COURT FILE NO.: CR-18-137
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
THOMAS REID
Defendant
Hanieh Azimi for the Crown
Daniel J. Brodsky for Mr. Reid
HEARD: Sentencing Submissions on April 11, 2022
reasons for Sentencing
C. Boswell j. (Orally)
OVERVIEW
1Following a seven-day trial, I convicted Mr. Reid, on January 27, 2022, of the offences of possession of child pornography and accessing child pornography. I acquitted him of making child pornography available to others.
2I was satisfied that Mr. Reid possessed more than 2,000 videos and over 4,000 images constituting child pornography on a number of hard drives seized by the police from his home office. It would appear that his preferred means of acquiring child sexual abuse material was by way of searches conducted on peer-to-peer file sharing networks.
3Much of Mr. Reid’s collection was organized by genre in a structure of files on one particular hard drive. It contained a wide range of images and videos depicting children, both male and female, some I would say as young as one or two, engaged in all manner of sexual activity, sometimes with other children but mostly with adults, including stripping, masturbation, oral sex and intercourse.
4On April 11, 2022 I heard counsel’s submissions on sentence. The following reasons explain the sentence imposed today.
THE CIRCUMSTANCES OF THE OFFENCE
5Mr. Reid’s IP address was identified as being associated with the sharing of known child pornography files across a peer-to-peer network by an officer of the OPP child exploitation unit. Using a law-enforcement version of widely available peer-to-peer client software known as ShareazaLE, the OPP was able to communicate with one of Mr. Reid’s computers, which was running another type of widely available peer-to-peer client software named CruxP2P.
6The OPP was able to obtain, through a single-source download from Mr. Reid’s CruxP2P program, a full copy of a video file I will refer to briefly as the “Tropical Cuties” file. It is a video that depicts adult males engaging in a variety of sexual activity with two young females, estimated to be between the ages of 10 and 12.
7Through further investigation, the police were able to identify the location of Mr. Reid’s IP address. They obtained and executed a search warrant at his residence. During the search they seized fourteen digital devices. On those devices they located roughly 2,500 unique videos and over 4,000 unique images of child pornography.
8Not all of the videos and images were shown in court of course. A sample was provided as a proxy for the whole. The jurisprudence requires that I provide a description of that sampling. See R. v. J.S., 2018 ONCA 675, at para. 4. The sample of videos provided to the court consisted of the following:
(a) A video partially entitled “Lolita-Sf-1Man” which depicts a young female, probably 13-15 years old, performing fellatio on an adult male;
(b) The Tropical Cuties video which I have already described;
(c) A video partially entitled “Well Hung Boy 7Yo Fucks Girl 13 Yo and other Kiddies”, which includes a number of scenes. In one, a young female, perhaps 10 years old, performs fellatio on an adult male, who subsequently penetrates her. In another, a young boy, perhaps 6 or 7 years old, has intercourse with the same young female;
(d) A video partially entitled “Webcam-12YO Vichatter” which depicts a young female, perhaps 9 -11 years old, dancing provocatively and stripping;
(e) A video partially entitled “Preteen Poland Boys And Man” which depicts two naked boys on a bed. One is perhaps 14 and the other is perhaps 7-8. They perform fellatio on each other, then the older boy attempts to have anal intercourse with the younger boy;
(f) A 21 second video of a girl, maybe 8-9, masturbating an erect penis. The male ejaculates on her face;
(g) A 43 second video of a young girl laying on a bed. An adult male is masturbating onto her face;
(h) A 38 second video of a young girl, age 3-4, sitting on a bed, vigorously masturbating an adult male;
(i) A 3 minute, 35 second video of a young naked girl, maybe 4-5 years old, in various poses and activities. At one point she is laying face down on a couch with her bare bottom and vagina in the air. Later she is nude and ironing;
(j) A 2 minute, 13 second video of a naked girl, aged 9-11, sitting on a couch. She removes her top and underwear;
(k) A 14 minute, 16 second video of a young child, aged 2-3, being penetrated. The video switches to another young child being penetrated, then a young girl fellating an adult male. It continues with a young girl on a tricycle naked from the waist down with the camera focused on her bottom and vagina. Later an adult male is penetrating a 1-year-old and ejaculating, then there is more penetration of another young child;
(l) A 13 minute, 30 second video of a young girl’s soapy bottom with male fingers penetrating her. The girl is maybe 6 or 7. Later a young female is being penetrated by a man’s penis;
(m) A 9 minute, 52 second video that starts with an adult male performing oral sex on a young female laying on a bed. She is about 8-10 years old. The male uses his hand to rub her vagina. Later she performs fellatio on him;
(n) A 1 minute, 22 second video of a male standing up, while a young female, aged 8-9, performs fellatio on him;
