R. v. V.T.H, 2022 ONSC 5668

COURT FILE NO.: 19-RA18048

DATE: 2022/10/07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

V.T.H.

Michael Purcell for the Crown

Robert Carew for V.T.H.

SENTENCING SUBMISSIONS HEARD: March 10 and June 24, 2022

further to S. 486.4 OF THE CRIMINAL CODE, it is prohibited to publish or broadcast THE IDENTITY OF the COMPLAINANT in this case, OR ANY INFORMATION THAT COULD DISCLOSE HER IDENTITY.

This judgment

complies with this restriction so that it can be published.

SENTENCE

justice Sally Gomery

[1] On September 16, 2021, V.T.H. (“VH”) was convicted of five offences under the Criminal Code: incest; sexual exploitation; making child pornography; possessing child pornography; and criminal harassment. This conviction followed a week of hearing, after which VH agreed to a joint statement of facts and the Crown proposed conviction, based on those admitted facts, on five of eighteen counts. He was acquitted on the remaining counts. The court record has since been supplemented by a Gladue report, a sexual behaviours assessment and psychiatric assessment under s. 21 of the Mental Health Act, a pre-sentence report, testimony from VH about the conditions of his pre-trial detention, and victim impact statements. I also viewed, in chambers, a selection of images and videos filed by the Crown, which I then ordered sealed.

[2] Based on all of this evidence, I am now ready to sentence VH. My sentencing decision requires consideration of:

A. The facts underlying VH’s offences

B. General and specific sentencing principles

C. Specific factors relevant to sentencing in this case, including:

(i) The nature of the offences

(ii) The impact of the offences

(iii) VH’s history and situation, including his Indigenous heritage and situation and particular circumstances as an Indigenous person

D. The sentencing range for each offence

E. Aggravating and mitigating factors

F. Gladue factors

[3] Having reviewed all of these principles, factors, and circumstances, I will determine a just and proportionate sentence, and what credit VH should get for time he has already served in custody.

A. VH’s offences

[4] VH is currently 38 years old. For much of his life, he has lived on the Mississaugas of the New Credit First Nations Reserve in Hagersville, Ontario. I will review his personal history later in these reasons.

(i) The facts underlying VH’s convictions for incest, sexual exploitation, and making of child pornography

[5] VH’s convictions for incest, sexual exploitation, and making of child pornography are based on his interactions with his half-sister, FH, between April 2017 and September 2018.

[6] VH is 16 years older than FH. They share a biological father, and Indigenous heritage and identity through that same father. They only met a handful of times, however, until late 2016.

[7] Since her third birthday, FH has lived in Ottawa with her maternal aunt, CW. Based on my observations of her on the stand, she is a strong and determined person. FH does, however, have a chronic cardiac condition. She wears a pacemaker. She has below average intellectual functioning due to a brain injury caused by heart attack when she was 12 years old. Her intellectual functioning requires academic accommodations. She has difficulty with math, time, location, and memory. She also has challenges with social interactions.

[8] Over the 2016 Christmas holidays, FH and CW briefly visited VH in his home in Hagersville. FH subsequently contacted VH because she wanted a sibling relationship with him and a closer relationship with her paternal relatives. She also wanted to learn more about her Indigenous heritage and identity, and to gain independence from CW, with whom she was frequently in conflict.

[9] In April 2017, VH travelled to Ottawa and stayed with FH and CW for two weeks. FH had just celebrated her 16th birthday. VH was 32 years old. He knew that FH was his half-sister. He knew that FH wanted to move out of CW’s house, as FH had complained to him about her. I infer, because he stayed with CW and FH, that VH also knew that FH was still in school and had never lived on her own.

[10] Shortly after his arrival, VH began a sexual relationship with FH which included vaginal and anal intercourse. This happened either when CW was asleep or outside the house. FH did not tell anyone about her sexual relationship with VH because he was “older and larger than her”, she felt that no one would believe her, and she had a poor relationship with CW at the time. I infer that she feared what VH might do, based both on her comments about him and because VH had told FH that CW annoyed him and that he wanted to kill her.

[11] Following his visit to Ottawa, VH asked FH to come and live with him at his home in Hagersville. FH felt that she had “no choice” but to comply, as she was still processing his actions in April. She went to live with him in Hagersville in July 2017, where she remained until September 2017.

[12] While they lived together in the summer of 2017, VH had vaginal, anal, and oral penetrative sex with FH almost daily. He sometimes tied her up and once used a whip. VH videotaped their sexual activity. He also filmed, at various times, FH wearing a diaper and masturbating, or himself doing likewise. While FH was living with him, VH watched other child pornography, including images of newborns and infants being sexually assaulted. He sometimes forced FH to watch these videos as they had sex.

[13] FH felt isolated throughout her stay in Hagersville. She did not have any friends or close family members in the area from whom she could seek assistance. She did not feel safe walking down the road. She had no income, vehicle, or access to transportation. She felt she had no way to leave.

[14] CW drove to Hagersville in September 2017 and brought FH back to Ottawa, over VH’s objections. Over the next year, VH and FH continued to spend time together from time to time, and they continued to have sex. FH returned to VH’s house in Hagersville briefly in October 2017 then stayed with him again in mid-December 2017, for about a month. VH visited FH in Ottawa a few times. They lived together for the last time for several weeks in August and September 2018, at VH’s new residence in Hamilton. VH referred to FH as his girlfriend or his wife. He told her to wear a wedding ring he had bought for her and announced that they were married on Facebook.

[15] FH disclosed what had occurred with VH in June 2019 and filed a police report a short time later.

(ii) The facts underlying VH’s conviction for criminal harassment

[16] VH’s conviction for criminal harassment is based on events after FH attempted to end their relationship.

[17] When they were together, VH had expressed his hatred of CW and threatened to harm her. He had told FH that he would cut the brake line of CW’s car, put sugar in her gas tank, or kill her with a knife. FH believed these threats were real.

[18] In May and June 2019, FH attempted to end her communications with VH. VH called FH daily, leaving multiple voice mails for her, professing his love, referring to her as his wife, and becoming angry at her for not calling him back. He said that, if he couldn’t have her, then no one could. VH also told FH that he would post the pictures and videos he had taken of her online.

[19] On August 1st, 2019, after FH had filed a police complaint, VH travelled to Ottawa and went to CW’s house, where FH still resided. He banged on the door while calling and texting FH. FH did not open the door and called 911. She managed to leave the house and go to the police station. VH was arrested later that day in FH’s neighborhood.

(iii) The facts underlying VH’s conviction for possession of child pornography

[20] VH’s conviction for possession of child pornography is based on photos and images found by police on two cellphones, a laptop, and an external hard drive.

