Court File and Parties

COURT FILE NO.: CR-20-30000364 DATE: 20220318

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – EDWIN SUBIA Defendant

Counsel: Bryan Guertin, for the Crown Melanie Webb, for the Defendant

HEARD: February 24, 2022

Schabas J.

Reasons for Sentencing

[1] Following my ruling permitting the Crown to lead evidence of inculpatory statements by the accused, reported as R. v. Subia, 2021 ONSC 6628, the Crown submitted a statement of “Admitted Facts”, and the Crown and counsel for Mr. Subia invited me to find the accused guilty of three offences: (1) possession of child pornography contrary to s. 163.1(4) of the Criminal Code; (2) accessing child pornography contrary to s. 163.1(4.1) of the Criminal Code; and of attempting to obstruct justice contrary to s. 139(2) of the Criminal Code. I made those findings; however, as the Admitted Facts did not support it, I found the accused not guilty of distributing child pornography under s. 163.1(3) of the Criminal Code.

[2] The matter was adjourned for sentencing.

The Admitted Facts

[3] The Admitted Facts are as follows:

1. In August of 2019, law enforcement officials received a report from Kik instant messaging that a user had uploaded an image that was suspected of being child pornography on their Kik account. The IP address that was used to upload the image was registered to the address of 39 Snowball Crescent in Scarborough, Ontario.
2. Officers from the Toronto Police Service's Child Exploitation unit obtained a search warrant for 39 Snowball Crescent to search for electronic devices at that residence. Mr. Edwin Subia lived at 39 Snowball Crescent with his family.
3. Officers from the Child Exploitation unit attended at 39 Snowball Crescent on September 11th, 2019 shortly after 6:00 a.m. to execute the search warrant. The officers knocked on the door of the residence and announced that they were police officers who were there to execute a search warrant. It took several minutes before the door was answered by one of the occupants of the home. Officers then entered the home.
4. Mr. Subia was on the second floor of the home when police officers had arrived and entered the home. Det. Earle Davies and DC Stephen Mailer went upstairs and spoke to Mr. Subia. Mr. Subia was nervous and sweaty. Det. Davies noticed that Mr. Subia was looking back towards a nightstand where there was a cell phone charger, but no cell phone.
5. Officers searched the residence. During the search, DC Brendan Alexa found a Samsung Galaxy A8 cell phone ("Mr. Subia's phone") submerged in the toilet tank of the upstairs bathroom. The bathroom was next to Mr. Subia's bedroom. DC Sushil Saini photographed Mr. Subia's phone as it was found and then removed it from the water. Moisture was detected in Mr. Subia's phone. DC Saini dried out the phone using towels. The Samsung phone was Mr. Subia's personal cell phone. Mr. Subia had submerged his phone in the toilet tank water before the police had entered the residence, after he had become aware that the police were at his house to execute a search warrant. Mr. Subia was trying to hide his phone from police and was attempting to destroy evidence on his phone.
6. Mr. Subia's phone contained images that meet the Criminal Code definition of child pornography. Mr. Subia had accessed and possessed child pornography images while using his phone.
7. DC Saini, an expert Computer Forensic Examiner, examined the data on Mr. Subia's [phone] on two separate occasions. During the first examination (September 11, 2019), DC Saini was only able to extract partial data from the phone due to software limitations. That examination confirmed that there had been child pornography accessed and stored on Mr. Subia's phone. During the second examination (December 8, 2020), DC Saini was able to extract a more fulsome amount of data from the phone and he found more of child pornography.
8. Det. Earle Davies used LACE Carver software to review the images and videos from Mr. Subia's phone. Mr. Subia's phone had evidence of 3396 unique images of child pornography and 5416 duplicate images of child pornography on it, for a total of 8812 images of child pornography. The images were spread over multiple file and folder locations, including in the trash folder, the cache of the photo gallery, the download folder, and the browser cache folder.
9. The majority of the images on the phone had been deleted from the phone by Mr. Subia but DC Saini had been able to recover the images and to confirm that they had been stored on the phone. Mr. Subia had software on his phone ("CCleaner") that is used to delete traces of data on phones.
10. A representative sample of the child pornography images possessed by Mr. Subia will be presented to the court and entered as an exhibit for consideration on sentencing.

