ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-18-30000705-0000

DATE: 20210129

BETWEEN:

HER MAJESTY THE QUEEN

• and –

CORNELIUS JONGSMA

M. Shumka, for the Crown

N. Sheiban and W. Jaksa, for the Defence

HEARD: September 18, 2020 at Toronto

REASONS FOR SENTENCE

DUCHARME J.

[1] Mr. Jongsma has entered a guilty plea to one count of possession of child pornography, contrary to s. 163.1(4) of the Criminal Code, R.S.C. 1985, c. C-46 (the “Criminal Code”).

Positions of the Parties

[2] Mr. Shumka for the Crown submits that a 10-month custodial sentence is appropriate to be followed by a three-year term of probation. The Crown is also seeking a 10-year order under s. 161 of the Criminal Code; registration under the Sexual Offender Information Registration Act (“SOIRA”), pursuant to s. 490.013(2)(b) of the Criminal Code; a forfeiture order under s. 164.2 of the Criminal Code and a DNA order pursuant to s. 487.051(1) of the Criminal Code.

[3] Mr. Sheiban for the defence submits that a conditional sentence is appropriate or, in the alternative, an intermittent sentence that would permit Mr. Jongsma to continue working. He is largely in agreement with the other terms sought by the Crown although he submits that, as Mr. Jongsma poses no danger to children, I make a narrower order under s. 161 of the Criminal Code.

Circumstances of the Offences

[4] In August 2017, Mr. Jongsma was employed by the catering company Aramark Canada Ltd. (“Aramark”). He started his employment with the company in 2010. Prior to the summer of 2017, he was the Director of Food Services at Royal St. George’s College, a private school for boys from grades 3 to 12. He was to be transferred to another school in June 2017 and was required to return the laptop he had been issued by Royal St. George’s College. He did so and Aramark staff members were unable to locate work files and menus that the new Executive Chef at Royal St. George’s College required for the upcoming school year.

[5] Mr. Jongsma was contacted, and he advised that he had made a backup copy of the work files and turned over a USB drive to a district supervisor named Tara Lavoie-Kulainis. Mr. Jongsma did not request that the USB key be returned. Ms. Lavoie-Kulainis delivered the USB key to Mr. Jongsma’s former manager, Ms. Karen Afheldt.

[6] The contents of the USB key were copied onto another Royal St. George’s College laptop computer. On August 29, 2017, Ms. Afheldt directed the new chef, Mr. Stanislav Kotliar, to look through the content of the USB drive to locate the menus and ordering invoices. While looking through the copy of the USB drive, Mr. Kotliar came upon a file labeled “Chef-Personal”. He looked in the file and saw multiple thumbnails of videos that he believed to be child pornography. He notified Ms. Afheldt accordingly. Ms. Afheldt contacted her superior, and also looked at the contents of the files to confirm what they were dealing with. She saw video icons which depicted young children, as well as a title she recalled as “Young Asian Penis”.

[7] Ms. Afheldt was directed by her superior to have the child pornography deleted off the work laptop, and to turn the USB drive over to Aramark headquarters the following day. On August 30, 2017, she gave the USB drive to Mr. Stephen Leonoff, who in turn contacted the police. Officers arrived and took possession of the USB drive. After conducting a cursory search to confirm child pornography was in fact on the USB drive, Mr. Leonoff was interviewed. The remainder of the Aramark employees were also interviewed later that day.

[8] Following the issuing of a warrant, Mr. Jongsma was arrested in his home on August 31, 2017. Following his arrest, and after exercising his right to counsel, Mr. Jongsma gave a cautioned statement to police admitting to the use and possession of methamphetamine for the past three years. He had in fact used methamphetamine some several hours in advance of his statement. He indicated that for the past year he had been accessing and viewing child pornography online using video conferencing applications. This always coincided with his use of methamphetamine. Mr. Jongsma further admitted that he obtained child pornography using a chat application, and that he used his phone to access and possess child pornography which he backed up to a computer. He had thought he had deleted the child pornography prior to handing the USB drive over to his employer.

[9] A search warrant was obtained to facilitate the digital forensic examination of the USB drive. The results of the examination revealed some 24 videos of varying length, each of which meets the definition of child pornography. Two of these videos were of young girls. The rest involved young boys. The children were all between the ages of 4 and 12. The videos depicted the following sexual acts:

(a) A female child, approximately 6 years old, performing fellatio on an adult male. This video is slightly over 59 seconds long.

(b) A female child, approximately 9 years old, being anally penetrated by an adult male. This video is 1 minute, 36 seconds long.

(c) An adult male fondling the penis of a 4 to 6 year-old boy. The adult male then rubs his erect penis on the boy’s penis. This video is 2 minutes, 29 seconds long.

(d) An adult male fondling a 6 to 8 year-old boy’s penis while masturbating. This video is 4 minutes, 2 seconds long.

(e) A 6 to 7 year-old boy asleep (possibly drugged) on a bed. The boy is nude, and his genitals are exposed. An adult male is then seen fondling the boy’s penis and performing fellatio. This video is 3 minutes, 47 seconds long.

(f) A 5 to 6 year-old male performs fellatio on a 9 to 10 year-old boy. This video is just under 23 seconds long.

(g) An 8 to 9 year-old boy massaging an adult male’s naked buttocks. The boy then masturbates the adult male. The adult male performs fellatio on the boy. The boy then attempts to anally penetrate the adult male. This video is 15 minutes long.