[21] Over one thousand images and videos depict FH. These include images showing her being penetrated vaginally or anally while she was bound and gagged, and images of her wearing a diaper. VH’s internet browsing history showed that he had searched for terms such as “sex with my sister”; “wearing diapers and masturbating in front of my sister”; “incest hardcore”; “rape incest” and “most extreme incest rape”; and “brutal sex”.

[22] Many more thousands of images and videos in VH’s possession depict prepubescent victims, including some boys but mostly girls, aged 0 to 6 years old. These pictures and videos show these babies, toddlers, and children engaged in various sexual acts, including vaginal and anal penetration, mostly with adult males. There are many images of babies with ejaculate on their faces.

B. Applicable sentencing principles

(i) General purposes and principles of sentencing

[23] As stated in s. 718 of the Criminal Code, the fundamental purpose of sentencing is “to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions”. Just sanctions are those that are intended:

1. To denounce unlawful conduct and the harm done to victims or to the community caused by unlawful conduct;

2. To deter the offender and other persons from committing offences and, where necessary, to separate offenders from society;

3. To assist in rehabilitating offenders;

4. To provide reparations for harm done to victims or to the community; and

5. To promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[24] Section 718.1 of the Code states that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. As stated in R. v. Iperlee, 2012 SCC 13, [2012] 1 S.C.R. 453, at para. 37, proportionality serves two purposes. It ensures that a sentence is perceived as just by the offender’s victims and society at large, and that it is not excessive to an offender’s moral blameworthiness:

Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for the victims and ensures public confidence in the justice system. As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 S.C.R. 486, at p. 533:

It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence: it must be a “fit” sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender “deserved” the punishment he received and feel a confidence in the fairness and rationality of the system.

Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.

[25] A sentence should account for any relevant aggravating or mitigating circumstances relating to the offence or the offender (s. 718.2). It should also be similar to sentences given to similar offenders for similar offences committed in similar circumstances (the parity principle).

[26] There are specific principles that affect sentencing in this case, because the victims of VH’s sexual offences were minors; FH was a particularly vulnerable person as a young Indigenous female with a disability; and VH is also Indigenous.

(ii) Sentencing principles for sexual offences against children

[27] Section 718.01 of the Code provides that, where an offence involved the abuse of a person under the age of 18, the sentencing judge shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

[28] The Supreme Court of Canada comprehensively addressed the principles applicable to sentencing for sexual offences against children in R. v. Friesen, 2020 SCC 9, 391 C.C.C. (3d) 309. The court held that the sanctions for such offences must increase because they are violent crimes that profoundly harm their victims, and because Parliament has, through a series of amendments to the Criminal Code, including s. 718.01, mandated higher sentencing ranges for sexual offences against children. The court held that sentences for childhood sexual offences must recognize both the actual and potential harm that they cause, and the wrongfulness of sexual violence (Friesen, paras. 75-76).

[29] Childhood sexual abuse causes long-term harm that may only become apparent when the victim is an adult. Courts must not only consider the harm suffered by victims by the time of trial, but the reasonably foreseeable potential harm that may continue to flow from an offence. The long-term impact of sexual abuse of a child may include difficulty in forming loving, caring relationships; a higher risk of substance abuse, mental illness and mental health problems; and poor self-esteem: Friesen, at paras. 79-84, 147.

[30] With respect to wrongfulness, the Court held that, while all forms of sexual violence involve the wrongful exploitation of the victim by the offender, sexual abuse of children is particularly blameworthy because children are uniquely vulnerable: Friesen, at paras. 89-90. An adult who sexually abuses a child is or ought to be aware that their actions can profoundly harm their victim. Courts should give proper weight in sentencing to the offender’s underlying attitudes, in particular their sexual objectification of their victims, because such attitudes are relevant to assessing the offender’s moral blameworthiness and the goal of denunciation: see Friesen, at paras. 87-89.

[31] Finally, at paras. 121-154 of Friesen, the Court commented on significant factors used to determine a fit sentence for sexual offences against children. Factors that should be taken into account include: the offender’s likelihood to reoffend; whether the offence involved an abuse of a position of trust or authority; the duration and frequency of the sexual violence; the age of the victim; and, to some degree, the extent of physical interference. I have carefully considered these factors in making my decision.

(iii) Sentencing principles where the victim is a vulnerable person

[32] Section 718.04 of the Code provides that:

When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.

[33] Because FH is a woman, she is Indigenous, and she has an intellectual disability, s. 718.04 requires that I again give primary consideration to the goals of denunciation and deterrence in sentencing VH. This is particularly important because VH’s offences against FH were, for the most part, sexual offences.

(iv) Sentencing principles where the offender is an Indigenous person

[34] Section 718.2(e) of the Criminal Code directs that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders”.

[35] The specific principles applicable to sentencing Indigenous offenders were considered at length by the Supreme Court of Canada in R. v. Gladue, 1999 679 (SCC), [1999] 1 SCR 688, and more recently in Ipeelee. Courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools, and how that history has resulted in lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and higher levels of incarceration for Indigenous peoples. As well, sentencing judges must consider the specific information about a specific offender, generally presented in the form of a Gladue report.

[36] In Ipeelee, the court clarified that Gladue factors must inform a sentencing judge’s analysis in two ways.

[37] First, the sentencing judge must consider “systemic and background factors [that] may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness”: Ipeelee, at para. 73. The court went on to describe the rationale and impact for this as follows:

Canadian criminal law is based on the premise that criminal liability only follows from voluntary conduct. Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. While this rarely — if ever — attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability. … Failing to take these circumstances into account would violate the fundamental principle of sentencing — that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[38] Second, the sentencing judge must consider sentencing procedures and sanctions which could be appropriate for an Indigenous offender based on their particular circumstances: Ipeelee, at para. 72. This “bears not on the degree of culpability of the offender, but on the effectiveness of the sentence itself. … The Gladue principles direct sentencing judges to abandon the presumption that all offenders and all communities share the same values when it comes to sentencing and to recognize that, given these fundamentally different world views, different or alternative sanctions may more effectively achieve the objectives of sentencing in a particular community.”: Ipeelee, at para. 74.

C. Specific factors relevant to sentencing in this case

[39] As directed by the Supreme Court in Friesen, I will first consider the nature of VH’s offences and their impact on its victims. I will then consider VH’s circumstances, including his situation as an Indigenous person.

(i) The nature of the offences

[40] VH engaged in abusive, violent, and morally repugnant acts with respect to FH.

[41] VH initiated sexual relations with FH despite his awareness of their sibling relationship. He was 32 year old man who took gross advantage of a naïve and intellectually challenged adolescent who had just turned 16, and who longed for a sibling relationship and a deeper connection with her Indigenous heritage. He clearly understood that CW would not approve of a sexual relationship, since he took care to conceal the sexual acts with FH from her mother.

