand to view the visual product of others perpetrating direct abuse of children that is what makes these offences grave.
80In addition, s. 718.01 explicitly requires that courts give primary consideration to the objectives of denunciation and deterrence for any offence that involves the abuse of a person under the age of 18. Parliament has also increased the minimum and maximum sentences for offences involving the sexual abuse of children. Through each of these legislative steps, Parliament has prioritized denunciation and deterrence as the most important factors in sentencing child pornographers.
81Most recently, the Supreme Court has gone considerably further. In its 2020 decision in R. v. Friesen, the court set a new tone, addressing the direct responsibility that offenders bear for the extreme psychological harm caused to the many children globally who are victimized by sexual abuse. In the opening paragraph Wagner C.J. and Rowe J. plainly but emphatically state the problem and their intent to address it with a new sentencing framework to reflect the profound wrong and harm caused to children who endure sexual offences.
82Sentencing judges may now deviate from the past range of sentences, and to some extent the court has encouraged them to do so in order to impose what will be regarded as a fit sentence in the context of today’s understanding of the crime.21 Judges have been cautioned about relying on precedents that may be “dated”, or that fail to reflect society’s current awareness of the impact of sexual abuse on children.22 The practical and inevitable consequences are set out at paras. 76 and 114 of Friesen:
76 Courts must impose sentences that are commensurate with the gravity of sexual offences against children. It is not sufficient for courts to simply state that sexual offences against children are serious. The sentence imposed must reflect the normative character of the offender’s actions and the consequential harm to children and their families, caregivers, and communities.
114 Mid-single digit penitentiary terms for sexual offences against children are normal and upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. [Emphasis added.]
83Friesen involved actual physical abuse of children but the Court of Appeal has recognized in R v. Inksetter that the same principles apply to child pornography crimes, after taking account of different factual aspects. Not only must the focus in sentencing child pornography offenders be deterrence and denunciation, but considerations of rehabilitation cannot be permitted to take precedence over those other two paramount sentencing purposes.
84In Inksetter, the offender was convicted of possession of child pornography and making child pornography available. Mr. Inksetter’s collection was more than ten times the size of Mr. Simpson’s, consisting of 28,052 unique images and 1,144 unique videos. Moreover, the evidence of the investigating detective established that it was simply horrific, including images of explicit sexual activity involving children as young as one-year old.23
85The Crown in that case advanced an applicable range of sentence of three to five years of imprisonment, and sought a sentence of four and one-half years of imprisonment as appropriate in the circumstances. Defence counsel argued that the applicable range for possession of child pornography was nine months to four years, and sought a one year term of imprisonment on each count, with the two terms to run concurrently, followed by a period of probation of between 18 and 24 months. The trial judge categorized the offences as “amongst the most serious circumstances of the offence of possession of child pornography” that he had ever encountered, but he imposed only a reformatory sentence, on the basis that it permitted him to include a period of probation, thus imposing a longer period of state supervision than would otherwise have been available.
86Hoy A.C.J.O. found that the trial judge erred by putting a misplaced emphasis on rehabilitation. She found that to be a relic from past times, when child pornography offences were wrongly considered to be victimless. In his focus on probation, the trial judge erred because he gave primary effect to the objective of rehabilitation, rather than the objectives of denunciation and general deterrence. In the court’s view, that error in principle resulted in the imposition of a shorter term of imprisonment than the trial judge acknowledged he would have otherwise imposed.24
87The correct focus needed to be on the extensive damage already done to the victims of the crime. Denunciation and deterrence are paramount objectives for these offences. The court agreed with the trial judge’s conclusion that the objectives of specific deterrence and rehabilitation of Mr. Inksetter had largely been met before sentencing, but found it was an error in principle to impose a sentence of two years less a day in order to allow for a lengthy period of probation. Instead, having regard to the circumstances of the offence and the offender, a global sentence of three and one half years’ imprisonment was called for to satisfy the objectives of denunciation and general deterrence.
88Against that background, I begin by reminding myself of the Supreme Court’s cautionary guidance in R. v. Lacasse25 that sentence ranges are for guidance only, and cannot displace judicial discretion in the sentencing process:
57 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.
89While the “new normal” philosophical framework within which judges must now craft sentences for child pornography offences may be moving in an upward direction, the fact remains that the range of sentences that has been imposed is broad. It is noteworthy that in Friesen, the Supreme Court specifically declined the Crown’s invitation to set ranges of sentence for sexual offences against children26, concluding that the appropriate length and the setting of sentencing ranges should remain the task of provincial appellate courts.
90What is certain, however, is that sentences for sexual offences involving children must reflect current legislative intent and today’s understanding of the profound harm that sexual violence causes against children. An increase in sentencing ranges may be necessary to reflect society’s changing views on the gravamen of these crimes, and what sentences will be considered proportionate.
(ii) Are Conditional or Blended Sentences Available in Child Pornography Cases
91Defence counsel in this case advocates for a conditional sentence of two years less a day to be imposed together with a three-year period of probation. There are at least a dozen decisions that I was referred to that have considered the availability of a conditional sentence, and that show that there are circumstances where a conditional sentence may be a fit and appropriate sentence for child pornography offences. Not surprisingly, apart from meeting the statutory requirements, what seems to determine whether the sentence was granted were factors like the age and state of health of the offender, whether he accepted responsibility and showed genuine remorse, the size of the collection, whether the offender simply possessed it or also distributed it, or made it available, as well as other individual and particular factors.
92The Supreme Court recognized in R. v. Proulx27 that it was Parliament’s clear intent, in enacting s. 742.1 of the Code in 1996, that certain offenders who previously would have served a prison sentence should now be able to serve their sentence in the community. An offender who meets the statutory criteria will serve their sentence under strict surveillance in the community instead of going to prison. It is not intended to be a “Get out of Jail Free” card. Instead, the offender’s liberty must be constrained by the conditions attached to the sentence. If the offender breaches any of those conditions, they are to be brought back before a judge who may order them to serve the remainder of the sentence in jail. Parliament envisaged the need for a real threat of incarceration in order to increase compliance with the conditions imposed.
93Five criteria must be considered before a Conditional Sentence Order (“CSO”) may be imposed. The offence in question must be (i) statutorily eligible for a conditional sentence, and (ii) the sentence imposed must be less than two years. Offences punishable by a minimum term of imprisonment are not eligible. Importantly, the conditional sentence imposed must be (iii) consistent with the fundamental purpose and principles of sentencing described in ss. 718 to 718.2, and (iv) a judge proposing to impose a CSO must be satisfied that public safety would not be endangered if the offender were to serve the sentence in the community. The ultimate determining question, assuming the other criteria are met, is (v) whether the imposition of a conditional sentence would be “appropriate” or “fit” in all of the circumstances.28
94In R. v. Dawkins29, the offender was convicted of possession of child pornography that included videos of adult males having sexual intercourse with young girls, but he had deleted the pornography after viewing, making it impossible to assess the amount he had seen. He had also accessed child pornography in a way that made it available to others although, unlike here, Crown counsel elected not to proceed with the charge of making child pornography available, although it was agreed that those facts should be taken into consideration. The quantity was believed to be small. He pleaded guilty, had no prior record, and had repeatedly expressed remorse. He had commenced working with a psychologist, but had not offended further and did not pose a hands-on risk to children. Even so, however, Harris J. imposed a nine-month sentence with three years of probation, finding that neither a conditional nor an intermittent sentence were consistent with the fundamental purposes and objective of sentencing in child pornography cases.
95In contrast, in R. v. Swaby30, the B.C. Court of Appeal upheld a conditional sentence for possession of child pornography, despite an extensive and horrific collection. It followed a determination of reduced moral culpability in circumstances where the 28 year old offender had very serious cognitive impairment issues, as well as other mental health problems, including auditory hallucinations. It was only that finding of reduced level of culpability, combined with the seriousness and significance of Mr. Swaby's impairments, that permitted the court to justify a CSO as a fit and proportionate sentence in the circumstances.
96A conditional sentence of 15-months for the possession of a huge amount of child pornography was also imposed by D.E. Harris J. of this court in R. v. Rytel31, but like in Swaby, the offender in Rytel had significant cognitive and social impairments which the court called the “substantial cause” of his offence and substantially diminished his moral blameworthiness. The offender had a long and sad psychiatric history. In those circumstances, the court referred to Doherty J.A.’s comments in R. v. Hamilton32 on the problem of competing imperatives that underlie the determination of a proportionate sentence in these kinds of circumstances:
93 Fixing a sentence that is consistent with s. 718.1 is particularly difficult where the gravity of the offence points strongly in one sentencing direction and the culpability of the individual offender points strongly in a very different sentencing direction. The sentencing judge must fashion a disposition from among the limited options available, which take both sides of the proportionality inquiry into account.
97Importantly, in my view, both Swaby and Rytel were cases where the imposition of a conditional sentence resulted from medical and psychiatric attributes of the offender himself, circumstances that reduced his own moral culpability.
98The Alberta decision in R. v. Singh33 displays some similarities to this in that the court took the offender’s personal circumstances into account significantly when imposing a sentence. The defence had argued for a conditional sentence on a conviction of possession of child pornography. The problem was the accused was a foreign national, and depending on his sentence, could be subjected to a removal order, which would throw his family into chaos. The question revolved around his ability to appeal: if he were sentenced to less than six months in custody, he could appeal any removal ordered by the minister—if sentenced for more than six months, he lost the ability to appeal. In the result, even in those circumstances the court refused to impose the conditional sentence the defence sought, but instead sentenced the offender to six months less a day in light of his personal circumstances.
99The Alberta Provincial Court considered a conditional sentence for a child pornography offence (possession, combined with breach of recognizance) in R. v. King34, but ultimately decided against it, citing the recent legislative changes that have increased the importance of denunciation and deterrence to sentencing for such offences. However, the decision does speak to the continuing availability of a conditional sentence, in relation to and following Friesen:
I wish to be clear: I am not saying that a CSO is never an appropriate sentence for possession of child pornography; such a statement would constitute an error in law. An example of a CSO being imposed for a charge of possession of child pornography, with the learned sentencing judge specifically considering the decision in R. v. Friesen, supra, is R. v. Nepon, 2020 MBPC 48 (Man. Prov. Ct.). The sentencing principles to be applied remain constant; it is varying circumstances amongst the cases, which cause differing sentencing outcomes.35
100In R. v. Nepon, referenced in King, the Manitoba provincial court was faced with an offender, who like these others, had very serious personal cognitive and medical disabilities. Mr. Nepon had essentially been congenitally blind since birth. The court imposed a 12-month CSO followed by two years of supervised probation, but the compelling reason was the virtual impossibility of the offender being physically capable of navigating a custodial sentence within a correctional facility.