(h) An adult male masturbating while performing fellatio on an 8 to 9 year-old boy. The adult male also licks the boy’s anus while masturbating. This video is 23 minutes, 25 seconds long.

(i) An 8 to 9 year-old boy and 5 to 6 year-old boy masturbate and preform fellatio on each other. An adult male can be heard filming in the background. This video is 6 minutes, 30 seconds long.

(j) A 10 year-old boy exposing himself and masturbating in a wooded area. This video is 22 minutes, 41 seconds long.

(k) A 6 to 7 year-old boy performing fellatio on an adult male. This video is 1 minute, 12 seconds long.

(l) A 6 year-old boy being masturbated in a wooded area. The boy then performs fellatio on the adult male. The adult male digitally penetrates the boy’s anus. This video is 3 minute, 26 seconds long.

(m) An adult male anally penetrating a 10 to 11 year-old boy. The boy speaks Spanish and calls the male “Papa”. This video is just over 54 seconds long.

(n) Two 11 to 12 year-old males are in a grassy area. The smaller, younger boy is anally penetrating the larger boy. This video is almost 39 seconds long.

(o) A 12 to 13 year-old boy masturbating and ejaculating into his own mouth. This video is just over 36 seconds long.

(p) A 9 to 10 year-old boy masturbating an adult male. This video is 1 minute, 39 seconds long.

(q) Two 10 to 11 year-old boys. One of the boys performs fellatio and masturbates the other boy. This video is 1 minute, 59 seconds long.

(r) Two 8 to 9 year-old boys with an adult male. The adult male is kissing the first boy while the second boy performs fellatio on the first boy. This video is almost 29 seconds long.

(s) Two 8 to 9 year-old boys perform fellatio on each other and anally penetrate each other. This video is 1 minute, 13 seconds long.

(t) A slide show of boy image child pornography. Focus of the images is on the genitals. Boy on boy fellatio. Boy on adult fellatio. This video is 5 minutes, 44 seconds long.

(u) A 10 to 11 year-old male encouraging/forcing an 8 to 9 year-old boy to perform fellatio on him. This video is 1 minute, 13 seconds long.

(v) An adult male using a sex toy to anally penetrate an 8 to 9 year-old boy. This video is almost 45 seconds long.

(w) An adult male masturbates a 4 to 5-year boy. This video is just over 25 seconds long.

(x) An adult male anally penetrates a 4 to 5 year-old boy. Another adult is filming the scene and close ups of the penetration. This video is 1 minute, 25 seconds long.

Circumstances of the Offender

[10] Mr. Jongsma is 39 years of age. He was raised on a farm near Sudbury, Ontario and he was the fifth of eight children. His father was a strict fundamentalist Christian and Mr. Jongsma was raised in a strict, biblically based, religious environment. He was taught to obey his father’s rules or to suffer guilt and physical punishment. He was home-schooled using a Christian-based fundamentalist curriculum and he received no form of sexual education. He attended church at least three times a week. The family had no television and the only radio that was listened to was CBC radio.

[11] At approximately the age of seven, Mr. Jongsma began to experience sexual abuse and pressure from an older male member of his family who he did not wish to identify. Mr. Jongsma was pressured to provide “oral sexual relief on a continuous basis”. This abuse continued and progressed until his early teens.

[12] As Mr. Jongsma approached puberty, he began to realize that he was sexually attracted to men. The abuse stopped in his early teens, but he found himself wondering if he really was a homosexual or whether this was simply the result of the abuse. At the age of 15, Mr. Jongsma told his father how he was feeling, and he was sent to a Christian-based conversion therapy camp in Oklahoma City.

[13] Over the next two years, Mr. Jongsma realized that his feelings had not gone away or changed. He began to covertly meet men for sexual liaisons who he had met on a telephone chat line. At the age of 17, he realized he could no longer live at home and he left.

[14] Mr. Jongsma moved in with a 35 year-old man whom he had met on the telephone chat line. He stayed with the man for approximately one year. He suffered physical and mental abuse from this man who demanded and performed sexual acts upon him. He found out the man had taken nude photographs of him while he slept and had photocopied pages from his personal journal. Mr. Jongsma finally left this man.

[15] Mr. Jongsma moved in with his older brother, Reuben, who lived in Stratford. He completed high school and entered the Stratford Chefs School. He then began to experiment with alcohol and drugs. He also began to travel into Toronto to experience the gay scene. He began to work in the sex trade in Toronto although he kept this side of his life a secret from his friends. His drug use was increasing, and his drug of choice became crystal meth.

[16] He completed Chefs School in 2001 and moved to Toronto. He was living with whomever he could, and he became heavily involved in the gay sex and party scene. By his early 20s he was addicted to crystal meth.

[17] Fortunately, Mr. Jongsma then met and fell in love with David Franklin, who has become his life partner. They have been together for 19 years. They moved in together and Mr. Jongsma got off drugs and began to get serious about his cooking career. He worked at several restaurants and his career began to take off. In 2010, he got his job with Aramark Canada Ltd. and began to work as Director of Food Services at Royal St. George’s College.

[18] In the middle of 2015, for reasons that he still does not fully understand, Mr. Jongsma began abusing crystal meth again on an almost daily basis. He was unfaithful to Mr. Franklin and began covertly to have casual sex with other men. Mr. Jongsma says the crystal meth took him to some dark places where he recalled the sexual abuse he had suffered as a child. This led him to some chat rooms on the internet where he was exposed to child pornography. He admits to knowingly and willingly viewing the child pornography. However, he says he has never been attracted to sexually explicit images of boys or young men. Now that he is sober, he is repulsed by the material he viewed, and he is ashamed and sorry that he ever did this.