Evidence on Sentencing

[4] At the sentencing hearing, the Crown submitted a number of exhibits as evidence, which I discuss below.

The Images

[5] The Crown filed a summary of the kinds of images found on Mr. Subia’s phone, as well as written descriptions of eight images which were described as “representative samples.” Mr. Subia’s counsel does not take issue with the accuracy of the summary and descriptions. In addition, the Crown provided me, under seal, with a USB key containing those eight images, and asked me to review them. As I will discuss below, I have declined to review the images and have returned the sealed USB key to the Crown.

[6] The descriptions of the images are very disturbing. However, as Strathy C.J.O. has stated, it is necessary to describe the images “in a degree of detail that is graphic and disturbing, in order to have a full appreciation of the nature and gravity of the appellant’s admitted conduct”: R. v. J.S., 2018 ONCA 675 at para. 4.

[7] According to the summary provided by the Crown, the material contained images of the following kinds of sexual abuse:

• Male adults sexually abusing children
• Female adults sexually abusing children
• Children sexually abusing other children
• Bestiality
• BDSM including handcuffed children, bound children, children experiencing pain, and children wearing facial coverings
• Children performing sexual acts while "marked" Ex: "Fuck Me" written on child's chest
• Anal and vaginal insertions of objects into female children
• the sexual abuse of children as young as infants to under eighteen years of age
• 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 modelling.
• The collection contains predominately female children.

[8] The descriptions of the eight “representative images” provide more specific details, noting that some of the images involve children as young as one year old, several between the ages of two and five years old, and others who appear to be between six and nine years old. These infants and children are described as being subjected to, among other things, vaginal and anal penetration by penises, and oral sex. As described, the conduct in the images is extremely degrading, violent and horrifying.

[9] During sentencing submissions, I questioned the need for me to review the images and received submissions on that issue from both counsel. The defendant took the position that it was not necessary for me to view the images. I accepted the USB key, under seal, but made clear that I was reserving my decision on whether I would view them and make them part of the Court file.

[10] In requesting that I review the images, the Crown relied on R. v. P.M., 2012 ONCA 162, and R. v. Moore, 2021 ONCJ 192, submitting that the images should ordinarily be viewed by the sentencing judge. However, in each of these cases the trial judge did not view the images.

[11] In P.M., the trial judge did not view a disc containing a sampling of the child pornography possessed by the accused, and the Court of Appeal did not find that he erred in not doing so. In that case, as summarized by the Court of Appeal at paras. 16-17, the trial judge found that “it was not necessary for him to view the video to properly understand and comprehend the impact of the acts of the respondent.” In reaching this conclusion the trial judge referred to his prior experience as counsel to the Children’s Aid Society for 15 years, and as a trial judge for 20 years during which time he said he “had viewed countless videos of a similar nature and worse, such as a three year old child being subjected to full intercourse.”

[12] The Court of Appeal noted that the trial judge also “took into account that the respondent had admitted his behaviour and, in specific terms, had accepted the facts as alleged by the Crown.” The trial judge considered that “the prejudicial effect of the viewing to the victim far outweighed the probative value to the court ‘being mindful of the sensitivity of the complainant/victim in this matter and the awareness of the Court of the nature and circumstances of what is in that video’.” He concluded as follows (as quoted by the Court of Appeal at para. 17):

In my view, it would not serve the ends of justice in the totality of my considerations for me to necessarily view the contents of that CD in open court, even were I to exclude most of the public. I am satisfied that the Court is properly apprised of the nature and circumstances of the impact, bearing in mind, particularly, the reports that have been prepared for pre-sentence purposes and having read both the letters from the victim and her mother as well.

[13] I appreciate that the Court of Appeal stated in P.M., at para. 31, that “ordinarily the judge should view this kind of evidence if asked to do so”, and that this was also the view of the Alberta Court of Appeal in R. v. Hunt, 2002 ABCA 155 at para. 16. However, the Court of Appeal also agreed with the approach of the sentencing judge in P.M. who engaged in weighing the probative value and the prejudicial effect of considering such evidence.