[42] VH sexually exploited FH. He persuaded her to move in with him by playing on FH’s desire for independence and her conflicts with her adoptive mother. In doing so, VH abused his position of authority as someone who was much older than FH and in a position of power over her. While FH lived with him in Hagersville in 2017, she was isolated and completely dependent on VH. As admitted by the defence and as evidenced by the photos and images in VH’s possession, he engaged in violent penetrative acts with FH on a daily basis during this period. He tied her up and beat her. He got her to engage in degrading acts such as wearing diapers while masturbating. He forced her to watch child pornography as he penetrated her.

[43] VH’s creation of pornographic images and videos depicting FH further exploited her vulnerability and violated her dignity. These images created a permanent record of her abuse. They also gave VH leverage when she later wanted to end their relationship.

[44] Any suggestion of willing participation by FH in the relationship is repugnant. She could not meaningfully consent to it. In addition to her age, she was a particularly vulnerable person due to her intellectual disability, and the age and size differential with VH. She did not disclose what VH had done when they first had sex in Ottawa because she was scared of him and scared of what he might do to her adoptive mother. She also feared she would not be believed.

[45] In addition to his offences against FH, VH committed inherently violent and morally reprehensible acts towards countless additional victims depicted in the pornographic pictures and videos and images in his possession. These included babies, toddlers, and very young children, mostly female. By seeking out these images, VH helped create a market for them. By viewing these images, VH perpetuated these young victims’ abuse.

[46] Finally, VH’s harassment in 2019 was designed to intimidate FH and to coerce her into resuming their relationship. He phoned and texted her constantly. He had, in the past, threatened violent physical acts towards CW. He told FH that, if he could not have her, then no one would. This harassment is particularly blameworthy given FH’s age, situation, intellectual challenges, and Indigenous identity.

(ii) The impact of the offences

[47] VH’s offences involved two groups of victims. FH and her mother CW, and the children depicted in VH’s pornography collection.

[48] FH did not file a victim impact statement. This does not prevent me from finding that VH’s actions have had and will continue to have a substantial impact upon her: Friesen, at paras. 79-84. I have no doubt that VH’s sexual exploitation of FH will more likely than not impact her self-esteem, her mental health, her future intimate relationships, and her ability to form such relationships. FH was objectified and robbed of her dignity and personal and physical autonomy. Her exploitation by VH will also more likely than not discourage her from deepening her relationship with her paternal family and her Indigenous culture. It has also had a negative impact on her relationship with her adoptive mother CW.

[49] In her victim impact statement, CW discloses her feelings of loss and outrage about how VH disregarded her daughter’s power to make her own choices. She is sad that FH’s potential relationship with her extended paternal family and her culture has been disrupted. She feels guilty about her role in permitting VH to have access to her child. Because she does not wish to undermine FH’s dignity by talking about what has happened with others, CW can no longer freely interact with her friends. She is also conscious that FH may be triggered by being touched, and so feels she is inhibited from showing affection towards her.

[50] The second group of victims are those, in addition to FH, who are shown being sexually abused in VH’s child pornography collection. Crown counsel filed an affidavit by Monique Germain, the general counsel for the Canadian Centre for Child Protection, Inc. She attaches victim impact statements from nineteen sexual abuse victims whose images were found in VH’s collection, as well as statements from some of these victims’ parents. In discussions with Ms. Germain, these victims told her that they want courts to better understand the harms that they have suffered and continue to suffer. The victims used pseudonyms and the videotaped statements were created in such a way as to protect them from being identified.

[51] In listening to the videotapes, here are a few of the statements by the children depicted in VH’s porn collection that stood out for me:

• “Being manipulated and groomed, and then sexually abused when I was young was one thing, but I got over it. The one thing I can’t get over is knowing that people are still constantly reliving and enjoying what has happened to me.”

• “There is a lot I don’t remember, but the disgusting images of what happened to me are out there on the internet today. … Everyday I live in fear that someone will see my pictures and recognize me and that I will be humiliated all over again. … I still feel like I am being abused and exploited every day”.

[52] In their statements, the parents of the victims say that their children act out, have emotional outbursts, and are angry, sad, hopeless, depressed, moody, sometimes withdrawn, uncommunicative, sometimes tearful, occasionally paralyzed and unable to complete tasks. They are unmotivated, unable to concentrate and overwhelmed. A mother of two girls depicted in the images said that her daughters can never put their victimization in the past, because it is ongoing. Like her children, she is “suspicious of everyone, and […] no longer believe[s] in the goodness of other people”.

[53] VH’s child pornography collection was very large and records repugnant acts. Most victims have not been identified and their voices have not been heard. The victim impact statements that have been produced, however, underscore the harm done by collectors of child pornography. The victims of sexual abuse in these images mention struggles with alcohol and drugs; feelings of anger, embarrassment, apathy, and depression to the point of suicidality; a lack of self-esteem; an absence of relationships due to fear and lack of trust; cognitive issues; problems completing academic programs and finding employment and keeping jobs; nightmares, self-harm, and disassociation; and ongoing mental health issues.

(iii) VH’s history and situation

[54] The details of VH’s history and situation, including his circumstances as an Indigenous person, were obtained through a pre-sentence report by Tyler Hearty, a probation officer; a psychiatric and sexual behaviours report by Dr. Jonathan Gray; and a Gladue report.

(a) VH’s personal history

[55] VH is an only child, although he has other half-siblings in addition to FH. His parents separated when he was a boy. VH and his mother then moved around from place to place for years. VH saw his mother being physically, verbally, and emotionally abused by a series of alcoholic boyfriends. VH was also physically abused by these men. VH did not have regular contact with his father, or any positive male role model, during most of his childhood. He had to change schools frequently. He told Mr. Hearty that he often got into trouble for fighting and talking back. Despite this, VH reports that he had a high academic average, and lacked only a few credits that would have allowed him to graduate high school with his peers. He went on to obtain his high school equivalency when he was 21 years old.

[56] Despite the events of his childhood, VH told Mr. Hearty that his mother provided him with a loving home. He maintained a relationship with her extended family, seeing them during holidays. VH said that he continues to have a positive relationship with his mother, although her health is now poor following a stroke.

[57] VH’s parents both abused alcohol when he was a child, with VH describing his father as a “mean drunk”. VH himself began to drink and smoke cannabis at a very early age. He began drinking heavily and partying in his late teens after losing both a friend and a family member to suicide. These losses made him consider suicide. He checked himself into a mental health facility for three weeks, where he was prescribed anti-depressants. He discontinued these drugs after a time and has not since had any counselling or treatment for mental health issues.

[58] VH told Mr. Hearty that, as an adult, he went on alcoholic “benders” for up to six months. He told Dr. Gray that, in addition to his parents, several paternal aunts and his paternal grandfather all suffered from alcoholism. VH nonetheless characterizes his alcohol use as “inconsequential” and denies any addiction. According to him, he could stop drinking whenever he wanted, and alcohol never interfered with his relationships or employment. He has never gone through any treatment for addiction nor does he feel that this is necessary.