[19] On August 30, 2017, the day before his arrest, Mr. Jongsma confessed to Mr. Franklin about his infidelity, drug use and possession of child pornography. He was afraid that Mr. Franklin would leave him, but he did not, and he has been in court on both appearances before me.

[20] Since his arrest, Mr. Jongsma has been out on bail and has started a process of recovery and rehabilitation. He attended and successfully completed a two-stage drug treatment out-patient program at Centre for Addiction and Mental Health (CAMH). He has been under the monthly supervision of his family doctor and a drug addiction counsellor to screen, monitor and counsel him with respect to his substance abuse recovery. He is subjecting himself to numerous random toxicology screens and, with the exception of one minor incident in July 2019 where he took one half of an oxycodone to deal with a bout of extreme back pain, he has remained clean. His last toxicology screen was January 5, 2021. He also has been attending monthly therapy sessions with a social worker through the David Kelly Program at Family Service Toronto, where he is dealing with his personal issues as well as developing insight into his offences. He has also worked steadily at Calabria, an Italian bakery.

[21] In addition to positive letters from various health care providers who have been involved with Mr. Jongsma’s recovery, I have letters from his brother, Reuben his sister, Moriah; and his partner, David Franklin. They all speak of the positive aspects of Mr. Jongsma’s character and the progress he has made with his recovery.

The Purpose and Principles of Sentencing

[22] The purpose and objectives of sentencing are set out in s. 718 of the Criminal Code. Generally speaking, the fundamental purpose of sentencing is to foster respect for the law and to maintain a just, peaceful and safe society.

[23] Courts attempt to achieve this purpose by imposing just penalties that have one or more of the following objectives, which have been codified in s. 718 of the Criminal Code:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[24] Section 718.01 provides that:

When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

[25] Section 718.1 provides that:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[26] Section 718.2 of the Criminal Code also requires that courts take into account other principles, including the following:

718.2 […] (a) a sentence may be increased or decreased depending upon the presence of any relevant aggravating or mitigating circumstances relating to the offence or the offender and without limiting the generality of the foregoing,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

shall be deemed to be aggravating circumstances

(b) a sentence should be similar to those imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

Sentencing is an individualized process, in which the trial judge has considerable discretion in fashioning a fit sentence. The rationale behind this approach stems from the principle of proportionality, the fundamental principle of sentencing now codified in s. 718.1 of the Criminal Code, which provides that a sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender. Proportionality requires an examination of the specific circumstances of both the offender and the offence, so that the “punishment fits the crime.” As a by-product of such an individualized approach, there will be an inevitable variation in sentences imposed for particular crimes.

The Impact of R. v. Friesen

[27] The sentencing in this case is significantly affected by the decision of the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9 (“Friesen”), which was released on April 2, 2020. While the case dealt with an accused convicted of sexual interference and extortion, the Court used it to discuss how prevalent, serious and harmful sexual offences involving children are. At para. 5, the Court said:

…we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children's vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament's sentencing initiatives and by society's deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large. [Emphasis added.]

[28] There are two aspects of Friesen that I will discuss in these reasons. First, is the Court’s direction that sentences for sexual offences against children must increase. Second, I will consider the harms caused by the sexual abuse of children and their relevance to the sentencing of someone like Mr. Jongsma who has been sexually abused as a child.

[29] The Court could not have been clearer about the need to increase sentences for crimes of sexual violence against children. Not only did the Court say “Sentences for these crimes must increase” in para. 5, but it went on in para. 109 to state that sentences must change due to legislative change:

… Parliament's decision in 2015 to increase maximum sentences for sexual offences against children should shift the range of proportionate sentences as a response to the recognition of the gravity of these offences. Sentences should increase as a result of this legislative initiative ... In certain cases, a sentencing judge [TRANSLATION] “must feel free to impose sentences above” a past threshold … As the Quebec Court of Appeal has reasoned, courts must give “the legislative intent its full effect” and should not feel bound to adhere to a range that no longer reflects Parliament's view of the gravity of the offence .... Such a range may in fact be “obsolete and must be revised upwards.” [Emphasis added; citations omitted.]

[30] As well, in para. 110 of Friesen, the Court said that, as a result of a deeper understanding by the courts of the gravity and harmfulness of sexual offences against children, courts should be cautious about relying on precedent:

Sentences should thus increase “as courts more fully appreciate the damage that sexual exploitation by adults causes to vulnerable, young victims” (Scofield, at para. 62). Courts should accordingly be cautious about relying on precedents that may be “dated” and fail to reflect “society's current awareness of the impact of sexual abuse on children” .... Even more recent precedents may be treated with caution if they simply follow more dated precedents that inadequately recognize the gravity of sexual violence against children... Courts are thus justified in departing from precedents in imposing a fit sentence; such precedents should not be seen as imposing a cap on sentences. [Emphasis added; citations omitted.]

[31] In response to Friesen’s clear call to harsher sentences, Mr. Sheiban emphasizes that the offences in Friesen were far more serious than the offence in this case. He submits that while the principles outlined in Friesen are relevant to sentencing for other sexual offences against children, I should distinguish between possession of child pornography and other “hands on” sexual offences. In his submission, it is really the latter offences that the Court is talking about when they call for an increase in sentences.