(o) A 12 second video of a young female laying on her back while an adult male rubs his penis on her face;
(p) A 55 second video of a young female child, maybe 2-3 years old, performing fellatio on an adult male;
(q) A 4 minute, 34 second video of a young girl performing fellatio on a seated, adult male. The girl is approximately 4 or 5 years old;
(r) A 1 minute, 26 second video of a young girl standing in a bathtub performing fellatio on an adult male standing beside the tub. The girl is 2-3 years old;
(s) A 2 minute, 44 second video of a young girl kneeling and performing fellatio on an adult male. She is 5-6 years old and clothed at the beginning of the video. Later she is laying back naked while the male spreads her vagina with his fingers;
(t) A 4 minute, 7 second video of a young female, clothed, performing fellatio on an adult male who is laying back. Near the end of the video, the male is having intercourse with the female;
(u) A 7 minute, 30 second video of a young girl, perhaps 2 years old. There is a naked, adult male on top of her. She is stroking his erect penis. A the 6:50 mark, the female is laying on top of the male and his penis is rubbing between her legs until he ejaculates;
(v) A 1 minute, 5 second video of an adult male trying to penetrate a female, 1-2 years old. He ejaculates on her stomach;
(w) A 3+ minute video of a young girl, age 4-5, sitting naked on a bed reading a magazine. Her legs are pulled up so her vagina is emphasized. At the 3:09 mark, a male lays naked beside her and rubs her vagina with his hand. Then she stands and the male lays down under her and lifts his head up to lick her vagina;
(x) A 47 minute, 42 second video which includes a young female, about 10 years old, laying in the back seat of a car, with no pants on, while an adult male inserts a finger into her anus. Later an adult male is rubbing his penis on her vaginal/anal area. By about 20 minutes in, the video shows a different young female, maybe 4 years old. She is laying naked on a bed with her legs spread. Five minutes later, another young female is shown, naked from the waist down while a male licks her vagina. Finally, an adult male is attempting to penetrate a young female who is on her back, naked from the waist down;
(y) A 4 minute, 17 second video showing a young female wearing a mask, performing fellatio on an adult male who is sitting on a couch. The girl appears to be maybe 4 or 5 years old;
(z) A 19 minute, 51 second video which begins with a young female, nude, lying on her back, with a male kneeling above her head pushing his penis towards her mouth. She is maybe 6 or 7 years old. At the 9-minute mark, a young female is beside a reclined male, performing fellatio on him;
(aa) A 6 minute, 41 second video of a nude adult male penetrating a young female from behind. She is about 10 years old. Later she performs fellatio on the male. The video ends with the male penetrating her vaginally; and,
(bb) A 3 minute, 54 second video of a young, clothed female masturbating an adult male. She looks to be about 4 years old.
9There were also 29 unique images displayed in court by way of example. I have listed them on Appendix “A” to this ruling.
THE CIRCUMSTANCES OF THE OFFENDER
10Mr. Reid is 66 years old. He is university educated and worked throughout most of his career in the publishing industry. He is now retired and living with his wife, who supports him.
11Mr. Reid has no criminal record and no prior involvement in the criminal justice system.
12He has been diagnosed with ischemic cardiomyopathy, which is a form of heart failure. As at April 9, 2021, however, he was not experiencing symptoms and, according to his treating cardiologist, had no limitations on ordinary physical activity.
13Mr. Reid testified that he has a sex addiction. More specifically, he has an insatiable appetite for pornography, though he maintained that his interests are confined to adult pornography. He testified that he has been attending Sexaholics Anonymous meetings regularly in an effort to manage his addiction.
14A number of individuals offered letters of support for Mr. Reid. They portray him as a kind, decent, socially active person who has a positive attitude and is unfailingly respectful of others. His counsel said he may be contrasted with the depraved characters evident in the cases relied upon by the Crown in its submissions on sentence.
THE IMPACT OF THE OFFENCES
15I appreciate that Mr. Reid did not directly abuse children and did not manufacture child pornography. But it is wrong to think that possessing child pornography is a victimless crime. As the Supreme Court noted in R. v. Friesen, 2020 SCC 9, at para. 48,
…[O]nline distribution of films or images depicting sexual violence against a child repeats the original sexual violence since the child has to live with the knowledge that others may be accessing the films or images, which may resurface in the child’s life at any time.
16The court in Friesen went on to describe some of the long-term effects associated with sexual violence against children, noting, at para. 81, that those effects include difficulty forming loving, caring relationships in adulthood, an increased likelihood of engaging in sexually abusive conduct towards children themselves, and an increased likelihood of struggles with substance abuse, mental illness, eating disorders, depression and self-destructive behaviours.