[14] Adopting that approach, I find that the probative value of viewing the images in this case is very limited, and is outweighed by the prejudicial effect of viewing them.

[15] As is well established, and reiterated in victim impact statements in this case, one of the terrible impacts of child pornography is that, especially in the age of the internet and digital technology, the images can never be erased and may continue to be accessed and viewed indefinitely: see, e.g., J.S. at para. 120. It is devastating to victims to know that their images are continuing to be viewed by others. As Band J. stated in Moore at para. 10, “each viewing of child pornography is an instance of victimization of those portrayed in it.” A judge on a sentencing hearing would not be viewing the images for sexual purposes; nevertheless, the images would be viewed again, and this is something to be avoided as much as reasonably possible.

[16] Furthermore, if viewed by a judge the images must become a part of the court record. Although the images will be sealed in the court file, the fact that they are placed in the court file raises a concern, albeit remote, that the images may be viewed by others.

[17] In P.M. and Moore the trial judges did not find it necessary to look at the images for a number of reasons. This included, in both cases, the judge’s prior experience of having viewed such images. However, other factors in those cases included admissions by the accused as to the nature of the images which were provided to the court, the prejudicial impact on the victim or victims from viewing them, as well as other information to be considered by the trial judges such as victim impact statements and pre-sentencing reports.

[18] In Moore, at para. 5, Band J. referred to the “trauma that justice system participants can suffer by being repeatedly exposed to disturbing material like the kind of child pornography that is in issue in this case.” Justice Band included himself, as a judge, as a “courtroom participant who ought to be protected from “unnecessary (re-)exposure to potentially trauma-inducing raw material.” Justice Band expressed a similar view in R. v. Shaw, 2018 ONCJ 61 at paras. 29 – 31, in which he stated:

In my experience in the criminal courts, child pornography involves the kind of traumatizing imagery that can affect even those of us who believe we are so-called “thick-skinned”, or that we have “seen it all.” The effects can be serious and lasting. They can, in combination with others, have serious impacts on our mental and physical health and on our relationships.

In our profession, and others, direct and vicarious trauma are topics that are rightly becoming the topic of study and discussion. This discussion must continue.

I also want to commend the Crown attorney for not taking the tack that some of her colleagues have in the past. That is, to present and file a “representative” set of images in the context of sentencing proceedings in which the nature and quality of that imagery is not even at issue. In my view, the costs of doing so over the long-term outweigh the perceived benefits. Not just for the players — that is the parties and the judges — but also for court staff.

[19] Society’s understanding of the many ways in which people can be traumatized, has evolved in recent years. The courts are alive to the fact that judges, jurors and other justice system participants can be traumatized by horrific images, videos, or descriptions of events that arise in criminal cases. Some find it necessary to seek treatment for that trauma. While exposure to such material cannot be avoided in some cases, it does not need to be invited. Where exposure to material that can cause trauma can be avoided because it is not necessary for the decision maker to see it, or where the probative value is limited, in my view judges should be reluctant to expose justice system participants, including themselves, to such material.

[20] In R. v. Kwok, 2007 ONSC 2942, Molloy J. made an observation quoted by the Court of Appeal in P.M. at para. 33, that “[w]hile the description in words of such disturbing images is shocking, nobody can fully appreciate the sickening horror of such pornography without actually looking at it.”

[21] In Kwok, the accused pleaded not guilty and it does not appear that there was any agreed description of the contents. It was, therefore, necessary for the trial judge to view the material. Molloy J. described the images, noting that many of them were “graphic depictions of actual rape by an adult male of a small child”, many involved children “trussed and bound like animals while they are being violated”, and were videos which “contained real-time footage of the actual rape and degradation of young children and babies.” Such descriptions are, of course, horrifying. Viewing them would be traumatic and impossible to forget.

[22] In J.S. at para. 51, the Court of Appeal again cited Justice Molloy’s observation in Kwok, this time in the context of showing deference to a trial judge’s sentencing decision, commenting that, having viewed the material “the trial judge had an appreciation of the evidence that this court does not have.” The material was presumably available to the Court of Appeal which, understandably, did not review it.