[32] I completely reject this submission. At para. 44 of Friesen, the Court stated:

Given the facts of this case, the guidance we provide is focused on sentencing principles for the offence of sexual interference and closely related offences such as invitation to sexual touching (Criminal Code, s. 152), sexual exploitation (Criminal Code, s. 153(1)), incest (Criminal Code, s. 155), and sexual assault (Criminal Code, s. 271). However, the principles that we outline also have relevance to sentencing for other sexual offences against children, such as child luring (Criminal Code, s. 172.1).[^1] Courts should thus draw upon the principles that we set out in this case when imposing sentences for such other sexual offences against children. [Emphasis added.]

[33] In the footnote reproduced below, the Court explicitly mentions possession of child pornography. Therefore, when they say the principles in Friesen “have relevance to sentencing for other offences against children” and that courts should “draw upon the principles” from Friesen, the Court clearly rejects any such distinction between “hands on” sexual offences and possession of pornography. The former are likely to be more serious and attract higher sentences. But that does not mean that Friesen’s call for increased sentences and caution when considering pre-Friesen precedents is not equally applicable to cases of possession of child pornography.

[34] Mr. Sheiban also points to para. 38 of Friesen where the Court said:

Sentencing judges have considerable scope to apply the principles of sentencing in any manner that suits the features of a particular case. Different methods may even be required to account properly for relevant systemic and background factors ... Similarly, a particular combination of aggravating and mitigating factors may call for a sentence that lies far from any starting point and outside any range. [Emphasis added; citations omitted.]

[35] Mr. Sheiban submits that the fact that Mr. Jongsma was sexually abused as a young child over the course of several years is a significantly mitigating circumstance. This fact, along with Mr. Jongsma’s commendable efforts in pursuing therapy, drug counselling and toxicology screening, would justify my exercising my discretion and imposing a lesser sentence upon him.

[36] The Court in Friesen repeatedly mentioned the harm to children caused by sexual abuse. At para. 5, the Court mentioned “the far-reaching and ongoing harm that it causes to children.” At para. 50, the Court noted that sexual offences cause “profound harm.” At para. 56, the Court stated:

Sexual violence against children can cause serious emotional and psychological harm that, as this Court held in R. v. McCraw, 1991 CanLII 29 (SCC), [1991] 3 S.C.R. 72, “may often be more pervasive and permanent in its effect than any physical harm”

[37] At paras. 57-58, the Court held:

… The likely result of the sexual assault would be "shame, embarrassment, unresolved anger, a reduced ability to trust others and fear that ... people could and would abuse her and her body" ...

These forms of harm are particularly pronounced for children. Sexual violence can interfere with children's self-fulfillment and healthy and autonomous development to adulthood precisely because children are still developing and learning the skills and qualities to overcome adversity … For this reason, even a single instance of sexual violence can "permanently alter the course of a child's life" … As Otis J.A. explained in L. (J.- J.), at p. 250:

[TRANSLATION] The shattering of the personality of a child at a stage where [the child's] budding organization as a person has only a very fragile defensive structure, will result -- in the long term -- in suffering, distress and the loss of self-esteem.

[38] At para. 131, the Court stated:

…. The frequency and duration can significantly increase the harm to the victim. The immediate harm the victim experiences during the assault is multiplied by the number of assaults. Moreover, the long-term emotional and psychological harm to the victim can also become more pronounced where the sexual violence is repeated and prolonged [Emphasis added.]

[39] At para. 142, the Court stated:

However, as McLachlin J. explained in McDonnell, an excessive focus on the physical act can lead courts to underemphasize the emotional and psychological harm to the victim that all forms of sexual violence can cause ... Sexual violence that does not involve penetration is still "extremely serious" and can have a devastating effect on the victim … This Court has recognized that "any sexual offence is serious" … and has held that "even mild non-consensual touching of a sexual nature can have profound implications for the complainant" ... The modern understanding of sexual offences requires greater emphasis on these forms of psychological and emotional harm, rather than only on bodily integrity. [Emphasis added.]

[40] Most importantly for this argument, the Court recognized that victims of sexual abuse might become abusers themselves. At para. 64, the Court said:

In particular, children who are victims of sexual violence may be more likely to engage in sexual violence against children themselves when they reach adulthood ... Sexual violence against children can thus fuel a cycle of sexual violence that results in the proliferation and normalization of the violence in a given community. [Emphasis added; citations omitted.]

[41] This raises the delicate and difficult issue of determining how to factor in a history of sexual abuse as a child on the part of an accused when sentencing them for sexual offences involving children. In Friesen, the appellant had been physically and sexually abused as a child and later worked in the sex trade. The judge in the first instance said these were important mitigating factors that could shed some light on his actions. But the aggravating factors, the need for denunciation and deterrence and the need to separate Friesen from society because of the high risk he posed to children all required a substantial custodial sentence. The Supreme Court of Canada approved this approach.

[42] Clearly, in sentencing a sexual offender their own history of sexual victimization and abuse is relevant and must be considered. Such a history directly impacts on their degree of responsibility for their offences. Relevant considerations here would include: (a) the nature and duration of the sexual abuse suffered by an accused; and (b) the nature and duration of the sexual abuse he committed and (c) any causal connection that might be drawn to the abuse he has suffered.