17Offenders who seek out and download child pornography enable its production. They contribute to the demand for and proliferation of child sexual abuse materials. They contribute to the ongoing abuse, exploitation and degradation of innocent and vulnerable children. See R. v. Murty, 2021 ONSC 2801, at para. 27. As Molloy J. observed in R. v. Kwok, 2007 2942, at para. 49, “the collectors of this filth are a vital part of the evil menace it represents and bear responsibility for its malignant growth right along with its creators.”
THE LEGAL PARAMETERS
18Pursuant to s. 163.1(4) of the Criminal Code, anyone convicted of possession of child pornography faces a maximum term of imprisonment of ten years and a minimum term of one year.
19Similarly, pursuant to s. 163.1(4.1) of the Criminal Code, a person convicted of accessing child pornography faces a maximum term of imprisonment of ten years and a minimum term of one year.
20Counsel are agreed that this court should not apply the statutory minimums on the basis that they have been struck down as unconstitutional.
21In R. v. John, 2018 ONCA 702, the offender was convicted of possession of child pornography under s. 163.1(4) of the Criminal Code. The offences occurred in early 2014. At that time, the applicable mandatory minimum sentence was six months. On July 17, 2015, the mandatory minimum was increased to one year in jail as a result of the coming into force of the Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, s. 7(2).
22The Court of Appeal struck down the mandatory minimum of six months on the ground that it was grossly disproportionate in at least one hypothetical case considered by the court. Pardu, J.A., who authored the decision, noted, however, that the mandatory minimum is entirely unnecessary given the emphasis of denunciation and deterrence in sentencing for offences involving child pornography.
23The Court of Appeal has not considered the constitutionality of the one-year mandatory minimum under ss. 163.1(4) and (4.1), but it stands to reason that if they found a six-month mandatory minimum to be grossly disproportionate, an increase of six months in that minimum is not going to bring it into constitutional compliance.
24A number of decisions of judges of this court have proceeded on the basis that the mandatory minimum sentences provided for in s. 163.1 of the Criminal Code have effectively been struck down. See R. v. Mootoo, 2022 ONSC 384, R. v. Boodhoo, 2018 ONSC 7205, R. v. Walker, 2021 ONSC 837 and R. v. Rytel, 2019 ONSC 5541. The principles of stare decisis and judicial comity dictate that I follow the decisions of courts of concurrent jurisdiction unless I view them as plainly wrong. See R. v. Sullivan, 2020 ONCA 333. I am not of the view that any of the aforementioned cases is plainly wrong and, in the result, will follow them. In other words, I will proceed on the basis that no mandatory minimum sentence applies.
THE POSITIONS OF THE PARTIES
25Counsel are agreed that the convictions for accessing child pornography should be conditionally stayed pursuant to the principles of R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729. Those principles hold that a person cannot be convicted of multiple offences arising from the same transaction or conduct where the elements of the offences are essentially the same.
26In this instance, counsel’s agreement is not based on an alignment of the essential elements of the offences, per se, but rather on the basis that, on the facts of this case, the conviction for possession subsumes the conviction for accessing. I accept counsel’s position and conditionally stay the conviction for accessing child pornography.
27With respect to the convictions for possessing child pornography, Crown counsel urges the court to impose a custodial sentence of three years, together with the following ancillary orders:
(a) An order compelling Mr. Reid to provide a sample of his DNA;
(b) An order that he be subject to the Sex Offender Information Registration Act for life;
(c) A forfeiture order with respect to the digital devices seized by the police; and,
(d) An order under s. 161 of the Criminal Code restricting Mr. Reid’s use of the internet and prohibiting him from being in specific areas or situations where he may have contact with children under the age of 16.
28The Crown submits that Mr. Reid had a substantial collection of child sexual abuse material that was organized and curated. The objectives of denunciation and deterrence call for a significant penitentiary sentence, the Crown says, particularly in light of the direction recently given by the Supreme Court in R. v. Friesen.
29Crown counsel cited a number of other Ontario cases she says are instructive about the length of sentence to be imposed here, including: R. v. Inksetter, 2019 ONCA 474; R. v. Murty, as above; R. v. Rule, 2021 ONCJ 264; R. v. Subia, 2022 ONSC 1693; and R. v. Walker, as above. I will refer to these authorities in more detail momentarily.
30Mr. Reid’s counsel takes the position that a penitentiary sentence is not called for or necessary in the circumstances of this case. Indeed, his position is that an appropriate sentence would be one of 10 to 18 months served conditionally. He submits that Mr. Reid’s moral blameworthiness is mitigated by a number of factors including: (a) he has no prior involvement in the criminal justice systems; (b) the offence was committed through recklessness, in that he lacked sufficient care as he targeted adult pornography for download; and (c) he has admitted to a problem with sex addiction and has taken steps to address that addiction.