[23] The horror and devastating effects of sex crimes against children on the victims, their families, and society has been clearly recognized by the courts. This includes the Supreme Court decision in R. v. Friesen, 2020 SCC 9, which discussed in detail, at paras. 50-73, the extraordinary, devastating and lasting harm caused by sexual offences against children, including the making and distribution of child pornography.

[24] Many factors are considered by judges in sentencing an accused. They include, among other things, the nature of the offence, the circumstances of the accused, mitigating and aggravating factors, consideration of principles set out in the Criminal Code. In a case such as this I must also include consideration of the comments of the Supreme Court in Friesen on the horror and harmfulness of sex offences against children.

[25] In many cases involving horrific crimes there are no images or videos of the commission of the offences. Courts rely on descriptions from witnesses. In sentencing decisions, judges provide reasons describing the offence, whether based on descriptions of images or having seen them, which may then be relied on by other judges in applying the principle in s. 718.1(b) of the Criminal Code that “a sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances.” In child pornography cases, sentencing decisions describe, to some degree, as I have above, the nature of the images in order to address the gravity of the offence. Judges must rely on descriptions in other cases to determine which cases are “similar”; they do not view or have access to the images in those cases, nor do they require them. In this context where, as here, I have been provided with descriptions which are not in dispute, viewing the images will not enhance my ability to assess the gravity of the offence in comparison to other cases in which I cannot view the images.

[26] In this case the parties have agreed on detailed descriptions of a representative sample of the images and there is no dispute that they are on the serious end of the spectrum of child pornography. In these circumstances, I see no need to view the images in order to “fully appreciate the sickening horror” of the images in order to impose a just sentence on the accused. Nor do I believe that the decision to view the images should turn on whether a judge has seen these types of images in the past. Rather, it should turn on the circumstances of the case and whether viewing them will provide the judge with more assistance in reaching a conclusion on an appropriate sentence, having regard to the many factors that must be considered in sentencing an individual, and after weighing the probative value and prejudicial effects of viewing the images.

[27] In Moore, the trial judge listed a number of reasons, at para. 10, why he declined to view the images, only one of which was that he had been exposed to similar material previously. Band J.’s reasons included that there was agreement on the description of the material and how it should be characterized, that he had no concerns he would “misconstrue its nature”, that “each viewing of child pornography is an instance of victimization of those portrayed in it”, and that based on his experience and “the guidance provided by the Supreme Court of Canada and the Ontario Court of Appeal” he understood “the horrors and devastating effects of this kind of offence on children, families and communities.”

[28] I come to the same conclusion in this case. In light of the agreement on the descriptions of the images and how they should be characterized, I have no concerns that I will misconstrue the nature of the material. From those descriptions of the images and the guidance of the Supreme Court in Friesen, as well as from the victim impact evidence I have heard in this case which I discuss below, I have an understanding of the horrors of this material and the harm it causes. Consequently, viewing the images will be of little, if any, probative value to me in reaching my conclusion on an appropriate sentence. Further, viewing the material has prejudicial effects on victims and justice system participants which should be avoided if possible and which outweigh any probative value that seeing the images might have.

[29] One further consideration is the prejudicial effect of viewing the images on public understanding and scrutiny of the courts, and the decisions we make as judges. In this case, as in others, the Crown has asked that I review the images and that they then be sealed in the court file. Undoubtedly, if I had admitted the images and viewed them, they must be sealed as, among other things, it is illegal for them to be viewed by others. In such circumstances, I would be making a decision potentially influenced by material that cannot be seen by the public, limiting public scrutiny of the appropriateness of my decision. This raises concerns about the open courts principle, a foundational principle of our justice system protected by s. 2(b) of the Canadian Charter of Rights and Freedoms. This principle requires that courts must be “seen by all to operate in the penetrating light of public scrutiny”: Edmonton Journal v. Alberta (Attorney General), [1989] 2 SCR 1326.