101Returning to the Ontario Court of Justice, in R. v. Woolf36, decided after Inksetter, and involving the relatively limited quantity of some 65 images of child pornography, Pringle J. refused to impose a conditional sentence for possession of child pornography. She considered a conditional sentence to be inappropriate, but did impose an intermittent sentence of 90 days to be served on weekends, on the basis that some kind of incarceration was necessary to meet the paramount objectives of deterrence and denunciation.37 At paras. 26-27 she explains:
26 The evidence has convinced me that Mr. Woolf has rehabilitated himself and does not need to be specifically deterred by any sentence. His personal lesson has been learned. He has no prior criminal record and has been successfully on bail without breach for over one year. I also find that his offending was not connected to any sexual interest in children, but rather the product of his sexual addiction and risk-taking sexual behaviour in particular.
27 But our Court of Appeal has instructed me that it is an unusual circumstance where child pornography offences would not be met by incarceration. I could not reconcile the factual details of his criminal offending with the need to impose an exemplary sentence and to denounce this specific type of conduct. The facts in Mr. Woolf's case, including his medical and psychiatric issues, differ greatly from those established in R. v. Swaby.
102R. v. Jongsma38 is an important recent decision of this court relative to the availability of conditional sentences in child pornography cases because it was decided since, and specifically considers, Friesen. There, Ducharme J. considers whether and in what circumstances a conditional sentence could be appropriate for possession of child pornography, while acknowledging at the outset that in light of the call in Friesen for increased sentences, in the ordinary case, a first-time offender pleading guilty to this offence would receive a custodial disposition from eight to ten months.
103However, even post-Friesen it remains necessary to acknowledge and deal with the individual circumstances of individual cases, especially when they deviate from so-called “ordinary cases.” Mr. Jongsma was not ordinary. He was a victim of childhood sexual abuse for many years, a fact that Ducharme J. found was causally linked to his offences. At paras. 72-73, the court notes:
72 I appreciate that Friesen makes clear that pre-Friesen authority must be used cautiously. But I would note that in R. v. Proulx, at para. 22, the Court recognized that conditional sentences are punitive sanctions capable of achieving the objectives of denunciation and deterrence and that they may be considered even where a sentence meeting those objectives is required. Thus, there are child pornography cases in which a conditional sentence has been found to be sufficiently denunciatory and appropriate in the circumstances.
73 However, more recently, the courts have expressed a greater reluctance to impose conditional sentences in child pornography cases. In the rare cases where this has been done, the person being sentenced is suffering from a mental illness or intellectual deficit. I would not equate Mr. Jongsma’s addiction to these instances of mental illness. However, as should be clear from the foregoing, I find the fact that he was a victim of sexual abuse as a child does make his case significantly different. [Citations omitted.]
104Having found that Mr. Jongsma posed no danger to children, had successfully dealt with his addiction to crystal meth, and continued to benefit from therapy both with respect to the abuse he suffered as a child and the nature of his offences, Ducharme J. determined that a conditional sentence was appropriate in that particular case.
105Crown counsel advanced three very recent decisions at the July 12 sentencing hearing in support of his position: R. v. Rule39, R. v. Murty40, and R. v. Walker41. I conclude this section by referring to these cases because, apart from Jongsma, above, they provide some of the most recent insight into judicial thinking on conditional sentences in child pornography cases in this province decided since Friesen and Inksetter.
106In Rule, the judge concluded that a conditional sentence would be unfit despite the presence of medically based and family related mitigation factors. Mr. Rule had collected more than 100,000 images and videos of children being sexually abused and exploited, including images of graphic sexual activity. It was estimated that he collected the material for five years. This is obviously more aggravating than Mr. Simpson’s collection.
107However, Mr. Rule was also 70 years old, had no prior record, and had rectal cancer, COPD and a pulmonary embolism. The Crown sought a sentence of 18 to 24 months' imprisonment and three years' probation while the defence advocated those “extraordinary factors”, calling for a conditional sentence and probation. Baxter J. disagreed and imposed a sentence of 22 months jail and three years probation. The court did not feel the rectal cancer was a basis for a conditional sentence, because it was actually in remission. While Mr. Rule was the primary care giver for his 90-year old mother, Baxter J. made the point of saying at paragraph 53 that the other members of his family should be able to assist while Mr. Rule was incarcerated. At para. 57, the judge explained why a conditional sentence was inappropriate:
57 Here, the offenses are very serious. The aggravating factors are significant. The fundamental principle of proportionality is paramount. In this case, I find a conditional sentence for Mr. Rule would offend the proportionality principle given the current, binding jurisprudence and the requirements set out in the Criminal Code. While I certainly empathize with Mr. Rule's personal circumstances, I am not satisfied they amount to extraordinary circumstances when one examines the jurisprudence that addressed granting conditional sentences for these offenses since Friesen. Nor would a conditional sentence in this case be a fit and proper sentence considering the nature of the offenses committed here, the recent jurisprudence, and the aggravating factors I have identified.
108Similarly, in R. v. Murty42, Kelly J. declined a conditional sentence and instead imposed a sentence of three years for the offender’s guilty plea to counts of possession and making CP available. Crown Counsel sought a 3-year sentence, while counsel for Mr. Murty asked the court to impose a sentence of 18 months in custody, in either case, less time served. Important mitigating factors were the offender’s serious life-long mental health issues partly derived from his parents’ rejection of his sexuality, numerous medical problems, and having tried to take his own life three times.
109Mr. Murty’s collection included 1,349 unique images and 819 unique videos of child pornography, consisting almost entirely of boys under the age of 12 to 13 with an emphasis on babies and toddlers. The videos and images involved anal and oral sex between adults and other children. Notably, Dr. Pierce of CAMH considered Mr. Murty to be at “moderate risk of re-offending”.
110The sentencing judge specifically referenced R. v. Priest43, where the Court of Appeal confirmed the established principle that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence. Nevertheless, Kelly J. found herself unable to reconcile a shorter or conditional sentence with the principles of deterrence and denunciation articulated in Friesen.44
111Defence counsel here endeavours to distinguish Murty on the basis that Mr. Murty actively and specifically shared his child pornography collection directly with another person, that being an undercover officer. The evidence showed he was a person who was desirous of sharing his collection with others. I agree with counsel that those aspects of his circumstances called for a stiffer sentence than should apply in this case.
112In Walker, the offender was 46 years old, and, like here, was found guilty of accessing, possessing and making child pornography available, albeit in much smaller quantities than in Mr. Simpson’s circumstances: 43 videos and 17 images. All of the videos and 3 of the 17 images were accessible to anyone through the Shareaza file-sharing platform on Mr. Walker's computer, the same platform used by Mr. Simpson. Once available through Shareaza, the videos or images can be saved and viewed innumerable times for an indefinite period. In that case, Crown counsel sought a period of incarceration of 2.5 to 3 years, with ancillary orders, while defence counsel sought a conditional sentence of two years less a day, with ancillary orders that contained shorter terms of restriction.
113In relation to Mr. Walker’s claim that he was not likely to reoffend, he provided a risk assessment questionnaire filled out on his behalf by his counsel, a guide to the questionnaire, and three learned journal articles45. However, the court found that the questionnaire and academic articles were of no assistance because they did not address the specific offender’s risk of re-offending. The court imposed a period of incarceration of 2 years on the count of possessing child pornography and a concurrent sentence of 3 years, less credit for pre-trial custody, for the count of making child pornography available.
114In summary, it is evident based upon the jurisprudence that conditional sentences of imprisonment can and have been imposed in this province and elsewhere in Canada. The Supreme Court has specifically not removed its availability. What seems equally clear, however, is that in the cases in which a conditional sentence was imposed, it was combined with varying lengths of probation and based principally upon mitigating factors relating to the offender alone, typically resulting from cognitive impairment, or from factors which would leave the offender essentially physically unable to serve a custodial sentence. In these cases, the comparative moral culpability of the offender was a key factor in determining a proportionate sentence. In none of these cases was a conditional sentence imposed to permit an offender, who was not himself subject to medical or psychological impairments, to provide service and care for members of his family.
115In all of those cases, however, the terms of the sentence imposed reflected the importance of recognizing that a conditional sentence is a sentence of imprisonment, which, although served in the community, typically with terms amounting to house arrest with exceptions, must also curtail the liberties of the offender if it is to be meaningful as a form of punishment. The importance of appropriate additional or special conditions, is also reflected in the case law. In R. v. Smith46, the Court of Appeal emphasized this point at para. 11:
The trial judge also erred in this case by imposing a conditional sentence, which contained no restrictions on the liberty of the appellant. A conditional sentence is a custodial sentence, but one which is not to be served in a correctional facility, but in the community. It is neither a suspended sentence nor equivalent to a period of probation. It is intended to achieve the purposes of a custodial sentence without institutional incarceration. In order to achieve those purposes there should generally be some restrictions on the liberty of the person during the period of the sentence. This usually takes the form of some variation of house arrest, such as a significant curfew or confinement subject to attendances only for employment, education, or medical necessity purposes, or to allow the accused to carry out community service obligations imposed as part of the sentence.47
116Finally, under this heading, I have considered whether and how a sentence might be imposed here that would be blended, that is, having both custodial and non-custodial components. I felt the need to explore the legality of such a sentence given the wide disparity between the positions of Crown counsel and defence counsel, the former advocating a significant sentence of incarceration and the latter advocating a sentence that is by definition custodial but served in the community subject to strict rules and conditions. At least initially, neither of them contemplated the possibility or appropriateness of a so-called “blended sentence.”
117In a strict sense, however, relating to a single sentence, s. 742.1 does not permit a “blended” sentence where part of the sentence is served in custody and the balance of the sentence is served in the community.48 However, the case law supports that a custodial sentence and a conditional sentence can be imposed consecutively, where an accused is sentenced for more than one offence, provided the total sentence does not exceed 2 years less one day.49
118Blair J.A. explains at para. 34 of R. v. Davies50, how a blended sentence can be crafted provided the required specific circumstances are present:
34 A proper balancing of all the foregoing factors leads me to the conclusion, therefore, that a blended sentence combining both incarceration (for the breach of trust offences) and a conditional sentence (for the fraud offences) is the appropriate disposition in the circumstances of this case. This court has held that it is legally permissible to blend a custodial sentence with a conditional sentence, when an offender is being sentenced for more tha[n] one offence, so long as the sentences, in total, do not exceed two years less one day and the court is satisfied that the preconditions in s. 742.1(b) have been met in respect of one or more of the offences. [Citations omitted.]
119In the result, if found to be appropriate, a judge can craft a blended sentence of two years less a day, part custodial and part conditional, where there are convictions on more than one offence, provided the aggregate sentence does not exceed two years less a day. As the balance of these reasons will show, this is the form of sentence I have determined to impose in this case.