31Mr. Reid’s counsel referred the court to cases where conditional sentences have been imposed, post-Friesen, on convictions for possession of child pornography, including: R. v. C.W.C.L., 2022 BCPC 54 and R. v. Dutchession, 2021 ONCJ 480. He also referred the court to a number of sentencing decisions, again all post-Friesen, that imposed sentences for possessing child pornography in the reformatory range, in other words under two years, including: R. v. Partenan, 2021 BCPC 245; R. v. Martin, 2021 BCPC 195; R. v. Snead, 2021 ONSC 7017; R. v. Rathwell, 2021 ABPC 254; R. v. Moore, 2021 ONCJ 192; and R. v. Jenkins, 2021 ONSC 2963.
32In terms of the ancillary orders sought, Mr. Reid only seriously contests the s. 161 order sought by the Crown, on the basis that there is no logical nexus between the impugned conduct engaged in by Mr. Reid here and any appreciable risk to children under 16 that he may encounter at parks or recreation centres.
DISCUSSION
The Principles and Purposes of Sentencing
33The objectives of sentencing are codified in s. 718 of the Criminal Code (“Cr. C.”) and include: the denunciation of unlawful conduct; general and specific deterrence; the separation of the offender from society where necessary; rehabilitation; reparation for harm done to the victims and the community; and the promotion of a sense of responsibility in offenders and acknowledgment of the harm done.
34The importance of these individual objectives, and how they interact, varies from case to case. It is well-settled that, in child pornography cases, the key sentencing objectives are denunciation and deterrence. See Friesen, at para. 101. See also s. 718.01 Cr. C.
35In pursuit of the recognized objectives, the court is guided by the overarching principle of proportionality. Indeed, the starting point for any sentencing is the requirement that the sentence imposed be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1 Cr. C.
36Proportionality engages two distinct concepts: censure and restraint. See R. v. Ipeelee, 2012 SCC 13, at para. 37. It ensures that a sentence reflects the gravity of the offence, promotes justice for victims and ensures public confidence in the justice system. At the same time, it ensures that a sentence does not exceed what is appropriate, in light of the moral blameworthiness of the offender.
37The concept of proportionality compels courts to treat like cases alike and to recognize where there are material differences between different offenders and different offences. Section 718(2)(b) Cr. C. specifically provides that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”.
38At the same time, the court must recognize that sentencing is an acutely individualized exercise. The court must carefully consider the particular circumstances of the offence and of the offender. Any aggravating and mitigating circumstances must be taken into account.
The Applicable Range
39Sentencing judges typically begin their analysis with a discussion of the applicable range of sentences imposed in similar circumstances. Ranges aid in the search for a proportionate sentence because they help identify what courts have historically assessed as the gravity of the offence in other cases and they help ensure that like cases are treated alike.
40Appellate courts have always cautioned, however, that ranges are guidelines only. They are not to be treated as written in stone. There will always be cases that fall above or below an established range, given the unique nature of the sentencing exercise and individual variations in the aggravating and mitigating circumstances present. See R. v. Nasogaluak, 2010 SCC 6, at para. 44.
41It is important to recognize that the range of sentences applicable to sexual offences against children has been profoundly impacted by the Supreme Court’s recent decision in Friesen. In Friesen the Supreme Court reinforced the message that sexual offences against children are grave offences with profound and long-lasting consequences for the children victimized by them. They highlighted a number of compelling factors engaged in the sentencing process for offenders who commit sexual offences against children. These include:
(a) Sentences must recognize and reflect both the harm that sexual offences against children cause and the wrongfulness of sexual violence. Sentences must reflect the “life-altering consequences” that can and often do flow from sexual violence (Para. 74);
(b) 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 (Para. 76);
(c) The wrongfulness of the exploitation of children is always relevant to the normative character of the offender’s conduct and thus the gravity of the offence (Para. 78);
(d) Intentional sexual exploitation and objectification of children is highly morally blameworthy because children are so vulnerable. The use of a vulnerable child for the sexual gratification of an adult cannot be viewed as anything but a crime demonstrating the worst of intentions (Para. 90); and,
(e) Parliament has expressed its will by prioritizing denunciation and deterrence in sentencing for sexual offences against children. Canadian criminal law is a system of values. A sentence that expresses denunciation thus condemns the offender for encroaching on society’s basic code of values. The protection of children is one of the most basic values of Canadian society (Para. 105).
42One of the clearest take-aways from Friesen is that sentencing ranges for offences involving sexual violence against children are in flux. The yardsticks are moving. Sentences are increasing and indeed must increase given the direction of the Supreme Court. See Friesen, para. 5.