[30] In my view, the importance of the open court principle requires that I be cautious about receiving evidence which, as in this case, cannot be viewed by the public. In my view, when a judge is asked to receive evidence that must be sealed from the public it is appropriate to question the necessity of the evidence and to consider its probative value having regard to the prejudicial impact on the public’s right to know. I recognize that there are many circumstances where it is necessary to receive evidence which must be sealed, but this case is not one of them. Accordingly, as these types of images must remain sealed from public view, weighing the probative value and prejudicial effects of admitting such material should include consideration of the prejudicial impact on the transparency of the justice system.

[31] My discussion of this issue should not be taken to suggest that judges should never view such material. As judges, we view and judge horrific crimes, including videos and images of violent crimes as necessary evidence at trials. This may cause trauma, but it is part of the job. In child pornography cases where there is no agreement about the nature and contents of the images, including whether they constitute child pornography or how they should be characterized on the spectrum of such material, it may well be necessary for judges to view the material at trial or when considering sentence. But in other circumstances it is not necessary, such as in this case where descriptions of the material and its characterization are not in dispute and the prejudicial effects of viewing the material outweigh its probative value.

Victim and Community Impact Statements

[32] The Crown filed victim impact statements provided by the Canadian Centre for Child Protection Inc., a registered charity that is “aimed at reducing all forms of child victimization, including victimization through the creation, distribution and viewing of child sexual abuse material.” This organization has victim impact statements from victims, or their parents or guardians, who have been identified in the images in this case. Using pseudonyms, this included victims known as “Sierra”, “Savannah” and “Skylar.” I admitted statements from the mothers of these victims.

[33] I also admitted a statement from a group of victims known as the “Phoenix 11”, who have met and prepared a collaborative “community impact statement” describing the life-altering impact of the abuse they suffered, and of the continuing impact it has on them.

[34] These statements were submitted in writing, which were made exhibits. The Crown also played videos of the statements in open court. The Crown then asked that the videos be made exhibits but kept under seal due to the concern that the victims might be able to be identified by their voices. As the public had the ability to see the statements played in open court as if they came from live witnesses, and there was limited evidence that the videos, in which the images of speakers were shaded, would lead to identification, I indicated that I was not inclined to seal the videos, and the Crown therefore did not pursue having them marked as exhibits.

[35] These statements were powerful and moving, describing the trauma and damage caused to victims of child sexual abuse and the life-long impact of the knowledge that there are images of them being subjected to such abuse which will never disappear, and which could surface in their lives again at any time. The impact includes emotional trauma, anxiety, fear of being in public, fear of cameras, inability to use social media, distrust of others and inability to form healthy relationships, self-harm and suicidal ideation, as well as other psychological, physical and economic harm to the victims.

[36] Pursuant to s. 722.2(1) of the Criminal Code, the Crown also filed a lengthy community impact statement prepared by the Canadian Centre for Child Protection providing additional information “about the types of harm or loss generally suffered by members of the community as a result of individuals who make, access, possess, make available and/or distribute such material.” Much of the statement contains statistical evidence of the impact of child sexual abuse imagery derived from a survey.

[37] The defendant objected to this statement, questioning its utility in light of the clear guidance from the Supreme Court about the seriousness and impact of child sexual offences. Counsel for the defendant noted that the statement is generic, not specific to this offence or offences, and that the statistical data has not been proven and has little probative value. Reliance was placed on the decision of Davies J. in R. v. Mootoo, 2022 ONSC 384, who expressed concerns with the admissibility of the statement which she described as “essentially an expert report…written by a lawyer” that cannot be tested by the defendant.

[38] The Crown’s position is that the statement’s purpose is to give the court evidence of the pervasiveness of child pornography and of the impact it has on families and the community at large, noting that this was recognized in Friesen at paras. 62 and following under the heading “Harm to Families, Communities, and Society.” The same statement was admitted in R. v. Jonat, 2019 ONSC 1633, in which the defence objected to its admissibility. [1]

[39] Like Dunphy J. in Jonat, and Davies J. in Mootoo, I recognize there are concerns with the admissibility of statistical evidence, and that there is an element of advocacy in the statement akin to what is often seen in expert reports. I have admitted the statement but have ignored the statistical evidence and given the rest of it little weight.