[59] VH’s mother asked him to leave when he was 18 years old. He moved back to live with his father, but they fought and he was kicked out of his house. VH was homeless for some time before getting assistance that allowed him to rent an apartment in Hamilton.

[60] VH took courses in college but did not obtain a degree. He has had a variety of jobs and has also been on social assistance. In the pre-sentence report, Mr. Hearty said that VH acknowledged that he has had anger management issues. It is unclear how this may have affected his personal life or his employment history.

[61] Beginning in his twenties, VH had a ten year long romantic relationship with an older woman. They lived with her two children from a previous relationship and had a son together. According to VH, their relationship ended because he thought she was unfaithful and because she physically abused him. VH’s son is now 17 years old. VH told Mr. Hearty that he had regular contact with him until he was arrested but has not since heard from him or seen him.

(b) VH’s psychiatric assessment

[62] VH underwent an assessment of psychiatric and sexual behaviours by Dr. Gray, a psychiatrist, in October 2021. In his report, Dr. Gray sets out VH’s account of the events giving rise to his conviction, of his past psychiatric, medical, social, and substance use history, and of his current psychiatric symptoms. He then reports on the results of biochemical laboratory tests, self-reported psychological questionnaires, and phallometric testing. Finally, Dr. Gray expresses his opinion on VH’s risk to reoffend based on various risk assessment tools.

[63] VH has recently been prescribed anti-anxiety medication as well as a medication to help him sleep. Dr. Gray says that some of VH’s symptoms following an assault in Penetanguishene suggest that he has PTSD.

[64] Much of VH’s account to Dr. Gray of his interactions with FH was self-serving and contradicted admissions in the agreed statement of facts as well as CW’s evidence at trial, which I found credible. He denied that he sought out or viewed child pornography for sexual gratification, an assertion that Dr. Gray dismissed as “entirely non-credible”.

[65] In Dr. Gray’s view, there is “substantial evidence” that VH has a pedophilic disorder, including his child pornography collection, his viewing of these images while having sex with FH, and phallometric testing that showed he was aroused when shown images of physically coercive or violent sexual acts between adult men and prepubescent girls. Despite this, in his opinion, VH is at relatively low risk to commit further sexual offences against post-pubescent females. He explained his reasoning as follows:

[VH’s] overall actuarial risk of sexual or violent reoffence is below average compared to other convicted sexual offenders. There are a number of factors associated with a lower relative risk in his case. He has no previous criminal convictions and, more importantly, no previous sexual offences. Those sexual offenders without male victims are also at a lower relative risk of reoffence than those with male victims. He has had a previous common-law relationship, which is also a protective factor according to the Static-99R. Finally, as he will be over 40 at the time he is released from incarceration, his more advanced age is associated with a lower risk of reoffence.

[66] Dr. Gray expresses the view that VH’s offences against FH were “motivated by opportunity” as he is someone with a high sexual drive who had “prolonged, unsupervised access to a very young, vulnerable female who likely wanted to re-connect with a family member”.

[67] Dr. Gray expresses some concern about VH’s risk to offend against pre-pubescent victims. He notes that a pedophilic disorder does not generally go into remission with treatment or time, and states that individuals with this diagnosis “need to manage their symptoms of the disorder and continually avoid unsupervised, sustained contact with pre-pubescent children”. He speculates that VH’s conviction and jail sentence, combined with his lack of impulsivity, may mitigate the risk of reoffence. Dr. Gray recommends, however, that VH should not be permitted to have unsupervised contact with females under the age of 16 nor be permitted to take on employment or otherwise occupy a position of trust and authority with females under the age of 18. He also recommends that VH’s access to the internet should be restricted, but acknowledges that this would be difficult to enforce.

[68] I have concerns about the basis for Dr. Gray’s general conclusion about VH’s relatively low risk to commit further hands-on sexual offences against post-pubescent females.

[69] First, Dr. Gray’s risk assessment relies significantly on self-reporting from VH, even though he acknowledges that VH is not a reliable source of information or insight. For example, Dr. Gray accepts that VH is more likely to express anger verbally than through physical violence, because that is what VH told him. He also accepts VH’s self-reported lack of hostility towards women, his self-reported lack of impulsivity, and his self-reported positive relationships with family members and women. He does this despite noting that VH scored high on testing for “self-deceptive enhancement”, and despite contradictions between VH’s statements to Dr. Gray and the agreed statement of facts.

[70] Second, Dr. Gray characterizes VH’s sexual exploitation of FH as a crime of opportunity. This overlooks the steps that VH took to create that opportunity. After FH got in touch with him seeking a closer sibling relationship, VH cultivated that connection. He travelled to Ottawa, where he initiated sexual intercourse with FH when CW was out of the house or out of earshot. He encouraged FH to move in with him in Hagersville, where she was isolated and dependent on him. These deliberate steps to gain unfettered access to a young female victim are inconsistent with the premise that VH is unlikely to commit further sexual offences because he is unlikely to have another chance to do so.

[71] Finally, and perhaps most importantly, Dr. Gray’s assessment does not seem to factor in VH’s complete lack of understanding and disregard for consent. In response to a questionnaire, VH agreed with the statement that “I think the main thing wrong with sexual activity with children is that it’s against the law”. He tried to persuade both Dr. Gray and Mr. Hearty that FH freely consented to have sex with him, despite her age, their sibling relationship, their age difference, the power imbalance between them, and her intellectual disability. He showed no concern that the children and babies in his pornography collection had no ability to consent to what was done to them.

[72] I question whether VH can avoid committing further hands-on sexual offenses, given his creation of a situation where he could abuse FH and his profound lack of insight as to the wrongness and harm created by his actions towards her and the children in his pornography collection. I accordingly give limited weight to Dr. Gray’s conclusion about VH’s risk to reoffend.

(c) VH’s Indigenous heritage and situation and particular circumstances as an Indigenous person

[73] VH was born into the New Credit First Nation. He is a member of this First Nation. VH’s Indigenous heritage comes through his father. His mother is not Indigenous but holds Indian Status through her marriage to VH’s father. VH told Katharine Melanson, the author of the Gladue report filed with the court, that he lived on the Mississaugas of the Credit First Nation reserve for a total of 10 years over his life. He lived there for the first four years of his life, on and off after that, and then full time again in his early thirties. VH and paternal family members live on the reserve, and VH hopes to return there once out of custody.

[74] VH’s account to Ms. Melanson of his childhood and teenage years is consistent with his account to Mr. Hearty. I will not repeat it all but simply mention specific elements that relate to VH’s situation as an Indigenous person.

[75] VH’s father and other paternal relatives are residential school survivors. When VH was a teenager, his father told him about physical and sexual abuse he suffered at the Mohawk Institute Residential School in Brantford. VH told Ms. Melanson that his father’s experience is “what made him as mean as he is”. He described how his father physically abused his mother during their marriage. Both of his parents struggled with alcohol addiction during his childhood and adolescence.