43Sentencing ranges established pre-Friesen are of limited value, except perhaps to demonstrate ranges that are too low. Given the recency of the ruling in Friesen, it is premature, in my view, to pronounce, with any confidence, what an appropriate sentencing range might be for possession of a large and seriously depraved collection of child pornography.
44Having said that, there are a number of cases, which counsel have directed the court’s attention to, that assist in fixing a just and appropriate sentence in this case.
45The cases submitted by the Crown suggest that an appropriate sentence in this case might be in the range of 2 to 3 years in the penitentiary. I will comment on those cases briefly.
46R. v. Inksetter is a Court of Appeal decision from 2018. It is an oft-cited case in sentencings for possession of child pornography. It continues to be cited, notwithstanding that it was released roughly two years before Friesen.
47Inksetter was a Crown appeal of a sentence imposed by the trial judge of 2 years less a day in custody on convictions for possession of and making available child pornography. Mr. Insketter was described as having amassed one of the largest and worst collections of child pornography the Ottawa Police Service had ever uncovered. The police identified over 28,000 unique images and 1,144 unique videos of child pornography during their investigation of Mr. Inksetter’s digital devices. Notable, however, is that the police simply stopped viewing Mr. Inksetter’s files at that point. They left 1.2 million other images and 40,000 video files unviewed and uncategorized.
48Mr. Inksetter was 51 years old, married and with no criminal record. He pled guilty at an early opportunity and expressed remorse, accepting full responsibility for what he had done.
49Noting that child pornography is a “pervasive social problem that affects the global community and its children, the Court of Appeal concluded that, in the circumstances, a global sentence of 3 ½ years imprisonment was required to satisfy the objectives of denunciation and general deterrence.
50In R. v. Murty, the offender came to the attention of the police while streaming child sexual abuse materials in an online conference room. He was subsequently determined to possess 1349 unique images and 832 unique videos of child pornography. The content of the materials he possessed included sexually explicit acts with children who ranged in age from toddlers to pre-pubescents, as well as bestiality. They were at the high end of depravity.
51Mr. Murty was 49 years old. He suffered from mental health issues including depression and anxiety. He was described as a moderate risk to re-offend.
52Justice Kelly imposed a sentence of three years concurrent on convictions for possession and making available child pornography. In her view, a sentence of that length was necessary to reflect society’s abhorrence of the offender’s conduct.
53In R. v. Subia, the offender pled guilty to possession of and accessing child pornography, as well as obstruction of justice. He had a collection of 3396 images. The images included male and female adults sexually abusing children, bestiality and BDSM. The offender was 35 years old and had a previous conviction for accessing child pornography. Citing the size of the collection, the nature of the images, the age of the children involved and Mr. Subia’s criminal record, Justice Schabas imposed a three year sentence for the possession charge.
54In R. v. Walker, the offender was sentenced, following a trial, on convictions for accessing, possessing and making child pornography available. He was found to possess 43 videos and 17 images of child pornography. Mr. Walker was a 46-year old first-time offender. He had lived a pro-social life and had been steadily employed prior to his conviction. After a comprehensive review of the applicable jurisprudence, Justice Fowler Byrne sentenced Mr. Walker to 2 years for possession and 3 years for making child pornography available. The sentence was upheld on appeal. See 2021 ONCA 863.
55In R. v. Rule, the offender was convicted of 3 counts of possessing child pornography, following a guilty plea. He was found to be in possession of a very substantial collection of child pornography, which included over 22,000 images and 204 videos. The sentencing ruling does not provide specifics of the content of the images and videos, other than to note that it was repugnant and disturbing.
56Mr. Rule was 70 years old and suffered from significant health problems. He had advanced rectal cancer and required an ostomy bag. The trial judge nevertheless sentenced him to 22 months in prison, followed by 3 years of probation.
57Mr. Rule sought and obtained leave to appeal the sentence. In granting leave to appeal, Justice Brown noted that the sentencing judge had erred in concluding that a conditional sentence was not legally available. He also observed that there was considerable merit to the assertion that a jail sentence would cause Mr. Rule unnecessary hardship in view of his medical condition.
58Mr. Rule’s appeal remains outstanding at the time of this ruling.
59Mr. Brodsky urges the court, on Mr. Reid’s behalf, to consider the imposition of a conditional sentence. He argues that the court must consider and reject a conditional sentence before imposing any term of imprisonment. He offered two recent cases for the court to consider, where conditional sentences were imposed following convictions for possession of child pornography.
60In R. v. C.W.C.L., the offender was convicted of one count of possession of child pornography following a guilty plea. He was found to be in possession of 883 images and 94 videos of child pornography. The B.C. Provincial Court imposed an 8-month conditional sentence with a 3-year period of probation to follow. Acknowledging it was a “markedly lenient disposition”, the court found that there were exceptional circumstances present. The 27-year old offender was Indigenous, had lived an isolated life, had been abused as a child and had significant mental health and other cognitive problems. The mental health problems had directly contributed to his offending.