[40] I rely instead on the clear guidance of the Supreme Court in Friesen that judges must recognize the serious harm of sexual offences against children on them, their families, and their communities, and the need for sentences to reflect that harm. At the outset of its decision, in para. 5, the Supreme Court called for sentences for these kinds of offences to increase to reflect the fact that “ sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities”, in order to ensure that sentences are “proportional to the gravity of sexual offences against children… 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, the Court stated, “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.”

Criminal Record

[41] The Crown also filed the accused’s criminal record, which contained a conviction for accessing child pornography in 2016 arising from charges in 2015. Mr. Subia was sentenced to 6 months in jail and to 2 years’ probation. He was in custody until April 2017, and on probation until April 2019. As the Crown observed, the accused was charged with this offence less than a year after his probation ended.

The Circumstances of the Accused

[42] Mr. Subia is 35 years old. He was 33 at the time of the offences. A detailed report from a psychologist sets out his history. Mr. Subia came to Canada from Ecuador with his mother and stepfather when he was five years old. He struggled in school with learning disabilities and was bullied. After completing high school he obtained a diploma in computer technology from a community college, but was unable to secure a permanent job in that field. He worked in a warehouse and as a security guard, but has struggled in the workplace, feeling anxiety and inadequacy. Since June 2019, he has been unemployed. He struggles with low self-esteem, lives with his parents and obtains financial assistance from Ontario Works.

[43] Mr. Subia has no violent tendencies, or issues with drugs or alcohol. He received counselling following the charge in 2015 and again in 2020 following his arrest on the current charges. More recently, he has attended a number of sessions with a psychotherapist. He has had suicidal thoughts and has engaged in self-harm. He feels embarrassed and ashamed by his conduct, something I observed when he was being interrogated by the police. He takes responsibility for his actions and has an understanding of the harm caused by child pornography. He appears motivated to pursue additional treatment. Nevertheless, he has pedophilic tendencies and is described as being a moderate risk to re-offend.

[44] Mr. Subia has a supportive family. His mother and step-father are committed to supporting him and helping him. They are a close family and describe Mr. Subia as a kind and generous person.

Aggravating and Mitigating Factors

[45] Aggravating factors in this case include:

• The size of the collection of images is relatively large, and would have taken quite some time to collect;
• The nature of the collection, including images of infants and a full range of sexual abuse such as intercourse, bondage and bestiality puts it on the high end of the spectrum of abusive material;
• Mr. Subia’s phone had software to delete images;
• He attempted to destroy the evidence when the police searched the house;
• The prior criminal record of the accused for a similar offence; and
• Mr. Subia is a moderate risk to re-offend.

[46] Mitigating factors include:

• The collection did not include videos, which are said to be more serious;
• Mr.ia was cooperative with the police and provided his passwords during questioning;
• He expressed remorse immediately and has demonstrated a desire to seek treatment;
• He conceded the Crown’s case following the pre-trial motions;
• He has support from a psychotherapist who is prepared to work with him upon his release; and
• He has a supportive family and home.

Positions of the Parties and Appropriate Sentencing Range

[47] The Crown submits that the circumstances of this case would generally deserve a sentence in the range of 3.5 to 5 years in prison; however, the Crown seeks a total of 3 years based on the possession charge. The Crown agrees that the accessing charge should be stayed pursuant to the rule against multiple convictions set out in Kienapple v. The Queen, [1975] 1 SCR 729. A sentence of 4 months is sought for the obstruction charge, to be served concurrently.

[48] The defendant submits that a sentence in the range of 18 months to 2 years less a day is appropriate.

[49] As set out in s. 718.01 of the Criminal Code, and emphasized in Friesen, sentences involving sexual offences against children must give primary consideration to the objectives of denunciation and deterrence. Further, given the Supreme Court’s direction in Friesen that sentences for such offences must increase, sentences imposed prior to that decision must be applied with caution.

[50] The Crown has provided me with a number of cases that it submits should inform my judgment and support a sentence of three years in prison. These include: R. v. Inksetter, 2018 ONCA 474; R. v. Walker, 2021 ONSC 837, appeal dismissed, R. v. Walker, 2021 ONCA 863; R. v. Jonat, 2019 ONSC 1633; R. v. Murty, 2021 ONSC 2801; and R. v. Boodram, 2018 ONCJ 159, appeal dismissed, R. v. Boodram, 2020 ONCA 618. Each of these cases dealt with child pornography and, with the exception of Inksetter, resulted in a sentence of 3 years in prison. However, these cases involved offences beyond possession and included making the pornography available to others. Some had large collections and videos.