(iii) Collateral Consequences and the Effect of Sentence on Family
120The offender’s spouse, Ms. Simpson, expressed disdain for Crown counsel having described her circumstances as “collateral damage”, but the defence did introduce extensive evidence on the anticipated dire medical and psychological impacts and “collateral consequences” that will result to Ms. Nora Simpson if Mr. Simpson is sentenced to a period of incarceration. The case law does provide authority for a sentencing judge to take into account the collateral consequences of a sentence or the underlying conviction when determining the appropriate sentence for an individual offender.51
121The Supreme Court discussed the significance of collateral consequences in R. v. Pham.52 That case deals with the impact of a sentence on the immigration status of the offender, but the principles referenced by Wagner J. are potentially applicable here:
In light of these principles, the collateral consequences of a sentence are any consequences for the impact of the sentence on the particular offender. They may be taken into account in sentencing as personal circumstances of the offender. However, they are not, strictly speaking, aggravating or mitigating factors, since such factors are by definition related only to the gravity of the offence or to the degree of responsibility of the offender (s. 718.2(a) of the Criminal Code). Their relevance flows from the application of the principles of individualization and parity. The relevance of collateral consequences may also flow from the sentencing objective of assisting in rehabilitating offenders (s. 718(d) of the Criminal Code). Thus, when two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offenders, the most suitable one may be the one that better contributes to the offender’s rehabilitation.53
122Wagner J. also cites with approval the following passage from Allan Manson, The Law of Sentencing54, in which the author emphasizes that the presence of collateral consequences can mitigate the need for denunciation, and implicitly for general deterrence:
As a result of the commission of an offence, the offender may suffer physical, emotional, social, or financial consequences. While not punishment in the true sense of pains or burdens imposed by the state after a finding of guilt, they are often considered in mitigation… .
The mitigating effect of indirect consequences must be considered in relation both to future re-integration and to the nature of the offence. Burdens and hardships flowing from a conviction are relevant if they make the rehabilitative path harder to travel. Here, one can include loss of financial or social support. People lose jobs; families are disrupted; sources of assistance disappear. Notwithstanding a need for denunciation, indirect consequences which arise from stigmatization cannot be isolated from the sentencing matrix if they will have bearing on the offender’s ability to live productively in the community. The mitigation will depend on weighing these obstacles against the degree of denunciation appropriate to the offence. [Emphasis added by Wagner J.] 55
123Thus, collateral effects may figure in the determination of a fit sentence, but there are clearly limits:
14 The general rule continues to be that a sentence must be fit having regard to the particular crime and the particular offender. In other words, a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.
15 The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament's will.56
124More akin to the present case than Pham is the Court of Appeal decision in R. v. Nikkanen57, where serious financial consequences to the offender and his dependents weighed in favour of a conditional sentence.
125In that case, the offender and the adult complainant had an intimate relationship. He visited the complainant at her apartment and without consent had intercourse with the complainant while she was asleep, due to the sedative effects of her medication. He was convicted of sexual assault and sentenced to 18 months' incarceration plus probation. The trial judge concluded that while the offender was not a danger to the community, a conditional sentence would not adequately reflect the predominant principles of general deterrence and denunciation.
126On appeal, the accused filed fresh evidence showing he was married with three teenage children, that his family was very supportive of him, that he was self-employed and owned a contracting company and that his wife was employed, but only on a part-time basis. He had been on bail for three years without any problems. The fresh evidence showed that if he were to be incarcerated they would experience devastating financial impacts. They would lose their house, the oldest child would be unable to attend college, and their other child would no longer be able to afford to be involved in hockey.
127Since the length of sentence of eighteen months plus probation was not outside the usual range of sentence for that type of offence, and having regard to the three years the offender had been on bail without any problems, the court concluded that the collateral consequences caused it to be a fit and proper case for the imposition of a conditional sentence. After reviewing the fresh evidence that had been introduced on appeal, the court concludes:
15 Much of this evidence was not presented to the trial judge. In light of the total period of time spent on bail and the disastrous financial results that would flow from incarceration, this is a proper case, at this time, to impose a conditional sentence.58
128Finally, the Supreme Court’s decision in R. v. Bunn59, demonstrates that a conditional sentence may be imposed in circumstances where an offender’s spouse or family would suffer disproportionately from his incarceration, for example, where the offender’s disabled spouse would be required to suffer undue hardship.
129In that case the offender was a 45-year-old lawyer with no prior record of offences who was convicted of six counts of criminal breach of trust. He had converted trust monies to his general account from six overseas estate clients, misappropriating approximately $86,000 of client funds in total. Not surprisingly, he was disbarred after being convicted. As in this case, he was the sole caregiver for his wife. But in Bunn, the wife was physically disabled and confined to a wheelchair, and the offender also cared for one teenaged daughter.
130The trial judge considered the offender’s caregiver role and his personal loss, including the respect of the community and the loss of his career. Nevertheless, the trial judge determined that incarceration was required and sentenced Mr. Bunn to a two-year term of imprisonment.
131The offender appealed, but before the appeal was heard, Parliament enacted the conditional sentencing regime. Under the amended law, conditional sentences were to be available in all cases where, amongst other things, a sentence of less than two-years had been imposed. The Court of Appeal applied the new provisions retrospectively to give effect to the accused's right to the benefit of lesser punishment as guaranteed by s. 11(i) of the Charter, and determined that a conditional sentence would be appropriate, allowed the accused's appeal, reduced the gross sentence to two years less a day, and ordered that the sentence be served in the community.
132The Crown’s appeal to the Supreme Court was dismissed.60 The offences charged and the circumstances compelled a sentence that emphasized principles of denunciation and deterrence, but the majority found that a properly crafted conditional term of imprisonment could meet that objective, and the Court of Appeal's sentence provided sufficient denunciation and deterrence, and was not disproportionately lenient. Strict house arrest and community service conditions met the required principles of sentencing and also assisted in satisfying the aims of restorative justice and rehabilitation. Finally, the court concluded that the offender’s disabled spouse should not be made to suffer undue hardship as a result of his incarceration, and that this factor was entitled to consideration by the Court of Appeal below.61
133Regrettably, the jurisprudence is far from consistent. In some cases the collateral consequences have been treated as mitigating factors resulting in some reduction of sentence while in others they have had little impact. Some of the case law goes so far as to admonish that the court has no role that permits otherwise proportionate sentences to be reduced because of circumstances of family hardship. In Ruby on Sentencing, the authors observe that courts try, where possible62, to avoid imposing sentences that will prejudice either children or other members of the family, but they also stress that principle only operates where there are no other or more important aspects requiring severe or deterrent sentences.
134R. v. Spencer63 is an example of the latter principle limiting the discretion of the court to impose a conditional sentence and resulting in a custodial sentence being imposed on appeal. The accused single mother of three young children was arrested at the airport with 733.4 grams of cocaine in her suitcase, convicted of importing cocaine into Canada, and sentenced conditionally to two years less a day. The trial judge found that individual, extenuating and exceptional circumstances warranted a departure from the usual range that would have resulted in a penitentiary sentence. The trial judge found numerous mitigating factors, including the deportation consequences of a longer sentence and the best interests of the accused’s three young children.
135Despite these factors, the Crown’s appeal against sentence was allowed and a custodial sentence of 40 months was found to be appropriate. None of the factors described as mitigating justified departure from the usual range. In that case, in concluding that the conditional sentence imposed was inadequate, Doherty J.A. specifically notes the grim reality that the young children of parents who choose to commit serious crimes necessitating imprisonment, like drug smuggling, suffer for the crimes committed by their parents, but emphasizes that concern cannot displace the predominant need to impose sentences that will recognize the harm caused to children by the importation of illegal drugs. At para. 47, he reluctantly acknowledges that:
47 The fact that Ms. Spencer has three children and plays a very positive and essential role in their lives cannot diminish the seriousness of her crime or detract from the need to impose a sentence that adequately denounces her conduct and hopefully deters others from committing the same crime. Nor does it reduce her personal culpability. It must, however, be acknowledged that in the long-term, the safety and security of the community is best served by preserving the family unit to the furthest extent possible. In my view, in these circumstances, those concerns demonstrate the wisdom of the restraint principle in determining the length of a prison term and the need to tailor that term to preserve the family as much as possible. Unfortunately, given the gravity of the crime committed by Ms. Spencer, the needs of her children cannot justify a sentence below the accepted range, much less a conditional sentence.
136Finally, I wish to refer to two quite recent decisions dealing with requests for a reduced sentence and clemency owing to family circumstances, in the Court of Appeal decision in R. v. Kanthasamy64, and a decision of this court in R. v. A.B.65
137In Kanthasamy, the appellant sought a reduced sentence after the Court of Appeal reduced the sentences of his three co-accused. The Crown agreed to a reduction from eight and a half years to six and a half years, consistent with the revised sentences of the other offenders. However, the appellant also appealed on the basis of fresh evidence of personal health issues and a very difficult family situation, seeking a further reduction to 5 years. The appellant had three children, one of whom had been diagnosed with cerebral palsy since his original sentence and required costly treatment. In addition, his common law partner had ceased working, and was struggling with medical issues.
138The Court accepted the fresh evidence, noting that it could have had an effect at the time of sentencing. It reduced the sentence to six and a half years, the amount agreed to by Crown counsel, but was unwilling to reduce the sentence any further, citing Pham for the proposition that while collateral consequences can impact the sentence, it must still be proportionate to the gravity of the offence. The Court referred the appellant to the Parole Board, which can grant early parole to an inmate suffering from exceptional circumstances.
139I note that Regulations under the Ministry of Correctional Services Act provide similar clemency may be available for provincial reformatory sentences, apart from early parole eligibility after one-third of a sentence has been served, “where in the opinion of the Board, compelling or exceptional circumstances exist that warrant the inmate’s parole.66
140The acceptance of fresh evidence suggests that family effects and negative consequences can impact sentencing, but there are plainly limits to mitigating impact. In the second case, R. v. A.B., above, the offender was convicted of sexual assault, luring and exploitation of a 16-year old child. However, the offender’s wife suffered from mental illness and occasionally required hospitalization, during which time the offender watched her children. The offender was the sole income earner and his wife’s main caregiver since she had become unable to work. He had taken care of both her health and her finances and without his help the home would experience extreme financial hardship.
141Nevertheless, while acknowledging that the offender’s wife would be “significantly and negatively impacted by his imprisonment,” Bondy J. concluded that the effect on third party dependents is “a factor deserving of some attention albeit minimal weight”, referring to Hill J. in R. v. N. (K.)67, where the offender’s mother was in a state of total dependency upon her son.
142In summary, the mitigating effect of indirect consequences must be considered in relation both to future re-integration and to the nature of the offence. Burdens and hardships flowing from a conviction, like loss of financial or social supports, loss of employment, the disruption of families, the disappearance of support sources, and the loss of care resources for disabled family members are relevant if they make the rehabilitative path harder to travel. The degree of mitigation they permit, however, will depend on weighing these burdens and their potential consequences against the degree of denunciation appropriate to the offence.