61In R. v. Dutchession, the offender was similarly convicted of one count of possession of child pornography following a guilty plea. The offender was found to be in possession of over 5,600 images of child pornography. He was 51 years old, with 2 children and had no criminal record. He served in the military and suffered from depression after tours of duty in Bosnia and Afghanistan. Since his arrest he had been in treatment with a clinical psychologist. He expressed genuine remorse and had developed a plan to deal with the factors that could lead to recidivism.
62Describing the circumstances as “unique” and “extremely rare”, Justice McLeod imposed a conditional sentence of 2 years less a day, followed by 2 years probation.
63I note that the Crown had sought a 12-month prison sentence.
64Mr. Brodsky provided the court with a number of additional sentencing decisions in an effort to frame the applicable range as 10-18 months, should the court reject a conditional sentence.
65In R. v. Partanen, the offender pled guilty to one count of possession of child pornography. He had 3,817 images and 453 videos. The videos were described as “grotesque assaults of the most heinous and depraved sort, including vaginal and anal rapes of very young children as well as scenes of bondage. The Crown proceeded by indictment.
66Mr. Partanen was 29 years old and had no criminal record. He had a history of being neglected and sexually abused as a child.
67The B.C. Provincial Court imposed a sentence of 9 months plus 3 years probation. I note the Crown had only sought a 12 month sentence.
68In R. v. Martin, the offender was similarly convicted of one count of possession of child pornography following a guilty plea. He was found to be in possession of 372 images and 59 videos of child pornography. The content of the material was similar to the content found on the material possessed by Mr. Reid.
69Mr. Martin was 45 years old, with no criminal record. The B.C. Provincial Court imposed a sentence of 10 months, plus a one-year period of probation. I note that the Crown had only sought a period of 9-12 months in custody, followed by probation.
70In R. v. Rathwell, the offender similarly entered a guilty plea and was convicted of one count of possession of child pornography. He was found in possession of 22 videos and over 11,000 images of child pornography. The content was not described in detail, but was said to be “at the lower end of seriousness”.
71Mr. Rathwell was found to be a low risk to re-offend. He was 51 years old and had no prior criminal record. He had extensive insight into his offending and was seeking treatment.
72The Alberta Provincial Court imposed a sentence of one year in prison, followed by 12 months probation. I note that the Crown had sought a 24-month sentence.
73In R. v. Moore, the offender was convicted, following a plea, to possession and distribution of child pornography and agreeing with another person to commit sexual assault on a person under the age of 16. With respect to the possession charge, he was found to possess 126 images of child pornography. The images involved children ranging in age from babies to about age 10. They included acts of oral sex, anal and vaginal intercourse, as well as bondage and bestiality.
74Mr. Moore was 48 years old, with no prior record and a history of employment. He had undertaken significant therapy. The Crown sought a 3-year penitentiary term. The sentencing judge (from the Ontario Court of Justice) demurred, finding that such a sentence was disproportionately harsh. The court suggested that proportionate sentences for offences of possessing and making child pornography available to others fall within the range of 14 to 18 months.
75A global sentence of 29 months was imposed, 14 months of which was attributed to the possession offence.
76In R. v. Jenkins, the offender entered a plea before Kelly J. of this court, to one count of possession of child pornography. He had an immense collection, including almost 30,000 images and over 1,100 videos. The content of the material appears similar to the content of the material possessed by Mr. Reid.
77Mr. Jenkins was 72-years old. He had advanced bladder cancer, had an abdominal aortic aneurism, and cardiac arrythmia. The Crown sought a sentence of 18 months in prison, which Kelly J. accepted and imposed.
Aggravating and Mitigating Circumstances
78Fixing a just and appropriate sentence in this case requires a consideration of its unique aggravating and mitigating circumstances.
79By way of aggravation, I find as follows:
(a) Mr. Reid had a very substantial collection of child pornography;
(b) The collection was carefully collected and curated, reflecting a disturbing level of dedication to the undertaking, which, in my view, increases Mr. Reid’s moral culpability;
(c) Based on the file creation dates reflected in the forensic analysis of Mr. Reid’s devices, the collection of child pornography had been going on for a number of years; and,
(d) The content of the material possessed by Mr. Reid was repugnant. It is not at the very worst end of the spectrum. None of it, for instance, appeared to include bestiality. But it was not far from the worst. It included a variety of violent and instrusive acts against children ranging in age from toddlers to pre-pubescents.
80By way of mitigation:
(a) Mr. Reid has had a history of positive social contribution and is supported by his wife and other members of the community; and,
(b) Mr. Reid has no criminal record or other involvement in the criminal justice system.