[51] In Inksetter, the Court of Appeal observed that it involved “ one of the largest and worst collections of child pornography that the Ottawa Police Service had ever uncovered” – over 28,000 unique images and 1,144 unique videos were identified, although this was the tip of the iceberg. Inksetter also included a conviction for making the material available to others. A sentence of two years less a day imposed by the trial judge was increased to 3.5 years.

[52] The defendant relies on a number of different recent cases: R. v. Bekmambetov, 2021 ONSC 6219; R. v. Jenkins, 2021 ONSC 2963; R. v. Mootoo, 2022 ONSC 384; and R. v. Rule, 2021 ONCJ 264. I was also referred to a number of pre-Friesen cases including: R. v. Pahle, 2019 ONSC 7596; R. v. Fitzpatrick, 2019 ONSC 2407; R. v. Shaw, 2018 ONCJ 61; R. v. Coxhead, 2018 O.J. No. 4042 (SCJ); R. v. Despot, 2018 ONCJ 556; R. v. Masho, 2017 ONCJ 337; and R. v. Mack, 2014 ONCJ 29.

[53] Of course, no case is identical, but many of these cases involved first offences with comparable or fewer images. The decisions which pre-date the release of the Reasons of the Supreme Court in Friesen on April 2, 2020, must, as I have indicated, be applied with caution.

[54] One case common to both parties’ submissions is Walker. That case involved fewer images, but included videos, and included a conviction for making the material available on a file sharing platform. The accused was a 46 year-old first offender who had been employed until around the time of his charges, and had the support of family and friends; however, he showed limited, if any, insight into the seriousness of the offences. In upholding the three-year custodial sentence the Court of Appeal observed, at para. 7:

The trial judge was mindful of the admonition in R. v. Friesen, [citation omitted] that sentencing judges must impose sentences commensurate with the gravity of sexual offences against children and that reflect the consequential harm to children. The trial judge carefully assessed the Friesen factors and noted that the appellant’s case fell on the high end of the “frequency” factor because he placed the material on a peer-to-peer file sharing platform for anyone to obtain, review, and redistribute. In addition, the trial judge found that the victims’ ages were a particularly aggravating factor in this case because the children were prepubescent, with some appearing to be toddlers. Finally, the trial judge also found the degree of physical interference to be great because the material depicted digital and penile penetration, penetration by objects, fellatio, and aggression.

A Fit Sentence

[55] I have reviewed all of the cases provided and considered the various aggravating and mitigating factors in each of them. I found particularly helpful the decisions of J.E. Kelly J. in Bekmambetov, which resulted in a penitentiary term of two years on a first offence, and Jenkins, in which a sentence of 18 months was imposed. I have also been informed by the other post-Friesen decisions provided to me by the Crown which would support a penitentiary term including, in particular, the Court of Appeal decision in Walker.

[56] Unlike some of the cases in which a 3-year sentence has been imposed, Mr. Subia is not charged with distributing child pornography but, on the other hand, this is his second offence. The size of the collection, the nature of the images and the age of the children involved, the fact that Mr. Subia is a repeat offender, and that he is a moderate risk to re-offend, all support a significant sentence similar to those cited by the Crown. While Mr. Subia’s circumstances are somewhat sympathetic, and he seems to be motivated to work to avoid committing such crimes in the future, I must give effect to Parliament’s direction in s. 718.01 of the Criminal Code that offences of this kind must be denounced, and I must give weight to the gravity and seriousness of such offences as stated in Friesen, at para. 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 (see M. (C.A.), at para. 80; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 35). We thus offer some guidance on how courts should give effect to the gravity of sexual offences against children. Specifically, courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and (3) the actual harm that children suffer as a result of these offences. We emphasize that sexual offences against children are inherently wrongful and always put children at risk of serious harm, even as the degree of wrongfulness, the extent to which potential harm materializes, and actual harm vary from case to case.