[76] VH told Ms. Melanson that he does not have contact with most of his extended family. He knows that his father was born in Ontario but not where specifically. Although his father lives on reserve, VH said that he had not talked to him or his paternal grandmother in at least three years. His paternal grandfather is deceased.

[77] VH said he grew up “knowing he was native”, but without learning much about Indigenous traditions. He spoke Anishinaabemowin or Ojibwa as a child but has lost the ability to speak his language when he and his mother moved away. He told Ms. Melanson that it was difficult to learn about his culture because he moved around so much. He was able to hunt, trap and fish with his paternal cousins as a teenager, when he visited them on reserve.

[78] VH told Ms. Melanson that he was sexually abused by an adult man when he was about four years old. What exactly happened is not clear. VH’s account to Ms. Melanson was different than his account to Dr. Gray and Mr. Hearty. By his own admission, he has a limited memory of the event.

[79] Ms. Melanson discusses possible long-term impact of injuries that VH suffered in a car accident when he was eight years old. She draws a link between the accident and VH’s behavioural issues in school and substance abuse, and suggests that his criminal offenses could be linked to traumatic brain injury. There is no medical evidence to support this. VH also mentioned the car accident to Dr. Gray, but said he was not aware of any long-term negative effects from his injuries. Dr. Gray does not speculate about any connection between the car accident and later events in VH’s life. I put no weight on Ms. Melanson’s comments on this issue.

[80] Ms. Melanson makes recommendations for the court’s consideration during sentencing. She recommends that VH access various Indigenous-led programs when he is released. These include programs that provide counselling for individuals with a history of violence against women. She notes that the Waseskun Healing Centre offers culturally based healing and mental health support for detainees in both provincial and federal institutions.

D. The range of sentence for each offence

(i) Incest

[81] Under s. 155(2) of the Criminal Code, a person who commits incest is subject to a prison term of up to 14 years. If the victim is under the age of 16, there is a mandatory minimum of five years.

[82] In R. v. H. (T.S.), 2019 ONSC 2644, at para. 7, Justice Aitken comprehensively reviewed the caselaw on incest and summarized the applicable sentencing principles. Sibling incest may attract a lesser sentence if the offence involves a lesser breach of trust than parent/child incest. If an older sibling acts in loco parentis, however, the victim of incest may be just as dependent and vulnerable as a victim of parent/child incest. Other relevant factors include the number of incidents of incest, the victim’s age when the incest occurred, and whether the sex was consensual. Aggravating factors must be weighed with mitigating factors, including any Gladue factors.

[83] In addition to H.(T.S.), the Crown provided the court with four sentencing decisions involving incest between siblings: R. v. T.C., 2019 ONSC 1910; R. v. M.(W.W.), 2006 3262 (ON CA), [2006] O.J. No. 440 (ONCA); R. v. W.(E.), 1998 7196 (ON CA), [1998] O.J. No. 5121; and R. v. M.L., 2020 QCCQ 12261 (C.Q.), aff’d at 2021 QCCA 1059. The only one that post-dates Friesen is M.L. In that case, the Quebec Court of Appeal upheld a sentence of six years. The facts in M.L. are quite different than those here.

[84] In this case, which involves a minor victim and much older offender in a position of power over her, sentencing must be guided by the approach set out in Friesen. In its decision, at para.114, the Supreme Court declined to set a sentencing range for sexual offences against children but held that “mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances”.

[85] In the general circumstances of this case, I find that the range of sentencing for this offence, standing alone, is six to nine years.

(ii) Sexual exploitation

[86] Under s. 153 of the Criminal Code, a person found guilty on an indictment for sexual exploitation is subject to a minimum prison term of one year and a maximum term of fourteen years. By definition, a victim of sexual exploitation is between 16 and 18 years of age, and the offender is a person in a position of trust and authority over them, or the victim is dependent on them, or they are otherwise in an exploitative relationship. Circumstances that allow a court to infer an exploitative relationship include the age difference between the accused and the complainant, and the degree of control or influence that they exercise over the complainant.

[87] Given the many ways that sexual exploitation can be committed, the range of sentences for it is broad: R. v. M.B., 2013 ONCA 493, at para. 21. In R. v. D.M., 2012 ONCA 520, however, the Ontario Court of Appeal stated that where there is “prolonged sexual abuse and assault of a child, including penetration, by an adult in a position of trust”, the minimum sentence would be five or six years in a penitentiary. It imposed a seven year sentence on the facts in D.M.

[88] The decision in D.M. predates Friesen, in which the Supreme Court held that sentences for sexual offences against children should generally be increased. I accordingly find that, on the general circumstances of this case, an appropriate range of sentence for sexual exploitation is six to nine years.

(iii) Making and possessing child pornography

[89] Under s. 163.1(2) of the Criminal Code, a person who makes child pornography is subject to a sentence of between one to fourteen years in prison. Under s. 163.1(3), a person who possesses child pornography may receive a sentence of up to ten years.[^1]

[90] In R. v. Nisbet, 2011 ONCA 26, 2011ONCA 26, at para. 1, the Court of Appeal described possession of child pornography as “an abhorrent crime that victimizes the most vulnerable members of our society”. The possession of child pornography is itself child sexual abuse: R. v. Andrukonis, 2012 ABCA 148 (Alta.C.A.), at para. 29; and R. v. Inkstetter, 2018 ONCA 474, at para. 22.

[91] Possessing child pornography is morally repugnant for two reasons. First, possession creates a market for child pornography, thereby inciting further sexual abuse of further young victims. Second, in viewing an image of a child being sexually abused, an offender perpetuates and deepens the abuse that has already occurred. The viewing of child pornography infringes the dignity and sexual autonomy of the victims depicted in it.

[92] As stated eloquently in R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at para. 92:

The link between the production of child pornography and harm to children is very strong. The abuse is broad in extent and devastating in impact. The child is traumatized by being used as a sexual object in the course of making the pornography. The child may be sexually abused and degraded. The trauma and violation of dignity may stay with the child as long as he or she lives. Not infrequently, it initiates a downward spiral into the sex trade. Even when it does not, the child must live in the years that follow with the knowledge that the degrading photo or film may still exist, and may at any moment be being watched and enjoyed by someone.

[93] As mentioned in one of the statements by the parents of children depicted in VH’s pornography collection: “Had people like the defendant not sought out these images of abuse, my daughters might not have been forced to endure the physical invasion of their bodies and their privacy.”

[94] Possession of child pornography is therefore the opposite of a victimless crime. Sentencing for this offence must reflect the nature of the offence and its impact on its victims. As directed by the Supreme Court at para. 35 of Friesen, courts should approach pre-Friesen sentencing decisions with caution, as they do not necessarily reflect the range now considered appropriate.