Aggravating and Mitigating Factors in Possession of Child Pornography Cases Generally

[43] In Friesen at para. 121, the Court set out “significant factors to determine a fit sentence.” While making clear that these were “neither a checklist nor an exhaustive set of factors,” the factors were: (a) Likelihood to Reoffend; (b) Abuse of a Position of Trust or Authority; (c) Duration and Frequency; (d) Age of the Victim; (e) Degree of Physical Interference; and (f) Victim Participation.

With respect to the likelihood to reoffend, the Court stated at para. 123:

Where the sentencing judge finds that the offender presents an increased likelihood of reoffending, the imperative of preventing further harm to children calls for emphasis on the sentencing objective of separating the offender from society in s. 718(c) of the Criminal Code. …The higher the offender's risk to reoffend, the more the court needs to emphasize this sentencing objective to protect vulnerable children from wrongful exploitation and harm.

[44] As for the abuse of a position of trust or authority, this will generally not be directly applicable to an accused not involved in the creation of the child pornography. But an abuse of trust can still be involved given that the person filming the video or taking the photographs may be in a position of trust with the child.

[45] The duration and frequency of abuse is difficult to assess in a possession of child pornography case. While the length of the video is apparent, one cannot be sure how frequently the child is being sexually abused. However, I think it is safe to assume that most child pornography is not a one-off product and is suggestive of longer-term abuse. However, one can also consider the duration and frequency of the use of the child pornography itself.

[46] The age of the victim can be estimated from the photographic or video evidence. In Friesen, the Court said at para. 135, “the moral blameworthiness of the offender is enhanced when the victim is particularly young and is thus even more vulnerable to sexual violence.”

[47] When discussing the degree of physical interference, the Court in Friesen at paras. 142 and 144 emphasized that non-penetrative sexual abuse is still very serious. At para. 146, the Court described how “there is no type of hierarchy of physical acts for the purposes of determining the degree of physical interference.” At para. 139, the Court stated:

The degree of physical interference also takes account of how specific types of physical acts may increase the risk of harm. For instance, penile penetration, particularly when unprotected, can be an aggravating factor because it can create a risk of disease and pregnancy … Penetration, whether penile, digital, or with an object, may also cause physical pain and physical injuries to the victim … Children's bodies are especially vulnerable to physical injuries from penetrative sexual violence. [Citations omitted.]

[48] As for victim participation, the Court in Friesen at para. 151 sought to make clear that “a failure to resist or silence or passivity does not constitute consent” and the participation by a victim is not a legally relevant factor at sentencing.

[49] In R. v. Kwok, 2007 CanLII 2942 (ON SC), [2007] O.J. No. 457, at para. 7 (Ont. S.C.) (“Kwok”), Molloy J. identified the following as aggravating factors:

(1) a criminal record for similar or related offences;

(2) whether there was also production or distribution of the pornography;

(3) the size of the collection;

(4) the nature of the collection (including the age of the children involved and the relative depravity and violence depicted);

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

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

[50] Molloy J. in Kwok at para. 7 also identified a number of generally recognized mitigating factors:

(1) the youthful age of the offender;

(2) the otherwise good character of the offender;

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

(4) whether he has demonstrated genuine remorse;

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

(6) the existence of a guilty plea; and

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

Aggravating and Mitigating Factors in this Case

Aggravating Factors

[51] In this case, one aggravating factor is the quantity of child pornography. There were 24 videos, most of which lasted one to two minutes, several lasted four to six minutes and the longest three videos were 15, 22 and 23.5 minutes in length. Mr. Shumka referred to this as a moderate quantity, but it is still aggravating.

[52] The nature of the media containing the child pornography is also aggravating. The videos have an audio track. This is more serious than merely a still photographic image as it captures and conveys more completely the sexual abuse involved.

[53] The nature of the child pornography is also aggravating. It depicts very young children. They ranged in age from as young as four years old to a child who is 11 or 12 years of age. Three videos were of a child of eight or nine, three videos were of children who were 10 to 12 and the rest depicted children who were less than eight years old.

[54] Another aggravating factor is the degree of physical interference with the children in the videos. The nature of the sexual abuse was significantly intrusive. Most of the videos depict masturbation and/or fellatio. Six of the videos involved anal penetration by a finger, a sex toy or a penis.

[55] Finally, it is aggravating that Mr. Jongsma downloaded these videos in the first place and saved them on his computer. He clearly understood that this was not acceptable behaviour as he hid this material in computer files with innocuous names.

Mitigating Factors

[56] In this case there are numerous mitigating factors. Most significantly, there is the fact that Mr. Jongsma was a victim of sexual abuse for six or seven years as a child. As his abuser was an immediate family member, the abuse was not something that he could readily discuss in his family. I find based on the evidence before me that, in the words of Friesen, this sexual abuse has caused “far-reaching and ongoing harm” to Mr. Jongsma. This no doubt is related to many of the poor life choices Mr. Jongsma made at earlier points in his life such as his drug abuse and sexual promiscuity. All of this is consistent with a loss of self-esteem on his part stemming from the abuse he suffered.

[57] Mr. Jongsma’s history of abuse led him to these offences. When he resumed taking crystal meth, he found himself in dark places where he was re-experiencing the abuse he had suffered. This in turn led him to the internet chat rooms where men were exploring their sexuality and their drug use. It was here that he came across this material. Even though the videos depicted a broader range of abuse than he personally had suffered, he was, in a sense, that child victim. As Mr. Jongsma explained to Mr. Jaksa viewing this material was akin to cutting; it was a way to hurt himself. I find all of this is related to the sexual abuse Mr. Jongsma suffered as a child.