143However, the circumstances of the family cannot result in the imposition of a sentence that would otherwise be inappropriate, having regard to the predominant principles I am required to apply, including in particular the principle of proportionality. Decisions like Bunn, decided over 20 years ago, and the more recent appellate guidance, particularly in Pham and Nikkanen, show there will always be scope for family circumstances to impact on a sentencing decision, but the extent of that alleviating effect will diminish where counterbalanced against increasing demands for strong deterrent sentences, as we have witnessed in relation to sexual offences against children, including child pornography offences, over the past five to ten years.
Analysis and the Principles Applied
(i) Appropriate Range of Sentence for this Case:
144Mr. Simpson has been found guilty of (i) two counts of possession of child pornography, (ii) two counts of accessing child pornography, which are both punishable by a term of imprisonment of between one and ten years, and (iii) one count of making child pornography available, which is punishable by a term of imprisonment of between one and fourteen years.
145Based upon the application of R. v. Kienapple68, however, he will be convicted on only three counts relating to the indictment period, that is, one count of each of accessing, possessing, and making child pornography available. Crown counsel seeks a global sentence here of three and a half years of imprisonment on all counts. Obviously, to the extent that his submissions focused on the aggravating aspect of more than three counts, that aspect must be dialed back somewhat, though I acknowledge that it would not materially affect his position, other than perhaps moving it more into the middle of the applicable range.
146Before focusing on the aggravating and mitigating factors, I would briefly draw attention to the specific cases advanced by both counsel as being of particular relevance to (i) the appropriate and applicable range of sentence for a case like this, and (ii) the appropriate sentence for this particular offender. Those cases, and some others, are referenced in point form in Schedule I: R. v. Simpson: Table of Cases. In the brief summaries that are set out there, I have noted the currency of the decision, the age of the offender, the quantity of child pornography involved, and the sentence imposed.
147In addition to Inksetter, Crown counsel references the following decisions: R. v. Sawyer69, R. v. Carlos70, R. v. Pelich71, and R. v. Jonat72. Other cases referenced by Crown counsel and provided to me just before this sentencing hearing included R. v. Murty, R. v. Walker, and R. v. Rule, but I have discussed these cases above, in my review of the circumstances where a conditional sentence was under consideration, and can or should be imposed. Defence counsel referenced three decisions in support of his submissions, in addition to R. v. Jonat, above, also referenced by the Crown: R. v. Barmashi73, R. v. Chislette74, and R. v. Despot75.
148I have undertaken a careful analysis of these cases in crafting an appropriate sentence, and I will address several of these decisions in greater detail later in these reasons. However, after considering the similarities and differences in all of these decisions, including size of collection, acceptance of responsibility and remorse, the likelihood to re-offend, and the other factors enumerated above, I regard Crown counsel’s request for a sentence of three and one-half years as excessive in the particular circumstances of this case. In my view, careful consideration of these factors and the facts in this case support the appropriate range here being from 18 months at the low end, to between two and three years at the upper end. It is certainly a range that includes the possibility of a sentence ranging from penitentiary time, to a reformatory sentence, even to and potentially including a conditional sentence order. Determining where within that range is appropriate depends on my assessment of the particular aggravating and mitigating circumstances in this case in the paragraphs that follow.
(ii) Aggravating Factors:
149The potential aggravating factors relevant to this offender include (i) the size of his pornography collection and the duration of the offending conduct, (ii) its nature (including the age of the children involved and the relative depravity and violence depicted), (iii) whether the offender shared or made his pornography collection available to others, and (iv) the extent to which the offender is seen as a danger to children (including whether the offender is a diagnosed pedophile who has acted on his impulses in the past by assaulting children). Apart from these factors, I am also obliged under s. 718.01 and 718.2 of the Code to give primary consideration to the objectives of denunciation and deterrence for an offence that involves the abuse of a person under the age of eighteen years.
150Apart from those statutory aggravating factors and more recent judicial developments, the courts have long recognized that those who possess and distribute pornographic material fuel its production. They cause children to be sexually victimized to satisfy the so-called “market demand” for “fresh images”, to be consumed by those who are part of the child pornography Internet community.76 That on its own has become a focal aggravating factor.
151Friesen does not specifically address the sentencing of child pornography offenders, but the Supreme Court plainly intended that the guidelines it set should apply, not only to the perpetrators of child sexual abuse, but also to those who contribute to its perpetuation through the collection and broadcasting of Internet based child pornography. That said, this emphasis has not changed the relative gravamen of different sexual offences involving children. Sexual assault of and distribution of child pornography are both punishable by sentences of up to 14 years, but accessing and simple possession of child pornography, as in the case of the offences of sexual interference and invitation to sexual touching of minors remain punishable to the somewhat lesser level of 10 years.
152The principal aggravating factor in Mr. Simpson’s case is the large quantity of child pornography found on the offender’s computer and two hard drives, a total of 1848 media files (996 still images and 852 videos) containing no duplication. It was described as “enormous”, and indeed it is a large collection, but that is also a relative term. In size, its volume is less than that in Sawyer, Pelich, Rule, Barshami and, importantly, Chislette, but it is more than was present in Carlos, Jonat, Walker and Bock. It is a roughly equivalent volume to that found in Kwok, Murty and Despot, where the respective sentences imposed were one year in 2007, three years in 2021, and 17 months plus two years probation in 2018.
153The second aggravating aspect is that the images depicted in Mr. Simpson’s collection of photos and videos cover all five of the categories of child abuse images identified by the U.K. Court of Appeal in R. v. Oliver77, but that have also been recognized in several cases in this province.78 The sexual abuse can be categorized to include vaginal intercourse, anal intercourse, vaginal digital penetration, anal digital penetration, manual masturbation, group masturbation, fellatio, and nude erotic posed modeling, predominately involving female children. Plainly, the nature and size of this collection is a serious aggravating factor.
154Crown counsel argues that the period of time during which the offending occurred, and may have occurred, is a separate additional aggravating factor. He asserts that just because this is the first time Mr. Simpson was caught offending, does not mean he is a first time offender. Certainly, these offences continued for at least the four and a half month period covered by the indictment, from May 19 until October 3, 2018. Moreover, while the duration is un-quantified, Mr. Simpson did acknowledge to police that he had been looking at such images for some years.
155However, I do not accept this submission. I find it to be speculative and somewhat churlish, because it seemingly invites an increased sentence based on a matter of speculation, not fact. The fact that Mr. Simpson is a first time offender is relevant. However, Mr. Simpson is not to be sentenced for anything more than the charges as set out in the indictment on which he has been found guilty, subject as well to the reduction of actual convictions under the rule in R. v. Kienapple: nothing more and nothing less.
156The final aggravating factor, which has several aspects in this case, relates to technology. First, the level of Mr. Simpson’s technological sophistication is itself a significant component of this aggravating factor. Mr. Simpson is a computer technology expert, a sophisticated user as I noted at paragraph 190 of my Reasons. The setup on the Simpson computer could not have been put in place by anyone but a very sophisticated user.
157At paragraph 196 I noted that Mr. Simpson’s computer was hooked up in a manner that D.C. Saini had never seen before. He photographed that configuration in case he would ever see it again. It clearly demonstrated a high level of computer expertise and advanced technical skill. He noted that the offender had taken particular care to set up his system in a manner that would hide his IP Address. When he answered questions from the police officers, Mr. Simpson both confirmed and demonstrated his knowing control over those devices, and thus his intent to access and possess the illicit images they contained. At that time, however, he showed no understanding or insight into the harm caused by his activity.
158The second aspect is that increasing ease of access and proliferation of child pornography is the product of increasingly sophisticated and accessible technologies. The court in Inksetter79 referred to Feldman J.A.’s commentary on those same factors more than a decade ago in R. v. F. (D.G.)80, so to my mind, it cannot help but be aggravating that ten years later, police investigators are increasingly unable to keep up with the expansion of the virtual world of child porn. They continuously learn of new applications, and the images and videos are increasingly aggressive and brutal. Why? Because of technology known and used by sophisticated users like this offender.
159However, technology also ensures continuing victimization online since the distribution of images effectively repeats the original sexual violence. Children who are victims live with the knowledge that at anytime in their lives, others may be accessing the films or images of them being abused.81 “Amy” and “Lily” recounted that when they reached an age where the physical abuse came to an end, they confronted the realization that for them, dealing with the impact of having their images/videos uploaded on the Internet will be a lifelong sentence.
160The third aspect of this final aggravating factor relates specifically to the charge of making child pornography available. It is based on the supposition that the offender not only downloaded and uploaded pornographic images of children being abused for his own viewing pleasure, but that he intentionally and purposefully had his systems configured in a manner that permitted the materials to be accessible to others, and with the intention that they would be.
161At paragraph 190 of my Reasons, I wrote in part:
[T]he user must enter into an agreement that by downloading and using the Shareaza program, they acknowledge that they will be using that software to download imagery. As well, however, by the very act of downloading the software, the user acknowledges that they consent to that same peer-to-peer software, being enabled, and permitted to be used by third parties to upload images from them, or download images to them. [Emphasis added.]
162This statement was the foundation for my finding of guilt on the charge of making child pornography available. However, I am obliged to note that extensive submissions after the fact during the sentencing hearing, and since then by written submissions on the application of Kienapple, call into question whether Mr. Simpson did actively and intentionally make child pornography available.
163Defence counsel addressed that point in his submissions on sentence. He noted that Crown counsel indicated that the files that the accused had on his computer were accessible to the world, but questioned whether there was actually any evidence of that sharing and making available before the court. He also argued that the offender’s culpability is attenuated because, in his submission, the offender was said to have downloaded those files to a separate folder, which was not available to anybody but himself.
164Further, in the second letter I received from Ms. Simpson imploring me to impose a conditional sentence, she states that Mr. Simpson took no active steps to make child pornography available to anyone:
As I understand it, one major area of concern is the claim that Ryan was making these videos available. I have spoken with him extensively on this matter. He explained the only reason he had the default setting left as is was because that allows you to download better. Once the content was downloaded, he moved the contents to a separate and inaccessible folder. He has assured me it was not for sharing. He has not made these available to anyone. It was never about sharing. Not that this is great news, but please take this into serious consideration.
165Section 163.1(3) of the Code provides as follows:
Every person who transmits, makes available, distributes, sells, advertises, imports, exports or possesses for the purpose of transmission, making available, distribution, sale, advertising or exportation any child pornography is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year. [Emphasis added.]
166Given the words chosen by Parliament, the actus reus of the offence of making child pornography available as described appears to require that the defendant have taken positive action. The words “transmits”, “makes available”, “distributes”, “sells”, “advertises”, “imports”, and “exports” are all active verbs. They contemplate action on the part of the defendant, not mere passivity. Nevertheless, mere passive possession can also satisfy the actus reus requirements provided that the defendant’s possession is proven to have been “for the purpose of” transmitting, making available, distributing, selling, advertising, or exporting child pornography.