[57] As the Court also noted at para. 90 of Friesen, “the intentional sexual exploitation and objectification of children is highly morally blameworthy because children are so vulnerable.”

[58] I have also considered the impact of COVID-19; however, the impact of the pandemic is in my view more significant as a factor in taking into consideration time served and in deciding whether someone should be given a custodial term at all. Mr. Subia spent only one day in custody upon his arrest. Further, in this case there is no question that Mr. Subia must be incarcerated. As well, it appears that COVID-19 is entering the endemic phase and institutions are addressing it. Any continuing impact of COVID-19 may be addressed on an application for parole.

[59] Having regard to the sentencing principles found in ss. 718, 718.01, 718.1 and 718.2 of the Criminal Code, the relevant case law including the Supreme Court’s decision in Friesen, the nature and impact of the offences and the aggravating and mitigating factors I have identified, a fit sentence in this case is 3 years in prison.

[60] Accordingly, for the possession charge, I sentence Mr. Subia to three years in custody. I impose a sentence of 4 months for the obstruct justice charge, to be served concurrently. The charge of accessing child pornography shall be stayed.

Ancillary Orders

[61] The Crown’s request for ancillary orders, including conditions proposed by the Crown under s. 161(1)(d) of the Criminal Code, is consented to by the accused other than the length of the orders under s. 161(1). Mr. Subia also requests that his computer, which was seized and did not contain any illegal images, be exempted from a forfeiture order and returned to his mother.

[62] With respect to the length of the orders under s. 161(1)(a)-(d), the Crown seeks a 20-year duration, while the defence proposes 15 years. There is no question there is a basis for the orders as Mr. Subia has pedophilic tendencies and is a moderate risk to re-offend. On the other hand, he appears to have an appreciation of the wrongfulness of his conduct and is motivated to seek treatment to avoid re-offending in the future.

[63] I have considered the recent decisions in R. v. R.J.H., 2021 BCCA 54, and R. v. Durigon, 2021 ONCA 775. Those decisions observe that 15 years is a substantial period of time, as indeed it is. In the circumstances, I find 15 years to be an appropriate duration for the orders made under s. 161(1).

[64] Accordingly, I make the following ancillary orders:

(a) There shall be a forfeiture order under s. 164.2 of the Criminal Code of all items seized by the police other than the accused’s laptop computer which shall be returned to Mr. Subia’s mother;

(b) The accused shall provide a sample of his bodily substances as may be required for forensic analysis pursuant to s. 487.05(1) of the Criminal Code;

(c) The accused shall comply with the requirements of the Sex Offender Information Registration Act, S.C. 2004, c. 10, for life, pursuant to ss. 490.012 and 1490.013 of the Criminal Code; and

(d) The accused shall be prohibited, for 15 years, from:

i. You may possess an internet capable device and use it to access the internet in accordance with the conditions below; however, you must do so on a device for which you are the sole owner and user. Further, the internet service must be in your own name or else provided through your employer or the education institution you are attending, if applicable.

ii. You may not access the internet using public wi-fi services, internet cafes, or via shared public computers (e.g. computers at a public library).

iii. Except as outlined in writing by your employer for legitimate work purposes, 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. Except as outlined in writing by your employer for legitimate work purposes, 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.

iv. Except as outlined in writing by your employment for legitimate work purposes, 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 (e.g. TOR browser).

v. You shall not use or permit to be installed on any device in your possession any scrubbing software or software that saves files in an encrypted fashion.

vi. You are not to directly or indirectly access any Peer-to-peer file sharing networks (including but not limited to motherless, LimeWire, gnutella, bearshare).

vii. You are not to use "Kik Messenger".

viii. You are not to use any telecommunication device to access the Internet or other digital network in order to possess or access content that violates the law.

Paul B. Schabas J.

Released: March 18, 2022

COURT FILE NO.: CR-20-30000364 DATE: 20220318 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – EDWIN SUBIA, Defendant REASONS FOR SENTENCING Schabas J. Released: March 18, 2022

[1] In Jonat, the defence also objected to the “Phoenix 11” statement.