[58] While Mr. Jongsma did not need to download or retain this pornography, I find it mitigating that he never actively searched for child pornography online. Rather, he found it in chat rooms that he was accessing for other reasons.

[59] Another mitigating factor is Mr. Jongsma’s remorse. This was evident immediately following his arrest when he admitted to the police that he had been using crystal meth and had been accessing child pornography. His remorse is also demonstrated by his guilty plea, the letter he wrote to the Court and the remarks he made to the Court following his counsels’ submission.

[60] Mr. Jongsma’s remorse has also led him to deal with his drug addiction. He has successfully completed a two-stage drug addiction program at CAMH, he has subjected himself to random drug tests and remains under the care of his family doctor and a drug addiction counsellor. His use of crystal meth was a significant trigger to his viewing child pornography. While an addict may always be an addict, I find that Mr. Jongsma has not used crystal meth since being released on bail. This is a significant mitigating factor as this greatly reduces the likelihood of re-offending.

[61] Mr. Jongsma has also participated in therapy that addresses both the nature of his offences and the sexual abuse he had suffered as a child. This therapy is ongoing, but he has already developed impressive insight into his offences, something that is far too often lacking in persons being sentenced for this crime. In his letter to the Court, Mr. Jongsma said:

I am ashamed and very sorry that I ever allowed this to happen and perpetuated the unnamed childrens suffering. I understand that children without the ability to choose, were harmed and continue to feel the effects of the trauma imposed upon them. This is unfair and not acceptable or right in any way.

I take full responsibility for my actions and that the decisions I made were unconscionable and I am truly sorry for the pain and sorrow that my actions have caused. I feel horrible and have deep regret for the children who were harmed and became victims of abuse in the production of this material and realize that possessing this material further contributes to this abuse. [Emphasis added.]

[62] In Court Mr. Jongsma said:

… I've gained a very deep appreciation of my actions that have led me to be here before you today. I'd first like to tell you that I'm very sorry for the things that I did. I take full responsibility for my actions. I know that what I do [sic] is wrong and live with the guilt and remorse of my decisions on a daily basis. I know that this is not a victimless crime. The victims are the young innocent souls that were emotionally tortured, coerced, manipulated and sexually abused, most definitely against their will.

I can empathize with this as I, myself, was a victim of sexual abuse. I know the deep emotional impact that this creates. And I understand that every time an image or video of these horrific acts are shared, copied, saved, or viewed, it is as if the acts are being repeated on these children over and over again. This makes me very shameful that I participated and perpetuated this evil. No matter the reasons behind my behaviours, I know that this was very wrong.

My only wish is that no young child would ever have to endure this pain ever again.

[63] This appreciation of the gravity of his offences and why child pornography is so harmful is a significant mitigating circumstance. This gives me confidence that Mr. Jongsma will not be accessing such materials again.

[64] I also find it to be a significant mitigating circumstance that Mr. Jongsma poses no danger to any children in the real world. He has no history of preying on children and the Crown, quite properly, did not suggest anything to the contrary. Thus, following Friesen, there is no need to satisfy the sentencing objective of separating the offender from society in s. 718(c) of the Criminal Code.

[65] There are also other more traditional mitigating factors. Mr. Jongsma has no criminal record. He has been steadily employed throughout his life and, indeed, was able to continue his employment while on bail. It is a significant demonstration of his value as an employee that his employer hired him after his arrest and has kept him on despite his conviction and impending sentencing on charges of this nature.

[66] Mr. Jongsma has joined a men’s choir and has developed a circle of pro-social friends. He has also maintained his long-term relationship with David Franklin, his partner of 19 years. Both of these are mitigating factors that will help keep Mr. Jongsma on the right path in the future.

[67] Finally, Mr. Jongsma has already suffered for his crime. He lost an excellent job and this conviction will no doubt complicate his ability to find other similar employment in the future. This conviction also means that he and Mr. Franklin will never be able to adopt a child, something they had been considering.

What is the Fit Sentence?

[68] Possession of child pornography is a very serious offence. In light of the call in Friesen for increased sentences, I would think that, in the ordinary case, a first-time offender pleading guilty to this offence would receive a custodial disposition from eight to ten months. I say this at the outset, because I do not want anything in these reasons to detract from that general message.

[69] But I am also alive to Friesen’s recognition of the gravity of the harms caused by sexual offences against children. They clearly recognize that victims of sexual abuse may suffer psychological harm that is devastating, far-reaching and ongoing, perhaps throughout a person’s entire life. Indeed, they recognize that the experience of being a victim of child sexual abuse might increase the likelihood of such a person sexually abusing a child in later life. The enormity of this harm must be considered when a former child victim of sexual assault is being sentenced for sexual offences against children.

[70] I also recognize that Friesen recognizes the broad discretion that a sentencing judge has in determining a fit sentence for a sexual offence against a child. At para. 38 of Friesen, the Court said:

Sentencing judges have considerable scope to apply the principles of sentencing in any manner that suits the features of a particular case. Different methods may even be required to account properly for relevant systemic and background factors ... Similarly, a particular combination of aggravating and mitigating factors may call for a sentence that lies far from any starting point and outside any range. [Emphases added.]