167The mens rea, however, the mental element of intent that needs to be present, includes the knowing intention to cause the actus reus or external circumstances of the offence.
168R. v. Spencer82 shows that the defendant’s guilt will be established where the Crown proves that the defendant had knowledge that the pornographic material was being made available to others, but this knowledge may be proven in several ways. It may be proven by evidence of a knowing positive act by the defendant to facilitate access and to make the material available, but it may also be proven by the doctrine of wilful blindness.
169Mr. Simpson’s position that he only intended to enable himself to have access to the pornography is consistent with and supported by other evidentiary aspects of the matter. In particular, there was no evidence at trial of Mr. Simpson actually intending to make his child pornography available to others. There was no evidence of Mr. Simpson taking actions which reflect such an intent. The only evidence from which intent can be inferred, as I noted in my reasons, is in permitting the default setting in the Shareaza software to be operative. That default setting evidently would have allowed others to access his collection, even if his intent in doing so was not to broadcast or permit access but only to improve the quality of his own downloads.
170I had and presently have no cogent evidence that in moving the pornography images and videos to a separate folder, that he caused the material to be inaccessible by others. To the contrary, there was evidence that a sophisticated user like Mr. Simpson should have known that by adopting the default setting, he was permitting access by others, whether he wanted it or not. In my reasons, I found that was enough to make out the offence, although that conclusion is premised on the principle that persons logically intend the natural consequences of their actions. I say that because I do not actually know looking back today whether Mr. Simpson needed to flip the switch to default to improve his downloading, or otherwise.
171I undertake this analysis in this context because the offence of making child pornography available is the most serious of the three charges. It is punishable by up to fourteen years imprisonment. However, based upon the analysis in the preceding paragraphs, I find myself unable to conclude that the level of Mr. Simpson’s moral culpability for this offence is more than de minimis, given what I now know. The reason is because I cannot say whether the application of the default setting was a considered action in the sense of “intending it to happen”, or merely something that happened in the course of him trying to achieve a different quality of downloading.
172By way of comparison, it is an entirely different and lesser level of blameworthiness from the moral culpability of the offender in R. v. Chislette. In that case, as I have noted, the offender not only took active steps and established a Dropbox account to facilitate others’ access to his collection, but he also directly and knowingly took actions to distribute child pornography by emailing it to individuals who expressed interest, but who unbeknownst to him, were undercover police officers. As such, while the presence of the offence itself is an aggravating factor, I do not find the gravamen of Mr. Simpson’s actions or inactions in relation to the offence of making child pornography available to be anywhere near the level of egregious moral culpability that could warrant a significant sentence, much less the increased level of sentence that Crown counsel argues is called for.
173I conclude this section by specifically noting that other potentially aggravating factors identified in Friesen are not present in Mr. Simpson’s case. Mr. Simpson is not a high-risk offender. The medical reports filed in evidence and opinions of the experts who assessed and have been treating him on an ongoing basis, which I consider to be uncontested, show that Mr. Simpson does not have a high risk to re‑offend. Neither did this case involve actual abuse by this offender or the breach of a position of trust. Certainly the victims of the child pornography experienced violence, but Mr. Simpson’s crime was not abusing them directly, but rather one of indifference and self-gratification by collecting images that recorded harm and violence caused to others.
(iii) Mitigating Factors
174The case law shows there may be numerous potential mitigating factors in child pornography cases. These 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 counselling, or has already undertaken such treatment, (vi) whether or not he pleaded guilty, and (vii), the extent to which the offender has already suffered for his crime (for example, in his family, career or community). To this, I would add the relevant factor in this case of potential suffering caused to his family, and in particular to Ms. Nora Simpson given her precarious medical and psychiatric condition.
175Crown counsel contended that there is a complete absence of mitigating factors here, at least in his initial written submissions. He asserted that there was (i) no guilty plea, (ii) no counseling or upfront therapeutic work or treatment, (iii) no diagnosis or information regarding the underlying source of the offending behaviour, and (iv) no evidence of remorse. He accepts that an absence of evidence does not mean Mr. Simpson is not remorseful but that at the very least there is nothing tangible here to indicate an acknowledgement of harm or insight into his offending conduct. I am unable to accept these submissions. The evidence shows there are a number of strong mitigating features present here.
176The defendant is a middle-aged first offender. The reference letters filed by defence counsel were very helpful in demonstrating the otherwise good character of this gentleman. The contents of the PSR, a thorough analysis, support a conclusion that other than in the case of this offence, he is subject to positive pro-social antecedents. He is regarded as a person of good character who is eager and willing to help others. He is willing to submit to treatment and he has suffered greatly for his crime, in particular the impact on his family and his employment.
177Crown counsel initially suggested in written submissions that the offender neither obtained any up-front counseling or treatment for his predilection to look at child pornography, nor took any steps to diagnose or explore the underlying source or sources of the offending behaviour. As noted, I find that this is mistaken. Counsel for the offender filed extensive materials that were of great help to me in assessing this individual, the risk he presents, and the likelihood of reoffending. These are described above in the section on “Circumstances of the Offender.”
178Dr. Monica Kalia provided an extensive psychological testing report at the request of defence counsel to assist the court in understanding the offender’s risk of reoffending. Relative to counseling, at page 7 she notes as follows:
Mr. Simpson said he has been attending counseling to address the factors that led to his offending. He noted that counseling has helped him to gain a new perspective and understand his thinking errors. Elaborating he said, in the past, he allowed himself to view child pornography as he believed that his actions were not affecting anybody else. He told himself that the child in the images has already been abused and he was just watching it and was not directly involved or responsible for it. However, he stated that he has now realized that viewing child pornography is not a harmless activity. He added that sharing child pornography on the Internet with others perpetuates the abuse of the children involved in these acts. He told me that he has worked on his cycle of offending and relapse prevention plan. He has plans to [participate in] follow-up counseling in the future also.
179Dr. Kalia reports that there are no well-validated actuarial risk assessment tools for child pornography-only offenders. For this reason, in considering and forming her opinion on Mr. Simpson’s risk of re-offending and risk to the public, she relied primarily on a clinical assessment of risk and supplemented her assessment of the offender by using the well known and gold standard Hare's Psychopathy Checklist-SV (PCL-SV) which is used to screen for psychopathy. She found that this offender’s score on that test did not come even remotely close to demonstrating any psychopathic attributes. She also assessed Mr. Simpson using the Risk for Sexual Violence Protocol (“RSVP”) instrument. This tool is intended to help evaluators conduct comprehensive assessments of risk of sexual violence in clinical and forensic settings. At page 13, she added:
Mr. Simpson does not demonstrate risk factors related to sexual violence. He acknowledges his underlying interest in younger females. To his credit, he has not engaged in minimization or externalization of blame, rather he takes full responsibility for his behaviour, and presented as committed to understanding it. He is participating in counseling to address his offending and has excellent support from his wife. In summary, based on the RSVP risk appraisal, the likelihood that he will commit an act of sexual violence is in the low range.
180Finally, Crown counsel took the position that there is no evidence of remorse. However, I find that there is ample evidence of remorse in this case. At page 13 of her report, Dr. Kalia writes:
Mr. Simpson did present as remorseful for his behaviour and the hurt he has caused his wife. He was able to articulate that sexual violence causes significant harm to the victims but added that he limited his sexual interests to fantasies only and has never had thoughts of acting on them. He did not display attitudes that support or condone sexual violence. He accepts that his actions were wrong, that there are underlying problems and he has been addressing these issues in therapy. He continues to have the love and support of his wife.
181It might have been disappointing if that apart from statements made to Dr. Kalia, there was no other tangible evidence to reflect or demonstrate any personal understanding or insight into the serious and societally damaging conduct in which Mr. Simpson was engaged. That, however, has changed materially. In the January 8, 2021 letter he wrote to me in connection with this sentencing, Mr. Simpson states:
I would like to start off by sincerely apologizing for my actions and all the pain I have caused everyone. I accept full responsibility for what I have done and ask that your honour kindly consider the most lenient punishment possible. I have been a good citizen, have had no prior records, and am a contributing member of society.
182As well, the author of the PSR specifically observed Mr. Simpson’s remorse and acceptance of responsibility:
The subject stated that he takes full responsibility for the offence. He indicated that prior to being charged for the offence before the courts, he did not consider the impact on the victims affected as well as his family members and became visibly emotional upon reflection.
183Finally, I feel it is necessary to address Crown counsel’s submission that there can be no mitigation from a guilty plea, because there was no guilty plea. That is correct on its face. Although the presence of a guilty plea may be mitigating, its absence is not aggravating. In this case, however, there should be no surprise that the offender did not plead to the offences, given the Charter based arguments he advanced at trial, and yet he did not personally testify in his own defence.
184The Charter challenges in this case were neither frivolous nor lacking in an air of reality. They were taken up based on the advice of experienced and seasoned counsel, Mr. Fox, and founded upon evidence that could have supported allegations of police misconduct and breach of a number of the offender’s rights. If the Charter challenges had been successful, it could well have resulted in the exclusion of the evidence in its entirety.
185The arguments were not without merit. I found that the initial admissions to police on the execution of the warrant were obtained in breach of the offender’s ss. 10(a) and (b) rights. I found they would not have been saved under s. 24(2) of the Charter. I acknowledged that defence counsel’s arguments could potentially have resulted in the exclusion of the later police statement evidence as well, but in the result I was not persuaded and ruled in favour of the admissibility of that evidence. That was enough to ground findings of guilt.
186It is important to emphasize, however, that in taking these steps to exercise his constitutional rights, the offender did not drag the matter out. He did not testify in his own defence. He simply exercised his Charter rights on the completely proper advice of counsel, and effectively took a “no challenge” or “no contest” position, and agreed to be bound by the result, or in other words, by not testifying effectively acknowledged that the result of the Charter motion would be dispositive. In my view, this court and the public it serves should take no umbrage at that reality.
187Given that fact, I consider Mr. Simpson to be in no fundamentally different position, essentially, than an offender who does plead guilty, knowing there are no Charter arguments to be made. In Chislette, the offender who was very similarly situated to this offender in a number of respects, was offered and was sentenced to 18 months in a resolution for foregoing Charter arguments and simply pleading guilty.
188It is unknown in this case what pre-trial resolution discussions occurred between these parties, but in my view, a similar result might well have been possible if Crown counsel’s position had been similar to that in Chislette. Here, I expect that the natural flow of the litigation and the adversarial aspects of the Charter challenge, contesting the propriety of police behaviour, may have effectively precluded that result. With no criticism of either counsel, I acknowledge it may not have been possible, but I do nevertheless have some difficulty understanding why such a resolution was possible in Chislette, but would not have been here, had the offender not continued with the Charter challenges. In any event, I have determined that for Mr. Simpson should receive a modicum of mitigating credit for the time saved by the decision to raise no contest once the Charter motions were decided.