[95] In two recent, post Friesen cases, R. v. M.B., 2020 ONSC 7605 and R. v. Walker, 2021 ONSC 837, Ontario judges imposed two year sentences for the offences of making and possessing child pornography. In Walker, at paras. 57 to 64, the sentencing judge canvassed prior cases involving the possession and making of child pornography. Sentences ranged from one year to three years. In some of these cases, the offender was also convicted of distributing child pornography or making it available, which had a bearing on the overall gravity of the offender’s conduct. On the other hand, these cases all pre-date Friesen.

[96] I find that the general range of sentences in this case for each of the child pornography counts is two to three years.

(iv) Criminal harassment

[97] Under s. 264(3) of the Criminal Code, a person guilty of criminal harassment is subject to a custodial sentence of up to ten years. This represents a doubling of the maximum sanction previously in place and reflects the recognition of the gravity of this offence. As stated in R. v. Wall (1995), 1995 2320 (PE SCAD), 136 Nfld & P.E.I.R. 200 (PEI CA), at p. 203, given the nature of the offence, courts must be careful not to place undue weight on the offender’s lack of prior criminal record:

The focus of sentences must be to send a message to the offender, and the public, that harassing conduct against innocent and vulnerable victims is not tolerated by society and most importantly, the Court must insure, as best it can, that the conduct of the offender never happens again recognizing that, if it does, a far more serious offence could be committed. The principles of sentencing must be applied with this focus squarely in mind.

[98] The Ontario Court of Appeal cited this passage in R. v. Bates, 2000 5759 (ON CA), [2000] O.J. No. 2558 (ONCA), adding that courts must deal with criminal harassment “in the most forceful and effective terms”, with an emphasis on the goals of deterrence and denunciation. The court repeated this message in R. v. Nolan, 2019 ONCA 969, at para. 65, writing that this offence “must be denounced in clear terms, a heavy sentence is required, and general and specific deterrence are overriding considerations”.

[99] In R. v. Lowe, 2018 ONCA 777, the Ontario Court of Appeal upheld a 12-month jail sentence for criminal harassment as part of a 9-year global sentence for various offences including sexual assault. In Nolan, the Court of Appeal likewise upheld a one year custodial sentence, in a case involving an offender with a lengthy prior record. In two more recent cases from the Ontario Court, R. v. Tazike, 2019 ONCJ 819 and R. v. Huth, 2019 ONCJ 138, offenders received five or six months for criminal harassment.

[100] Notwithstanding the significant gulf between the maximum penalty for criminal harassment and the range of sentences in these cases submitted by the Crown, I conclude that the appropriate range of sentence in this case is 6 months to one year.

E. Aggravating and mitigating factors

Aggravating factors

[101] I will deal first with the aggravating factors with respect to offences involving FH, then those in respect of VH’s possession of child pornography.

[102] With respect to the offences against FH, the breadth, nature, and duration of VH’s criminal conduct are aggravating factors. VH groomed FH. He exploited her desire for independence, her rocky relationship with her mother, and her desire to have a greater connection with her half-brother and her Indigenous culture. He also played upon her fear that he would harm CW. This resulted in FH moving in with VH in Hagersville in 2017, a situation that gave him almost complete control over her.

[103] VH’s conduct will likely have serious, long-term impacts on FH. It will affect her self-esteem and self-worth, her ability to form intimate relationships, and her relationship with her adopted mother. It will also inhibit her from strengthening her ties to paternal family members and, through them, her connection with her Indigenous heritage and community.

[104] A further aggravating factor, for the purpose of the criminal harassment charge, is VH’s threat to post his videos of FH on the internet when she refused to respond to his messages and calls. Even if VH never acted on this threat, FH would have been conscious of the ongoing risk that he would do so. Revenge porn features all too often in criminal harassment cases involving former female partners. Sentences where the posting of intimate images is threatened should reflect the need to deter and denounce this conduct.

[105] The aggravating factors with respect to the offence of possession of child pornography include, first of all, the volume and nature of VH’s collection, which I have described earlier.

[106] The far-reaching impact of VH’s crimes on its victims is a second aggravating factor. The victim impact statements provided show how VH’s possession of child pornography has perpetuated and deepened the abuse visited on them.

Mitigating factors

[107] VH was 32 to 34 years old when he committed the offences and had no criminal record. This is an important mitigating factor. VH did not get into any serious trouble prior to his arrest despite a very difficult childhood and adolescence, a lack of financial and social security as an adult, and heavy use of alcohol.

[108] Another mitigating factor is that VH made admissions of fact that significantly limited the amount of time that FH had to testify and avoided any cross-examination of her. This showed some empathy towards VH.

[109] Remorse is not a mitigating factor. At sentencing, VH said that he wished FH well and undertook that he would not contact either her or CW. He did not, however, offer any apology or recognize the harm he had done.

The likelihood that VH will reoffend

[110] I must also consider the risk that VH will reoffend. On my reading of Friesen, it is not clear whether a heightened risk to offend is an aggravating factor per se. It is, however, a factor that the Supreme Court has directed sentencing judges to consider in determining a fit sentence. As stated in Friesen 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. Emphasizing this objective will protect children by neutralizing the offender’s ability to engage in sexual violence during the period of incarceration… . 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 … .[Authorities omitted.]

[111] For reasons I have already mentioned, I do not share Dr. Gray’s guardedly optimistic opinion about VH’s potential to commit further direct sexual offences against women and girls. Even Dr. Gray agreed that VH should not be in a position where he could have control or sustained contact with girls under the age of 16.

[112] With respect to prepubescent girls, as Dr. Gray noted, paraphilia is resistant to treatment or sanction. The risk here is heightened because VH is in complete denial about his interest in child pornography, and he does not accept legal and societal restrictions or demonstrate empathy for his victims.

F. Gladue factors

[113] Based on Ms. Melanson’s report, VH has been victimized by racism and discrimination throughout his life. Aspects of his personal history reflect the legacy of the residential school system and Canadian colonialism acknowledged by the Supreme Court of Canada in Gladue and Ipeelee. This personal history includes poverty, poor academic and employment outcomes, exposure to alcohol and drugs at a young age, homelessness, and social and cultural dislocation. VH’s lack of connection with his paternal family and the emotional poverty of his childhood and adolescence can also be ascribed to this legacy. Intergenerational effects of residential school trauma also include difficulties in expressing affection and providing a nurturing environment, and addictive and self-destructive behaviours.

[114] The Supreme Court has emphasized that s. 718.2(e) does not create “a race-based discount on sentencing”. It rather requires sentencing judges to pay particular attention to the circumstances of Indigenous offenders, so that a truly fit and proper sentence is imposed in their particular case: Ipeelee, at para. 75. As stated at para. 83 of that decision:

Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence. This is not to say that those factors need not be tied in some way to the particular offender and offence. Unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence.