81Mr. Reid’s counsel argued that a further mitigating factor for the court to consider is that Mr. Reid’s possession of child pornography was a result of recklessness or misadventure. Mr. Reid appears to cling to the fantasy that he accidentally downloaded and possessed child pornography as a regrettable side effect of his insatiable search for adult pornography. I completely reject this theory of the case. It is entirely inconsistent with the findings I made in my judgment. Mr. Reid was an avid collector of child pornography. His curated collection did not arise by accident or misadventure.
82Similarly, Mr. Reid asserts that the court should consider, by way of mitigation, that he sought out counselling for his sex addiction and has attended meetings of Sexaholics Anonymous. I give him no credit for this. Mr. Reid does not acknowledge that he intentionally collected and maintained a library of child pornography. He has not expressed any remorse for doing so, nor any insight into his offending. His counselling does not address his predilection for child sexual abuse materials.
The Request for a Conditional Sentence
83Mr. Reid asks that I impose a conditional sentence. I am not prepared to do so.
84I accept that a conditional sentence is theoretically available for this offence. But as the Court of Appeal noted in John, as above, even a minimum sentence of 6 months is inadequate to reflect the emphasis on denunciation and deterrence in sentencing for offences involving child pornography.
85The case law appears clear that a conditional sentence will only be imposed for possession of child pornography in exceptional circumstances. See R. v. Snead, as above. There are no exceptional circumstances here that would justify the imposition of a conditional sentence.
86In my view, given the Supreme Court’s direction in Friesen, it would be a very rare case indeed, where a conditional sentence was sufficient to satisfy the objectives of denunciation and deterrence that take centre stage in cases of this nature.
The Appropriate Sentence
87It remains to be determined what an appropriate sentence is, in light of the mitigating and aggravating circumstances of this case.
88It appears, based on the caselaw counsel have referred me to, that sentences imposed for possession of child pornography are all over the map, ranging anywhere from about 9 months to about 3 years.
89The cases provided to me by the defence, which tend to support sentences under 18 months, are generally cases coming out of provincial courts. With the exception of Partenan, it is impossible to tell if the Crown elected to proceed summarily or by indictment. Moreover, most of the sentences imposed in those cases are informed by the positions taken by the Crown.
90I am unable to explain why Crown counsel would seek such modest sentences as they did in Dutchession, Partanen and Martin. I can only speculate about whether there were plea agreements in those cases. In Jenkins, the Crown sought only an 18-month sentence, but that is understandable in terms of Mr. Jenkins’ personal circumstances.
91In Friesen, the Supreme Court directed that courts imposing sentences for sexual offences against children, consider a number of factors, which include:
(a) The likelihood to re-offend;
(b) The abuse of a position of trust or authority;
(c) Duration and frequency;
(d) Age of the victim(s);
(e) Degree of physical interference; and,
(f) Victim participation.
92I have no evidence of the likelihood of re-offence. There was no abuse of a position of trust or authority. I have found that the duration of offending went on over a number of years and the frequency was nothing short of astounding. The victims ranged in age from toddlers to pre-pubescents. The degree of physical interference was at the highest level. Victim participation is not a relevant consideration here.
93In my view, an appropriate sentence, in light of the aggravating and mitigating circumstances, and on consideration of the Friesen factors, is 26 months. A penitentiary sentence is, in my view, required to express, in no uncertain terms, society’s abhorrence for the conduct engaged in by Mr Reid and the court’s denunciation of that conduct. And it is required to send a message to Mr. Reid and others like him, that seeking out, accumulating, or trading in the physical records of child sexual abuse will attract significant jail sentences.
94The circumstances may in fact justify a sentence a little higher than the one I am imposing, but I have taken into account Mr. Reid’s age, his lifetime of pro-social behaviour and the fact that this will be his first prison sentence. Some restraint is called for. See R. v. Priest (1996), 100 C.C.C. (3d) 289 (C.A.).
95Mr. Reid has been on bail since April 5, 2017. The conditions of his bail include that he reside with his surety (his wife); that he not be in the company of or communicate with females under the age of 16 unless in the company of his surety; that he not attend a public park or public swimming area where persons under the age of 16 are present or may reasonably be expected to be present; and not to possess or use any electronic device that has access to the internet except for employment purposes and only when supervised by his surety.
96In R. v. Downes, 2006 3957 (ON CA), [2006] O.J. No. 555, the Court of Appeal held that time spent under stringent bail conditions, such as house arrest, may be taken into account as a relevant mitigating circumstance on sentence. The amount of credit to be given is in the discretion of the trial judge and there is no formula that must be followed. It will vary depending on a number of factors including the length of time spent on bail, the stringency of the conditions, the impact on the offender’s liberty and the ability of the offender to carry on normal relationships, employment and activity.