189In summary, as I previously indicated, I find numerous mitigating circumstances present in this case. These include the relatively young middle age of the offender and the fact that as a first time offender, he is entitled to the benefits of the shortest first time sentence possible, as articulated in R. v. Borde83 and R. v. Priest, above. Further, it is plain and obvious from the letters of support marshalled by defence counsel that Mr. Simpson is otherwise a person of very good and civic-minded character. The reports that have been gathered demonstrate that the offender has gained a very appreciable increased insight into his underlying problems, and he has demonstrated through his actions going back well before this trial, not merely his words, that he has already undertaken intensive treatment and counselling, and continues to be willing to submit to treatment and counselling as advised by his doctors, counsellors, and therapists going forward.
190I also find that Mr. Simpson has demonstrated genuine remorse, a remorse that continues to deepen as he increasingly understands the harm caused by those who collect and watch child pornography. Finally, as discussed above, and again below in the context of my final determination of sentence, the potential for harm to be caused to Mr. Simpson’s wife, given her ongoing conditions, is an important mitigating factor present in this case that must be addressed in the sentence imposed.
(iv) The appropriate sentence
191I turn, finally, to gather these elements together to conclude on the sentence that I have found is fit and appropriate for this offender in all of these circumstances.
192Were there no unique circumstances present here, after balancing the aggravating and mitigating factors that I have identified in this case and having regard to all of the extensive case law to which I have referred, I would have found that a sentence of about two and one-half years, that is, 30 months of imprisonment, was called for. I reach that conclusion principally as a result of drawing on the analysis of my colleagues in the 2016, and 2018 decisions in Barmashi, Chislette and Despot, which I specifically acknowledge precede Friesen, and the more current decisions of this court in Murty, Rule, and Walker, and the Alberta decision in King.
193These are the decisions that I find permit the most meaningful and careful comparison of this offender’s circumstances, and that I have distinguished to guide and assist me in placing Mr. Simpson’s sentence where I have on the continuum of ranges of sentence.
194This is not a case like Pelich, despite the offender being of a similar age to Mr. Simpson, a first time offender, and having been gainfully employed and of good character. Mr. Pelich received a four year sentence, but the case involved a much larger collection that the offender actively disseminated, and a total absence of insight, remorse, or willingness to undergo treatment. In contrast, in Barmashi, the offender’s remorse, willingness to be assessed for his risk to reoffend and his desire to be treated for what he acknowledged was a problem, caused McWatt J. to reduce the offender’s sentence by six months. That factor is more akin to this case.
195Second, I would note and compare the circumstances in Chislette, where a sentence of 18 months was imposed, to those present here. There are similarities of relevance, but also differences. What ultimately appears to have driven the sentence in Chislette, factors at least partially similar to this case, are (i) the offender’s level of insight and remorse, and (ii) the rehabilitative steps taken by the offender. In that case as in this one, Latimer J. specifically considered the impact of the length of sentence on Mr. Chislette’s wife, an innocent third party who required assistance in daily tasks, even if she did not have the same afflictions as Ms. Simpson.
196In contrast to this case, however, the offender in Chislette chose to enter a guilty plea. He could have undertaken a viable Charter challenge against the validity of the search warrants, but abandoned that right in favour of a resolution. Crown counsel put forward a sentence of 18 months in jail, while the defence advocated for a sentence between 12 and 18 months. Noting that the defendant pleaded guilty on the understanding that the Crown would seek a particular sentence, Latimer J. acceded to the Crown’s recommendation of 18 months. Of course Mr. Simpson cannot receive the full mitigating benefit of a guilty plea, but his effective “no contest” decision did shorten the trial and should be seen as a realistic and fair defence strategy, that went no farther than necessary to permit him to raise the Charter arguments.
197However, there is another aspect to Chislette that commends its approach in this case. It is inconceivable to me that there could be such a difference in sentence called for by Crown counsel in a case resolved by a guilty plea, compared to one like this where the offender chose to exercise his Charter rights. It seems plain that the circumstances in Chislette were more egregious: a materially larger collection of child pornography, and active steps taken through a Dropbox account and e-mail messages to distribute or make the pornographic images available to others. The circumstances in this case are plainly less egregious, so apart from the impact of Friesen, it is difficult to understand that the sentence sought by Crown counsel in this case is more than double that imposed in that case. To accept a difference of that magnitude would effectively amount to penalizing the offender for accepting the meritorious advice of his counsel to challenge the police conduct.
198Although Despot appears to involve a smaller collection of child pornography than that possessed by Mr. Simpson, in fact, police could not be sure of the breadth or depravity of the offender’s collection because forensic examination revealed that he had at one time possessed but then deleted 48,000 photos and 2996 movies that he accumulated over nine years. More importantly, unlike Mr. Simpson, the offender in Despot took no steps towards obtaining counseling or treatment, and of greater concern, there was no evidence obtained and advanced before the court about whether Mr. Despot presented any risk to re-offend, or was a risk to children. This, and his observation that the offender lacked insight into his offences, clearly caused concern to Felix J., who imposed a sentence of 17 months and two years probation.
199Turning to the more recent cases, in Rule, a decision of this court, the collection was substantially larger than Mr. Simpson’s, there were three possession counts and one accessing charge (note, no charge of making available), and there were personal difficulties and a care situation not dissimilar to this one. Mr. Rule was sentenced to 22 months in jail and probation of three years. His family care circumstances, for an aging mother, were acknowledged but insufficient to permit the imposition of a conditional sentence. In King, circumstances not dissimilar to this offender, the Alberta Provincial Court sentenced the offender to 18 months of jail.
200In Walker, the offender was again of a similar age to Mr. Simpson, and used the same Shareaza platform. The sentence was three-years for one count each of accessing, possession and making child pornography available of a small quantity of child pornography images but a comparably large number of videos. However, in that case, the offender showed “no sign” of insight into his offences, had not offered any evidence on his risk of re-offending, and had not sought out any treatment.
201In Murty, where Kelly J. imposed a sentence of three years, the accused had a moderate risk of re-offending and had also, like in Chislette, taken active steps to distribute and make his pornography collection available to undercover officers. In contrast to Walker and Murty, the medical reports filed in evidence and the opinions of the experts who assessed and have been treating Mr. Simpson on an ongoing basis show that he does not have a high risk to re‑offend. The same could not be said in those cases.
202I have already expressed my opinion that the appropriate range of sentence here would be between about 18 months to two and one half or up to three years. After carefully considering the similarities and differences in all of these decisions and the particular circumstances of this case, absent the potentially dire family consequences present here, I would have fixed the sentence at two and one-half years.
203Against that background and as framed, the issue is whether these circumstances require a custodial sentence, or whether this is that unique case where a conditional sentence is appropriate and fit. The appellate guidance suggests that the public’s perception of the gravity of the offences has grown significantly, and courts like this one have found that the imposition of a strict conditional sentence and term of probation can only be justified and accepted as fit in extraordinary circumstances that are rare and unique.
204Despite its theoretical availability, it is not surprising that the imposition of a conditional sentence under s. 742.1 of the Code has in most recent cases been found to be inappropriate and unfit, owing to increasing societal concerns over the abuse of children and the increased focus on denunciation and deterrence.
205I have considered the defence submissions and accept that his advocacy for a conditional sentence in this case should not be construed as an attempt to diminish the suffering of the victims of these crimes. No sentence can undo the harm sustained by the victims, but I must also be mindful that the individualized nature of the sentencing process requires that I give appropriate weight to the personal circumstances of the offender. A panoply of opinion letters and reports are said to provide compelling reasons to accept that a period of custodial imprisonment for this offender will have a profound and devastating negative impact on Ms. Simpson and cause her to be at risk of considerable harm.
206As I have emphasized, the principles of proportionality and sentence individualization are of particular importance in this case. A sentence must be proportionate to the offence and the degree of the offender's responsibility: it must speak out against the offence, but not exceed what is just and appropriate given the moral blameworthiness of the offender and the gravity of the offence. Nevertheless the law clearly establishes that sentencing will always remain a discretionary individualized process specific to the offender and his or her circumstances.
207The significant and unusual factors present here do bear on the determination of the appropriate sentence in this, and any other case, beyond the directional change advocated by the Supreme Court in sentencing for crimes against children. The case law I have reviewed shows where a conditional sentence has been considered, what circumstances have been considered extraordinary and unique, and how that has affected the determination of sentence. As well, the allegedly unique facts present here have required me to consider, what role, if any, potential serious consequences to members of the family, apart from the offender, can have on the determination of an appropriate sentence.
208What seems equally clear, however, is that in those limited cases where a conditional sentence was imposed, the decision was based principally upon negative factors relating to the offender alone, typically resulting from cognitive impairment, or from other factors which would have left the offender physically unable to serve a custodial sentence. The comparative moral culpability of the offender was a key factor in determining a sentence that was proportionate. In none of those cases, however, was a conditional sentence imposed to permit an offender who was not personally subject to medical or psychological impairments, to provide service and care for members of his family.
209Overall, however, difficult family circumstances of the offender have not resulted in the imposition of a sentence that would otherwise be inappropriate in the particular circumstances, having regard to the predominant principles required to be applied. For child pornography and other offences against children, courts must consider, in particular, the principles of denunciation and deterrence and proportionality. Bunn is an exception, but it was decided over 20 years ago and arises from the very different circumstance of a serious breach of trust fraud. Nevertheless, it is also plain that while the family circumstances of the offender, and in particular of his spouse cannot result in the imposition of a sentence that would otherwise be inappropriate in the particular circumstances, they can and must be taken into account in crafting an individualized sentence even if they are not a mitigating factor in the strict sense.
210That is why I have found it to be appropriate to reduce that global sentence to two-years less one day, and impose both a custodial sentence for two counts, and a conditional sentence for one.
211As I have described, counsel took very opposing positions on sentence. However, towards the end of the sentencing hearing, I asked Crown counsel what his position would have been if defence counsel had not sought an entirely conditional sentence, but had instead sought a sentence of two years less one day, to be served by both a custodial component and also a conditional order component.
212Crown counsel was firm and unequivocal in his position that an entirely conditional sentence would be unfit, but he did acknowledge and concede in argument that a provincial sentence of two years less a day followed by probation, “could satisfy the principles of denunciation and deterrence, in my respectful submission.”
213While it was his position that this case falls towards the higher end of the sentencing spectrum, because of his view of aggravating factors and an alleged absence of mitigating factors, a position with which I partially disagree, and while he contended that a penitentiary sentence was required, Crown counsel did also allow that in his view, a provincial sentence of two years less a day followed by probation could indeed give adequate voice to meet the predominant principles of denunciation and deterrence.
214So looked at on the spectrum of available sentences, including a conditional sentence, while it would be beneath the floor of three and one-half years that he espoused, the Crown does appear to accept in this case that a provincial sentence can meet the requirements of sentencing.