[115] Having regard to unique systemic and background factors in VH’s case, I find that they shed light on his level of moral blameworthiness with respect to the offences against his half-sister, FH.

[116] VH had few positive adult role models as a child and adolescent. He witnessed his mother’s boyfriends beating her up and was himself the victim of their physical abuse. He may have been sexually abused. Although he says that his mother provided him with a loving home, neither of his parents gave him any real guidance, much less a secure and nurturing environment. VH told Ms. Melanson that, based on his own experience, he had no idea how to care for his own child, or how to interact with him appropriately.

[117] VH’s emotional isolation and limitations reflect his own father’s limitations and those of his extended paternal family. This is in turn connected to their experiences in the residential school system and the broader institutional racism directed against Indigenous persons in this country, both historically and in present day.

[118] Both of VH’s parents struggled with addiction and exposed him at a very young age to alcohol and drugs. This led him to a cycle of binge drinking that lasted into adulthood. Two people with whom VH had a close relationship died when he was a teenager. He contemplated suicide and received treatment for depression. He did not, unfortunately, obtain treatment for addiction. His experiences with addiction and personal loss again reflect a sad reality for many Indigenous persons.

[119] Finally, VH’s circumstances as an Indigenous person have limited his opportunities to pursue a higher education and to obtain skills for long-term meaningful, satisfying, and liveable employment. His schooling was disrupted by his peripatetic upbringing, as well as overt racism and bullying. He felt alienated from an educational system that marginalized Indigenous people. He was deprived of an ability to continue speaking the Indigenous language he was taught as a child.

[120] None of this implies that VH’s actions towards FH were involuntary or that the goals of deterrence and denunciation should not remain the primary goals of sentencing in this case. I do, however, conclude that his unique circumstances bear on his degree of moral culpability, and so should influence the sentence he should receive, for the offences involving FH. His decision to pursue a sexual relationship with his half-sister, who is also Indigenous, could reflect, in part, his own cultural and personal dislocation. In the absence of any positive role models, he appears to have no insight into the wrongness of his actions towards her.

[121] I do not reach the same conclusion with respect to VH’s possession of child pornography. In my view, there is nothing about VH’s circumstances, history, or heritage as an Indigenous person that explains or informs his interest in images of violent sex with children and babies, or that lessens his moral blameworthiness for this offence.

[122] Turning to the second impact of Gladue factors, VH told Mr. Hearty that he has had the opportunity to engage in Indigenous-based programming while living in New Credit, but he did not really take advantage of this. He nonetheless expressed a preference for Indigenous-based correctional practices and services. He reported that he made unsuccessful efforts to engage with the Native Liaison Officer while in custody and to take part in Indigenous-based correctional practices such as smudging.

[123] I have considered whether there are particular sanctions or sentencing procedures appropriate for VH as an Indigenous offender. Given the gravity of his offences, a sentence in the community is clearly inappropriate. In her report, Ms. Melanson did not identify any custodial programs that would be available to VH if he were incarcerated in a provincial, as opposed to a federal, institution. A smudging ceremony took place before I began rendering this sentence. No other proposals have been advanced for a different approach to sentencing in VH’s case, based on Indigenous custom or practices. I conclude that Gladue factors do not give rise to any other particular sanctions or sentencing procedures in this case.

What is a proportionate and just sentence in this case?

[124] Having assessed the wrongfulness of VH’s acts, their impact on the victims, and aggravating and mitigating factors, I must now determine a proportionate and just global sentence, taking into account the goals of sentencing, the impact of Gladue factors, the conditions of VH’s pre-sentence custody, and the totality principle.

The positions taken by the Crown and the defence

[125] The Crown seeks a 12 year penitentiary sentence in total, reduced by credit for time served. It also seeks a series of ancillary orders on these two counts under ss. 109, 161, 487.051(1), 490.012, and 743.21(1) of the Criminal Code.

[126] The defence argues that, given the amount of time that VH has spent in custody since being charged, an appropriate sentence would be two more years of custody followed by three years of probation. It does not contest the ancillary orders sought by the Crown.

Sentencing for each offence prior to application of Gladue factors, pre-sentence custody conditions and the totality principle

[127] On the convictions for incest and sexual exploitation, I find that a fit sentence in this case would be at the higher end of the six to nine year range for each offence, given the aggravating factors.

[128] The Crown concedes that it has not found an incest case that meaningfully parallels this one. I have taken into account that VH does not have a criminal record, and that he admitted facts, midway through the trial, that spared FH from cross-examination. Applying the principles in Friesen, however, and considering the principal goals of deterrence and denunciation, I conclude that an appropriate sentence on the incest conviction is an eight year custodial sentence.

[129] With respect to the sexual exploitation conviction, the facts of D.M. parallel those in this case in some significant ways. The victim in D.M. was a young woman who came from Fiji to live with her aunt and the aunt’s husband in Canada to obtain an education. She was entirely dependent on the host family. After grooming her over many months, the aunt’s husband repeatedly had sexual intercourse with the victim, telling her that she would be deported if she disclosed what was happening. This lasted three years. The victim eventually agreed to an arranged marriage in another province to get away from the abuse. The offender was ultimately sentenced to seven years in custody.

[130] Like the victim in D.M., FH was young, female, and particularly vulnerable due to personal circumstances. The victim in D.M. was sexually exploited for a longer period than FH. This decision, however, predates Friesen, and so does not fully take into account the Supreme Court’s directions for sentencing of the sexual abuse of children, or FH’s particular vulnerabilities as an Indigenous woman with a chronic cardiac condition and intellectual challenges. In the circumstances, I conclude that an appropriate sentence on the sexual exploitation conviction is an eight year custodial sentence.

[131] In its submissions on sentencing for these first two counts, the Crown contends that the prohibition against multiple convictions for offences arising from the same acts in Kienapple v R, 1974 14 (SCC), [1975] 1 S.C.R. 729 is not engaged. Even if I accept that the Crown had to prove different elements for incest and sexual exploitation, I conclude that the sentences for these offences ought to be served concurrently. The Crown does not in fact argue otherwise.

[132] For the offence of making child pornography, I find that a two-year sentence is appropriate. The Crown proposed a one year sentence, but I assume that this was after taking Gladue factors into account. VH’s recording of over a thousand images was a violation of FH’s dignity and sexual autonomy. It memorialized her exploitation. Although VH did not distribute these images, he threatened to. This further harmed FH.

[133] Section 718.3(7) directs that sentences for child pornography offences should run consecutive to any other sentence imposed for a hands-on offence against a child. VH’s sentence for making child pornography must therefore be consecutive to sentences for his other offences.

[134] For VH’s criminal harassment of FH, I conclude that a sentence of six months would be appropriate. I am bound by the parity principle. Given the sentences recently given by other Ontario courts for criminal harassment involving conduct similar to that of VH, I conclude that a longer sentence would be unjust.