[71] I think in the ordinary case involving possession of child pornography like that Mr. Jongsma had, the Crown’s position that a ten month custodial sentence is required would be most defensible. But this is not an ordinary case. Mr. Jongsma was a victim of childhood sexual abuse for many years and I have found that this is causally linked to these offences. Moreover, given that Mr. Jongsma poses no danger to children, has successfully dealt with his addiction to crystal meth and continues to benefit from therapy both with respect to the abuse he suffered as a child and the nature of his offences, I am of the opinion that a conditional sentence would be appropriate in this case.

[72] I appreciate that Friesen makes clear that pre-Friesen authority must be used cautiously. But I would note that in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, 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: R. v. Cohen, 2001 CanLII 3862 (ON CA), [2001] O.J. No. 1606 (Ont. C.A.); R. v. Weber, 2003 CanLII 28579 (ON CA), [2003] O.J. No. 3306 (Ont. C.A.); R. v. Schan, 2002 CanLII 41613 (ON CA), [2002] O.J. No. 600 (Ont. C.A.).

[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: R. v. Swaby, 2018 BCCA 416; R. v. Cayabyab, 2019 ONCJ 772; R. v. Rytel, 2019 ONSC 5541. 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.

[74] In terms of deterrence, I find that there is no longer any need for specific deterrence. As for general deterrence, both it and denunciation can be satisfied by a conditional sentence of one year. In this regard, I would also note that, among other things, Mr. Jongsma will be subject to an order under s. 161 of the Criminal Code governing his computer and internet usage for ten years and will be required to comply with the Sex Offender Information Registration Act (SOIRA) for 20 years.

Terms of the Conditional Sentence Order

[75] The terms of the conditional sentence will be as follows:

1. The statutory conditions;

2. Report to a conditional sentence supervisor as directed or no later than the end of the day on February 2, 2021;

3. Reside at 101 Prudential Drive, Unit 514 and notify your conditional sentence supervisor of any change of address within 48 hours of those changes coming into effect;

4. Remain within that address except when going to and coming from work from 6 am to 3:00 pm everyday but Sunday and Tuesday. You may also be out of the residence on Tuesdays from noon to 3 pm to attend to personal needs. You may also be out of the house for the purpose of obtaining medical or dental care.

5. Maintain full-time employment and notify your conditional sentence supervisor of any change of employment or employment schedule within 48 hours of those changes coming into effect;

6. Take, actively participate in and complete any counselling or rehabilitative programming as directed by your conditional sentence supervisor, including:

(a) Counseling for sexual offending; and

(b) Drug abuse counseling.

7. Sign releases to enable your probation officer to monitor your counseling and programming compliance;

8. Do not purchase, possess or consume any illegal drugs, or any prescription medication that has not been validly prescribed to you;

9. Abstain from being in the company of a person under the age of 18 years unless in the direct company of an adult approved of in writing by your conditional sentence supervisor;

10. Do not use or access the internet or other digital network unless you do so:

A. On your own personal telecommunications device,

i. For which you have provided to your conditional sentence supervisor in writing the make, model, serial number and service provider as well as any telephone number connected with the device;

ii. Which is equipped with software or hardware that blocks access to:

(a) Social networking sites (including but not limited to Facebook, Twitter, and Tumblr);

(b) Peer-to-peer file sharing networks (including but not limited to telegram, motherless, limewire, gnutella, bearshare); and

(c) Usenet or freenet

iii. Which does not have scrubbing software installed and does not save files in an encrypted fashion.

B. On any other telecommunications device under the direct and constant supervision of any person approved of in writing by your conditional sentence supervisor

C. Where you are not self-employed, you may use or access the Internet or other digital network at your place of business, for business purposes and in accordance with IT and other policies at your place of business.

10. Do not use any telecommunication device to access the Internet or other digital network in order to:

(a) Access child pornography;

(b) Access or participate in chat rooms, bulletin boards or other social media that discuss or promote child exploitation, child pornography, sexualized images of children or other child exploitation material

Terms of Probation and Ancillary Orders

[76] As I indicated, the parties agree on a three-year period of probation with the following terms:

1. Keep the peace and be of good behaviour;

2. Report to probation as directed no later than 48 hours from the end of your conditional sentence;

3. Notify your probation officer of any change of address or employment within 48 hours of those changes coming into effect;

4. Seek and maintain full-time employment;

5. Take, actively participate in and complete any counselling or rehabilitative programming as directed by your probation officer, including:

(a) Counseling for sexual offending; and

(b) Drug abuse counseling.

6. Sign releases to enable your probation officer to monitor your counseling and programming compliance;

7. Do not purchase, possess or consume any illegal drugs, or any prescription medication that has not been validly prescribed to you;

8. Abstain from being in the company of a person under the age of 18 years unless in the direct company of an adult approved of in writing by your probation officer;

9. Do not use or access the internet or other digital network unless you do so:

A. On your own personal telecommunications device,

i. For which you have provided to your probation officer in writing the make, model, serial number and service provider as well as any telephone number connected with the device;

ii. Which is equipped with software or hardware that blocks access to:

(a) Social networking sites (including but not limited to Facebook, Twitter, and Tumblr);

(b) Peer-to-peer file sharing networks (including but not limited to telegram, motherless, limewire, gnutella, bearshare); and

(c) Usenet or freenet

iii. Which does not have scrubbing software installed and does not save files in an encrypted fashion.