215I have been pre-occupied, and struggled for over two months with this decision, and its competing factors. I have compared and carefully considered the circumstances presented in the case law to which I have referred, in order to try to locate where the circumstances of this case should properly be located in that legal hierarchy. There are also arguably unique circumstances here that do provide support for some mitigation of sentence to reduce the difficult impact a custodial sentence could cause for this offender’s family, at least in part. I can only assure the parties that I have tried to fashion a unique sentence that does as much as possible to recognize those difficulties, while still recognizing that denunciation and deterrence are paramount.
216In the end, however, for all of these reasons, I have concluded that the majority of Mr. Simpson’s sentence requires his incarceration. He must serve time in jail to broadcast a meaningful message of denunciation and deterrence to others, and most importantly in order to observe and respect the principles of proportionality.
217He will serve that sentence as part of an aggregate sentence of two-years, less one-day, of imprisonment. Eighteen months of that sentence will be served concurrently for and allocated to the single remaining counts of accessing and possessing child pornography, after the application of R. v. Kienapple. The balance of Mr. Simpson’s sentence will be served for, and allocated to the single remaining count of making child pornography available. I have found that the low level of moral culpability attributable to this offence in the circumstances of this case calls for this component to be served by way of a conditional sentence imposed under s. 742 of the Code, to commence upon the completion of the custodial sentence, at the end of eighteen months, or earlier if Mr. Simpson qualifies for early release. The conditional sentence terms are attached as Schedule II.
Ancillary Orders
218The Ancillary Orders sought by the Crown will go on consent:
(v) an Order requiring the offender to provide a DNA sample given that s. 487.04 stipulates that offences under s. 163 are “primary designated offences”;
(vi) a lifetime SOIRA Order, which the Code stipulates is mandatory for all 3 separate charges;
(vii) an Order under s. 161(d) of the Code prohibiting this offender from using the Internet or any other digital network, unless the offender does so in accordance with conditions specifically agreed to and as set out in Schedule II of these reasons.
219Finally, an Order will go under s. 164.2 for the forfeiture of the computer hardware that was seized from the offender’s residence at the time of the execution of the search warrant on October 3, 2018.
Disposition
220The indictment will reflect the following custodial and non custodial sentences within a global sentence of two years less one day:
(i) Accessing child pornography – eighteen months jail;
(ii) Possession of child pornography – eighteen months jail, concurrent to count one;
(iii) Making child pornography available – Conditional Sentence Order of six months less one day, consecutive to counts one and two; and
(iv) Three years probation.
Michael G. Quigley J.
Released: September 14, 2021
Schedule I
R. v. Simpson: Table of Cases
| Case | Sentence (global, before credit) | Charges | Collection Size | Offender | Aggravating (or absence of Mitigating) | Mitigating (or absence of Aggravating) | Notes |
|---|---|---|---|---|---|---|---|
| R. v. Friesen, 2020 SCC 9 | 6 years | 1 Sexual interference 1 Attempted extortion |
N/A | 29 years old; no prior criminal record | • Child’s age • In victim’s home • Exploitation of another’s position of trust • No remorse or insight |
• Guilty plea | |
| R. v. Pelich, 2012 ONSC 4100 | 4 years | 3 Possession 2 Making Available 1 Accessing |
5620 images 92 videos |
45 years old; no criminal record | • Sophisticated computer user • Shared collection with others • Permanent collection on organized discs with innocuous names • Long period of time collecting • No evidence of insight or remorse • No willingness to undergo treatment • Maintained innocence |
• Lost job, declared bankruptcy • Alleged to suffer from anxiety and depression • Separated from wife, and girlfriend left him |
|
| R. v. Inksetter, 2018 ONCA 474 | 3.5 years | 1 Possession 1 Making Available |
28,052 images 1,144 videos |
51 years old; no criminal record | • Size of collection and extreme content | • Submitted to treatment • Guilty plea • Job loss • Low risk to children • Remorse and insight |
|
| R. v. Sawyer, [2019] O.J. No. 6750 | 3 years, 5 months | 1 Possession 1 Making Available |
14,594 unique images 3,205 unique videos |
23 years old; no criminal record | • Size of collection, and content was “particularly aggravating” • Shared content by exchanging passwords (rather than passive sharing under other P2P platforms) |
• Guilty plea • Remorse, and cooperation • Seeking treatment |
|
| R. v. Jonat, 2019 ONSC 1633 | 3 years | 1 Possession 5 Making Available 1 Making |
730 images 37 videos 18 transcripts of CP chat sessions |
54 years old; no criminal record | • Images collected over period of time, with curating • Degree of depravity of the images • Lack of remorse or insight |
• Almost certain deportation • Good character • Delay in trial • Hardship from loss of work |
|
| R. v. Walker, 2021 ONSC 837 | 3 years | 1 Possession 1 Accessing 1 Making Available |
43 videos 17 images |
46 years old; no criminal record | • Size/content of collection • File sharing made CP available to others • Little insight or efforts to seek treatment |
• Gainful employment until just before charges • Support from friends and family |
|
| R. v. Murty, 2021 ONSC 2801 | 3 years | 1 Possession 1 Making Available |
1349 unique images 819 unique videos |
49 years old; no criminal record | • Size/content of collection • Shared videos with undercover police officer • Moderate risk for re-offence |
• Depression and anxiety • Guilty plea • Previous substance abuse and suicide attempts |
|
| R. v. Carlos, 2015 ONSC 8085 | 3 years | 1 Possession 1 Making Available |
12 videos Additional incomplete or non-viewable files that indicated CP |
38 years old; no criminal record | • Extensive search history • Non-compliant with bail conditions |
• Very low risk of re-offending • Likely deportation upon release • Small collection, and not “unusually brutal” |
|
| R. v. Rule, 2021 ONCJ 264 | 22 months; 3 years probation |
1 Accessing 3 Possession |
22,429 images 204 videos 92,984 images not categorized |
70 years old; no criminal record | • Size of collection • Length of time • High degree of moral culpability |
• Guilty plea • Remorse and some insight • Good character, prosocial life and employment history • Negative impact on community standing • Primary caregiver to mother • Cancer, COPD, pulmonary embolism |
|
| R. v. Barmashi, 2016 ONSC 149 | 18 months; 3 years probation |
1 Possession 1 Accessing 1 Making Available |
5,116 unique images 973 unique videos |
21 years old; no criminal record | • Shared 79 images with officer after brief chat • Content on “extreme end” |
• Cooperative, showed remorse and insight • Guilty plea • Consented to psychiatric assessment • Age of offender |
|
| R. v. Chislette, 2018 ONCJ 218 | 18 months | 1 Possession 1 Making Available 1 Breach of bail |
3555 images 2155 videos |
69 years old; no criminal record | • Character of images is “significant aggravating” feature • Images made available through Dropbox and via email |
• Guilty plea • Wife requires offender’s assistance with daily tasks • Insight and remorse • Rehabilitative steps taken |
Guilty plea on understanding that Crown would seek a particular sentence. Judge agreed to Crown’s recommendation. |
| R. v. King, 2020 ABPC 219 | 18 months | 1 Possession 1 Breach of recognizance |
1112 images 79 videos |
40 years old; no criminal record | • Collected over long period of time • Mid-range collection, but no gratuitous violence |
• Low-moderate risk for online offending • Low risk for physical offence • Good character |
|
| R. v. Despot, 2018 ONCJ 556 | 17 months; 2 years probation |
1 Possession | 1663 unique images 94 unique videos Additional 48,000 images and 2,996 videos had been deleted |
“Middle-aged”; no criminal record | • Size and nature is “highly aggravating” • Questionable insight, and no evidence introduced on risk to children • Previously cautioned for possession of CP |
• Guilty plea • Good character • Willing to receive treatment • Impact on family and employment |
|
| R. v. Kwok, 2007 CanLII 2942 (Ont. S.C.) | 1 year; 3 years probation |
1 Possession | 2000 images 60 videos |
29 years old; no criminal record | • Size and content of collection • Collection kept on shared computer • Possible risk to children • No meaningful remorse or insight |
• Good character • Job loss • Guilty plea (but late) |
|
| R. v. John, 2018 ONCA 702 | 10 months; 2 years probation |
2 Possession | 50 images 89 videos |
31 years old; no criminal record | • Content of CP | • Remorse and insight • Mental health problems • Submitted to treatment |
Struck MMS for possession of CP (s. 163.1(4)(a)) |
| R. v. Dawkins, 2019 ONCJ 820 | 9 months; 3 years probation |
1 Possession | Unknown (deleted after viewing) | 62 years old; no criminal record | • Available to others due to method of access | • Remorse and some insight • Low risk to children • Good character • Guilty plea • Seeing psychologist |
|
| R. v. Singh, 2021 ABPC 103 | 6 months less a day; 3 years probation |
1 Possession | 19 videos | 37 years old; foreign national | • Involved in group chat where videos shared | • Good character • Low risk to children • Guilty plea • Remorse, but no insight • Immigration consequences and effect on family |
|
| R. v. Woolf, 2019 ONCJ 376 | 90 days, intermittent; 1 year probation |
1 Possession | 65 images | 66 years old; no criminal record | • Nature of the CP | • Guilty plea • Remorse and insight • Loss of marriage, career, social status • Good character |
|
| R. v. Rytel, 2019 ONSC 5541 | 15 month CSO | 1 Possession 1 Accessing |
10,000 images 4,000 movies |
36 years old | • Size of collection | • Profound cognitive and social impairment • Schizophrenia • Mental illness was substantial cause of offence • Diminished moral blameworthiness • Potential danger of prison |
|
| R. v. Jongsma, 2021 ONSC 796 | 1 year CSO; 3 years probation |
1 Possession | 24 videos | 39 years old; no criminal record | • Nature of the CP | • Victim of sexual abuse as child • Substance use • Remorse • Participation in therapy • No danger to children • Guilty plea |
|
| R. v. Nepon, 2020 MBPC 48 | 12 month CSO; 2 years probation |
1 Possession | 626 images | 35 years old; no criminal record | • None, except possibly the size of collection | • Guilty plea and cooperative • Legally blind • Diagnosed with Autism Spectrum Disorder and major depressive disorder • Submitted to assessment and treatment • Insight • Low risk to reoffend • Disproportionate impact of jail sentence |
|
| R. v. Neasloss, 2020 BCPC 161 | 10 month CSO; 3years probation |
1 Possession | 35 images (with some duplicates) 1 video |
32 years old; no criminal record | • Sent two images to another Facebook user | • No significant risk to public • Guilty plea • Remorse • Willing to accept treatment • Joint submission for CSO • Indigenous heritage |
The sentencing judge noted that a 10-month CSO for "offends the principles of parity and proportionality.” However, it did not meet the stringent test required to reject a joint submission. |
| R. v. Hawes, 2021 ONCJ 40 | 8 month CSO; 2 years probation |
2 Accessing | 92 unique images | 59 years old; no criminal record | • None | • Guilty plea • Low number of images, no videos • Good character • Remorse and insight • Collateral consequences • Mental health issues, and ongoing treatment • Collateral consequences (loss of pension, employment, family home) |
|
| R. v. Swaby, 2018 BCCA 416 | 4 month CSO; 2 years probation |
1 Possession | 480 images 400 videos |
26 years old; no criminal record | • Egregious nature of videos • Collected over lengthy period |
• Guilty plea • Serious mental health issues • Intellectual impairment • Youth and isolation • Remorse • Willingness for assessment and treatment • Cooperation with authorities • Low risk to reoffend |
Schedule II [DRAFT-Finalize on September 14]
R. v. Simpson: Conditional Sentence Order Terms:
(1) The terms of this six-month less 1-day term of imprisonment will be served consecutive to the eighteen-month custodial sentence imposed on the offender, and conditionally on the compulsory conditions in s. 742.3(1) of the Code, and as delineated herein.