97Mr. Reid’s bail conditions were not particularly stringent. He had to reside with his wife, which he was doing in any event. He was not subject to house arrest or a curfew. And he had relatively little restriction on his movements otherwise.
98Having said that, the restriction did have some, though modest, impact on his liberty. More compelling, he has lived under these bail conditions for over 5 years. In my view, Mr. Reid is entitled to some, modest, reduction in his sentence to reflect those long-outstanding restrictions on his liberty.
99I credit Mr. Reid with one month against his sentence on account of the principles in Downes. In the result, the net sentence imposed is 25 months.
100I impose the following ancillary orders as well:
(a) A DNA order;
(b) A SOIRA order for life;
(c) A forfeiture order in the form provided by counsel.
101Finally, I impose an order under s. 161 of the Criminal Code on the terms attached as “Appendix B”. With respect, I disagree with defence counsel’s submission that there is no nexus between Mr. Reid’s offending and a risk to children under the age of 16. Mr. Reid has a demonstrated predilection for young children, whom he sexualizes. He appears to take pleasure in the degradation and sexual assault of young children. In my view, a s. 161 prohibition is justified. The duration of the order shall be 10 years.
C. Boswell J.
Released: May 25, 2022
Appendix “A”
Description of Images Displayed in Court
An animated image of a boy, 7-8 years old, with a caption having something to do with the boy’s aunt;
An animated image of a boy having intercourse with an adult female;
A young female, perhaps 10-12, naked, laying on her back with her legs spread;
A black and white image showing a young female, maybe 7, with an adult male, naked in front of her. She is holding his penis;
Three young females, aged 8-10, wearing clothing around their waists, kneeling over the back of couch with their bare buttocks explosed;
Two naked, young females. One standing, the other on her knees looking up at the first. The one kneeling may be 10-12, while the one standing is maybe 14-15;
A female, 8-10 years old, laying on the ground in a grassy field with her legs spread apart;
The same young female now standing against a tree, naked, so her bottom can be seen
Images of a young girl, aged 6-7, naked on a blanket on her side with her legs pulled up so her vaginal/anal area is visible;
A young, naked girl, approximately 10 years old, leaning against a bathtub. another magic Lolita pic;
A young girl, maybe 11, on her back wearing high heels. Her legs are lifted up and crossed;
The same young girl, standing in front of a screen with a cartoon background. Wearing high heels, naked and with her buttocks facing the camera;
A young, naked girl, approximately 11, kneeling in the in the sand. The focus of the image is on her bottom and anus;
Two young girls, roughly 9-11 years old, lying side-by-side on a bed, naked except for stockings. Each is lying on her back, propped up on her elbows;
A young girl, perhaps 10-11, lying naked, face down on a bed. She is wearing a maid’s cap and black stockings and has a dildo in her mouth;
A young girl, maybe 5-6, lying nude on top of a pillow on a rock, tummy down. looking back over her shoulder. The focus of the photograph is on her bottom;
A young girl, maybe 5 years old, on her back, nude, legs spread apart;
A young girl, age 2-3, laying on her back, with an adult male penis pushing against her vagina;
A young girl, maybe 2-3, lying on her aback on bed. She is wearing a dress pulled up to expose her vagina. An adult hand is touching her vagina;
A young girl, maybe 2, lying nude on her back. Her legs are spread. The end of a penis is just nearing her vagina;
A girl, approx. 10-11, naked, sitting on a bed, propped up with a pillow, legs slightly apart, showing her vagina;
A young girl, age 2-3, laying on bed. She is wearing a dress pulled up over her waist. She is not wearing underwear. Her legs are spread, exposing her vagina;
An image of a young girl, maybe 2, laying nude on a bed. Her legs are spread apart. A penis is on her vagina;
A young girl laying on a bed, maybe 5 years old. An adult male is kneeling beside her. One of his hand holds her head, another pushes his penis into her mouth;
A young girl maybe 5-6, holding an erect penis towards her mouth;
A 5-6 year old girl holding a penis touching her tongue;
A young girl, approximately 5-6, nude, holding onto a male penis close to her mouth;
A young girl, approximately 2, clothed, standing beside a male penis being held close to her face;
A black and white image showing a naked young girl sitting on a chair. She is about 8 or 9. A naked adult male is standing beside her and he has his hands on her vagina, spreading it apart.
Appendix “B”
Section 161 Prohibition
You are prohibited, for a period of 10 years, from:
(a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;
(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 you do so under the supervision of another adult of at least 25 years of age;
(d) using the Internet or other digital network, except in accordance with the following conditions:
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 Gnutella, E-Donkey, Limewire and BitTorrent).
vii. 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.