B. On any other telecommunications device under the direct and constant supervision of any person approved of in writing by your probation officer

C. Where you are not self-employed, you may use or access the Internet or other digital network at your place of business, for business purposes and in accordance with IT and other policies at your place of business.

10. Do not use any telecommunication device to access the Internet or other digital network in order to:

(a) Access child pornography;

(b) Access or participate in chat rooms, bulletin boards or other social media that discuss or promote child exploitation, child pornography, sexualized images of children or other child exploitation material

These terms are appropriate, and I shall order them.

[77] The forfeiture order sought by the Crown pursuant to s. 164.2 of the Criminal Code is for the USB drive (TPS Property Receipt #P642448) containing the child pornography. There is no dispute about this, and it shall be so ordered.

[78] Possession of child pornography is a designated offence under s. 490.011(1) of the Criminal Code. I shall make an order under s. 490.012(1) requiring Mr. Jongsma to comply with the SOIRA. That order is effective today and will continue in force for 20 years pursuant to s. 490.013(2)(a) of the Criminal Code.

[79] Possession of child pornography is a primary designated offence under s. 487.04(a)(i.8) and a DNA order is mandatory under s. 487.051(1). Therefore, I shall make an order authorizing the taking of the number of samples of bodily substances from Mr. Jongsma that is reasonably required for the purpose of forensic DNA analysis.

[80] In addition, Mr. Shumka seeks an order with a ten-year term pursuant to ss. 161(b), (c) and (d) of the Criminal Code, prohibiting Mr. Jongsma from:

(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;

(c) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate; or

(d) using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court.

[81] Mr. Sheiban argues that there is no allegation the Mr. Jongsma posed a danger to any children and that therefore the orders under s. 161 (b) and 161(c) are unnecessary and excessive. He takes no issue with the ten-year order pursuant to s. 161(d) of the Criminal Code.

[82] In R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906 (“K.R.J.”), the Supreme Court of Canada made clear that the provisions of s. 161 of the Criminal Code constitute punishment. The Court recognized at para. 47 that such orders are discretionary and must be “carefully tailored to the circumstances of a particular offender.” More specifically, the Court held at para. 47 that courts are “to craft tailored orders to address the nature and degree of risk that a sexual offender poses to children once released into the community.”

[83] Thus, such orders under s. 161 of the Criminal Code should not be made automatically. The majority decision in K.R.J. further stated at para. 48:

I agree with the line of cases holding that s. 161 orders can be imposed only when there is an evidentiary basis upon which to conclude that the particular offender poses a risk to children and the judge is satisfied that the specific terms of the order are a reasonable attempt to minimize the risk: see A. (R.K.), at para. 32; see also R. v. R.R.B., 2013 BCCA 224, 338 B.C.A.C. 106, at paras. 32-34. These orders are not available as a matter of course. In addition, the content of the order must carefully respond to an offender's specific circumstances. [Emphasis added.]

[84] The orders sought under s. 161(b) and (c) would have a significant impact on Mr. Jongsma’s liberty interests. In my view, the imposition of such conditions must be supported by evidence and must meet the test of proportionality set out in s. 718.1 of the Criminal Code. Mr. Shumka did not submit that Mr. Jongsma poses a risk to children and the evidence before me does not support that conclusion. Therefore, I decline to make those orders. I note the fact that Mr. Jongsma will be registered as a sex offender under SOIRA is something that will be readily apparent to any potential employer or volunteer group he approaches.

[85] The agreed upon order pursuant to s. 161(d) of the Criminal Code is another thing. It is supported by the evidence of Mr. Jongsma accessing child pornography on the internet and it is carefully tailored to his circumstances. Therefore, I shall make an order under s. 161(d) that Mr. Jongsma, for a period of ten years, shall not use or access the Internet or other digital network unless he does so:

A. On his own personal telecommunications device,

i. Which is equipped with software or hardware that blocks access to:

(a) Social networking sites (including but not limited to Facebook, Twitter, and Tumblr);

(b) Peer-to-peer file sharing networks (including but not limited to telegram, motherless, limewire, gnutella, bearshare); and

(c) Usenet or freenet

iii. Which does not have scrubbing software installed and does not save files in an encrypted fashion.

B. On any other telecommunications device under the direct and constant supervision of any person approved of in writing by the Court; and

C. Where you are not self-employed, you may use or access the Internet or other digital network at your place of business, for business purposes and in accordance with IT and other policies at your place of business.

Ducharme J.

Released: January 29, 2021

COURT FILE NO.: CR-18-30000705-0000

DATE: 20210129

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

• and –

CORNELIUS JONGSMA

REASONS FOR SENTENCE

Ducharme J.

Released: January 29, 2021

[^1]: “In addition to child luring, other sexual offences against children described in the Criminal Code include the following: bestiality in presence of or by child (s. 160(3)); making child pornography (s. 163.1(2)); distribution of child pornography (s. 163.1(3)); possession of child pornography (s. 163.1(4)); accessing child pornography (s. 163.1(4.1)); parent or guardian procuring sexual activity (s. 170); householder permitting prohibited sexual activity (s. 171); making sexually explicit material available to child (s. 171.1); agreement or arrangement to commit a sexual offence against child (s. 172.2(1)); exposure of genitals to a person under 16 (s. 173(2)); obtaining sexual services for consideration from person under 18 years (s. 286.1(2)); material benefit from sexual services provided by person under 18 years (s. 286.2(2)); procuring - person under 18 years (s. 286.3(2)).” Friesen, footnote 2.