(2) RYAN SIMPSON is not be allowed to use a computer save and except for purposes of employment and managing finances, and even then, subject to the following terms and conditions:
You shall not use any encryption software or security program designed to prevent access to the contents of your internet capable devices or take independent action to encrypt any digital storage devices in your possession. You shall not install or permit to be installed on your internet capable device any software or service designed to defeat forensic analysis of the internet capable device.
You shall not use or permit to be installed on any device in your possession any program or service designed to allow anonymous use of the internet.
You are not to directly or indirectly access any Peer-to-peer file sharing networks (including but not limited to motherless, LimeWire, Gnutella, Bearshare, Shareaza).
For the first 12 months of this order - not use internet or any similar communication service to directly or indirectly, access any social media sites, social network, internet discussion forum or chat room or maintain a personal profile on any such service (eg. Facebook, Twitter, Tinder, lnstagram, Snapchat, or any equivalent or similar service)
For the duration of this order access you shall identify yourself by your full, real name, and shall not use any pseudonym, nickname or code to identify yourself in any communication with anyone using a computer or electronic device.
Provide access upon the request of your Probation Officer any computer or electronic device you have used for thepurposes of monitoring its use. In order to monitor your use of a computer, or other electronic device you shall install and activate, at your expense, such programs or hardware as ordered by your probation officer
(3) The following additional conditions are ordered:
RYAN SIMPSON is not to leave his primary residence except for the purpose of:
(1) reporting to his conditional sentence supervisor on a schedule to be set by the supervisor;
(2) attending sexual disorder treatment/counselling as recommended by the order supervisor;
(3) attending such additional counselling as required by the conditional sentence supervisor;
(4) obtaining basic food, hygiene, and medical products for himself and his wife, Nora Simpson;
(5) obtaining medical treatment for himself and his wife;
(6) driving his wife to and from any appointments with any of her medical caregivers;
(7) attending at such locations as his supervisor may agree to permit the offender to engage in religious observance, if any;
(8) such other extraordinary exception as may be pre-approved in writing by the supervisor.
(ii) RYAN SIMPSON is to attend for sexual disorder treatment/counselling as directed by his supervisor and to provide whatever proof of compliance is required by the supervisor;
(iii) RYAN SIMPSON is not to own or possess any weapon as defined in the Criminal Code;
(iv) [NTD: Is this condition necessary in this case?] RYAN SIMPSON is not to be in the company of any person under the age of seventeen years except in the company of an adult and at no time is to permit a person under the age of seventeen years to be in his residence, except when in the company of his wife;
(vii) Recognizing that RYAN SIMPSON is serving a term of imprisonment under the terms of this Conditional Sentence Order, and the offender having agreed to this monitoring condition, the Conditional Sentence Order Supervisor, or his or her designate as the case may be, as part of a random plan of inspection, with such police or other probation services assistance as is deemed necessary, is authorized to conduct, and shall conduct, warrantless inspections without notice of the offender’s residence, following a knock, announcement, and demand for entry, during the 6 months less one day period of imprisonment under this Conditional Sentence Order to ensure compliance with the terms of this order. RYAN SIMPSON will cooperate fully with personnel executing such inspections;
(viii) [NTD: Is this necessary?] RYAN SIMPSON is to have no contact, association or communication, direct or indirect, with [name persons, if any];
(ix) RYAN SIMPSON will, when not in his residence, carry a copy of the Conditional Sentence Order with him and produce it on request for identification by any peace officer.
[(xii) RYAN SIMPSON will serve a 3-year probationary term at the conclusion of the conditional sentence on the compulsory terms set out in s. 732.1(2) of the Criminal Code and, as optional conditions, on those terms set out as additional conditions of the conditional sentence order, with the necessary modifications, [excepting conditions #x, y and z][NTD: Are any exceptions necessary?]. In addition, the probationer is to report monthly to his probation officer on a schedule to be set by the probation officer, or as frequently on a schedule established by his probation officer.
[(xiii) The trial co-ordinator is to forward to the Conditional Sentence Order Supervisor a copy of these reasons for sentence together with copies of all medical reports relating to Mr. Simpson that were entered as exhibits in this sentencing proceeding.
Order accordingly.
COURT FILE NO.: CR-0418-19
DATE: 20210914
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RYAN SIMPSON
Defendant
Reasons for Sentence
Michael G. Quigley J.
Released: September 14, 2021
Footnotes
- R.S.C. 1985, c. C-46.
- R. v. John, 2018 ONCA 702, 142 O.R. (3d) 670.
- 2020 SCC 9, 444 D.L.R. (4th) 1.
- R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161.
- Sentencing Materials of the Accused, Volume I, p.26 of 32.
- Ibid, p.8 of 32.
- A subsequent report dated October 12, 2019 indicates that Mr. Simpson attended further counseling and had completed a total of 14 hours of psychotherapy counseling with Ms. Harish.
- Sentencing Materials of the Accused, Volume I, p.15 of 32.
- Sentencing Materials of the Accused, Volume I, p.27 of 32.
- “Lily’s” statement was recorded on January 27, 2016 and “Amy’s” statement was recorded on July 13, 2018.
- Sentencing Materials of the Accused, Volume II, p.11 of 41.
- Ibid.
- Ibid.
- Ibid, p.8 of 41.
- Ibid, p.9 of 41.
- 2020 ONCA 733, 153 O.R. (3d) 145, at paras. 162 and 164.
- 2020 ONCA 478.
- 2021 ONSC 371.
- 2013 SCC 15, [2013] 1 S.C.R. 739, at paras. 7-8.
- R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206.
- R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 57, referenced in Friesen, at paras. 35 and 97.
- Friesen, at para. 110.
- Inksetter, at para. 4.
- Inksetter, at para. 15.
- Lacasse, at para. 57.
- Friesen, at paras. 106-107.
- 2000 SCC 5, [2000] 1 S.C.R. 61.
- Proulx, at paras. 46-47.
- 2019 ONCJ 820.
- 2018 BCCA 416, leave to appeal refused, [2019] S.C.C.A No. 17.
- 2019 ONSC 5541.
- (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (C.A.), at para. 93.
- 2021 ABPC 103.
- 2020 ABPC 219. See also R. v. Harvey-Pike, 2018 ABPC 266, at paras. 103-155, where the court discussed the difference between a conditional sentence and a probation order with house arrest in a child pornography case, but in the end neither was instituted
- King, at para. 36.
- 2019 ONCJ 376.
- Woolf, at paras. 25-31.
- 2021 ONSC 796.
- 2021 ONCJ 264.
- 2021 ONSC 2801.
- 2021 ONSC 837.
- 2021 ONSC 2801.
- (1996), 1996 CanLII 1381 (ON CA), 30 O.R. (3d) 538 (C.A.).
- Murty, at paras. 31, 34-35.
- Walker, at para. 69.
- [1999] O.J. No. 2694 (Ont. C.A.).
- See also R. v. Bansch, [1997] O.J. No. 1691 (Gen. Div.), at para. 3.
- R. v. Wey, 1999 ABCA 251, 244 A.R. 189; R. v. Alfred (1998), 1998 CanLII 5634 (ON CA), 122 C.C.C. (3d) 213 (Ont. C.A.).
- R. v. Ploumis, 2000 CanLII 17033 (ON CA), 150 C.C.C. (3d) 424 (Ont. C.A.); Clayton C. Ruby, Sentencing, 10th ed. (Toronto: LexisNexis Canada, 2020), at para. 15.47.
- 2005 CanLII 63757 (ON CA), [2005] 199 C.C.C. (3d) 389 (Ont. C.A.), at para. 34.
- Ruby, Sentencing, at paras. 5.276 to 5.277.
- See also: Sasha Baglay, “In the Aftermath of R v Pham: A Comment on Certainty of Removal and Mitigation of Sentences,” (2018) 41:4 Man LJ 181.
- Pham, at para. 11.
- Allan Manson, The Law of Sentencing (Toronto: Irwin Law, 2001), at pp. 136-137.
- See also R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 47.
- Pham, at paras. 14-15.
- (1999), 1999 CanLII 7339 (ON CA), 140 C.C.C. (3d) 423 (Ont. C.A.), leave to appeal refused, [1999] S.C.C.A. No. 624, at pp. 425-426.
- Nikkanen, at para. 15.
- 2000 SCC 9, [2000] 1 S.C.R. 183.
- The decision relates in part to the extent to which deference is owed to provincial courts of appeal by the Supreme Court of Canada.
- Bunn, at para. 23.
- See for example: R. v. Collins, 2011 ONCA 182, 104 O.R. (3d) 241, where the Aboriginal accused participated in a scheme to defraud a governmental assistance scheme, but a conditional sentence was imposed to avoid separating a single mother from her 18 year old disabled child.
- (2004), 2004 CanLII 5550 (ON CA), 72 O.R. (3d) 47 (C.A.), at paras. 46-47.
- 2021 ONCA 32.
- 2020 ONSC 7691, at paras. 86-87.
- R.R.O. 1990, Reg. 778, s. 41(2).
- [1999] O.J. No. 4572 (Ont. S.C.), at para. 69.
- 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.
- [2019] O.J. No. 6750 (Ont. C.J.).
- 2015 ONSC 8085.
- 2012 ONSC 4100. See also R. v. Bock, 2012 ONSC 3117, referenced by Latimer J. in R. v. Chislette, below, where a 67 year old first offender pleaded guilty to possession and making CP available. The number of images was smaller, 381 images and 1007 videos, but was some of the vilest material that an experienced officer had ever seen. A thirty-three month jail sentence was imposed.
- 2019 ONSC 1633.
- 2016 ONSC 149.
- 2018 ONCJ 218.
- [2018 ONCJ 556](https://www.canlii.org/en/on/oncj/doc/2018/2018