[135] In Lowe, the Ontario Court of Appeal upheld a consecutive sentence for criminal harassment. In Tazike and Huth, sentencing judges also ordered sentences for criminal harassment consecutive to sentences for other offences. Given that the conduct underlying VH’s conviction for criminal harassment is completely distinct from the conduct underlying his other offences, and given the goals of deterrence and denunciation in sentencing for criminal harassment, I conclude that VH’s sentence for this offence should run consecutive to the sentences imposed for his other offences.

[136] Finally, with respect to possession of child pornography, I find that the sentence should be on the higher end of the range, given the size and nature of VH’s collection and the impact of this offence on its victims.

[137] Inksetter involved an offender with a collection similar in size and imagery as that of VH. As with VH, this was a first offence. The offender was found, however, to be at a low risk of re-offending, showed remorse, and had started seeing a psychologist immediately after being charged. On appeal, the offender was sentenced to three years in custody. In M.B., a two year custodial sentence was imposed even though the offender pleaded guilty, had no criminal record, and expressed remorse. The offender in that case possessed a collection of child pornography that was comparable in size to that possessed by VH, but which focused less on explicitly violent sexual acts with very young children. The court also found that he had a prospect of rehabilitation. Walker also involved a first-time, middle-aged offender who denied that he had any sexual interest in children and expressed no remorse. His collection was much smaller, but featured images similar to those in VH’s possession. He again was sentenced to two years.

[138] Each of these cases was, in some respect, less serious than this case. The offenders in Inksetter and M.B. both expressed remorse and had some prospect of rehabilitation. The collection in M.B. was the same size as VH’s collection, but the images were less abhorrent. The offender in Walker had a much smaller collection than VH. His conduct therefore victimized fewer children.

[139] The Crown suggested two years for the possession count, but I again infer that this is after taking into account Gladue factors. I find that an appropriate sentence at this stage of the analysis is three years. As with the sentence for making of child pornography, this sentence should be consecutive to other sentences imposed.

The impact of Gladue factors, the conditions of pre-sentence custody, and the totality principle

[140] I have concluded that VH’s experiences and legacy as an Indigenous person mitigate his moral blameworthiness. The total sentence he receives should reflect this.

[141] VH’s experience since being taken into custody on August 2, 2019 should also be considered.

[142] There have been many lockdowns during VH’s incarceration due to Covid-19 and resultant staffing shortages. Some of these lockdowns, when VH was housed in a dorm or when the lockdown lasted less than 6 hours, would not have affected him significantly. When VH was not in a dorm, however, a lengthy lockdown dramatically reduced his access to any social interaction or activities outside his cell. Based on the records filed, as of March 27, 2022, VH was subject to lengthy lockdowns on 15 days in 2019; 53 days in 2020; 90 days in 2021; and 41 days in 2022. This amounts to 199 days spent in conditions of near total isolation.

[143] As well, in June 2021, VH was attacked by a group of inmates. He testified that he was sitting watching TV, when he was hit on the back of his head, 6 or 7 times, then stomped on when he tried to escape and fell. According to VH, he felt the effects of a concussion for about a month. He had two sprained ankles that still bother him and bruises all over his body and face. He was sent to the hospital for a CT scan of his head and spent two days in medical segregation after returning. He requested a return to segregation a few weeks later, due to ongoing issues with his fellow inmates.

[144] The records filed by the defence largely support VH’s account of his injuries. An accident/injury report and extract from his medical chart show that he had swelling on the back of his head; bruises on his face, mouth, and back; swelling on both eyes; and a small cut on his ear. A CT scan report shows that there was sufficient concern about his injuries to send him to the hospital, although the scan did not reveal any internal bleeding or fracture.

[145] The Crown points out that there is no evidence corroborating VH’s testimony that the attack was unprovoked and argues that VH is not a credible witness. VH’s testimony about the attack was not shaken in cross-examination. He gave the same account to Dr. Gray, who found some criteria for a diagnosis of PTSD as a result of the attack. I find that VH was assaulted while at Penetanguishene, and that this event has caused him to be irritable and more inclined to avoid other inmates.

[146] Covid-19 pandemic restriction conditions are circumstances that may reduce the sentence imposed: R. v. Marshall, 2021 ONCA 344. I find the assault and its aftermath also inform an appropriate and just sentence.

[147] A final consideration is the totality principle. This principle “requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender”: R. v. M.(C.A.), 1996 230 (SCC), [1996] 1 SCR 500, at para. 42. In assessing whether totality calls for a reduction in sentence, the court should consider the moral culpability of the offender, the gravity of the offences, and the harm done to victims: R. v. Ladouceur and Traverse, 2008 MBCA 110, at para. 70; see also R. v. D.G.F., 2010 ONCA 27, at para. 20. In the words of the Manitoba Court of Appeal, “The higher the degree of moral culpability, the less likely the total sentence will be reduced to any great extent, if at all”: Ladouceur and Traverse, at para. 70. Given the extremely high moral blameworthiness and the gravity of the offences in that case, the totality principle in that case resulted in only a “slight” reduction, from a 16 year total sentence to a 14 year total sentence.

Conclusion on an appropriate and just sentence

[148] Although VH’s sexual offences are very serious, I find that the cumulative sentence derived from calculating each concurrent sentence results in a total that exceeds VH’s overall moral culpability, taking into account Gladue factors and his experience in pre-sentence custody. Although rehabilitation is not the primary goal in this case, it remains an important consideration. Having considered the whole of the circumstances, I accept the Crown’s submission that twelve years in custody will accomplish the primary goals of deterrence and denunciation, while respecting the need for proportionality.

[149] For administrative purposes, the resulting sentence is seven years for each of the charges of incest and sexual exploitation, to be served concurrently; and consecutive sentences of one and a half years for making child pornography; six months for criminal harassment; and three years for possession of child pornography.

What credit should VH get for time served?

[150] As of today’s date, VH has been in custody for 1161 days, or just over three years and two months. It is appropriate to apply a 1:1.5 factor, given the impact of shorter Covid lockdowns while he has been in custody, including the recent 9-day adjournment from September 27 as a result of a Covid outbreak at the Ottawa Carleton Detention Centre. As a result, VH receives a credit of 1746 days. Calculated to the nearest month, this amounts to a credit of 58 months, that is, four years and ten months. This shall be applied to the sentences to be served concurrently for sexual exploitation and incest.

[151] The ancillary orders requested by the Crown are appropriate given the need to minimize the risk of any reoffence.

Disposition

[152] Please stand, Mr. H.

[153] You sexually exploited FH, a vulnerable, much younger, family member who trusted you and looked up to you. When she tried to end your relationship, you hounded her with phone calls and messages, and threatened her and CW. Your actions have resulted in serious and lasting harm to FH. You really hurt someone you say you care for. You need to acknowledge what you did and take responsibility for it.

[154] Your denial of your interest in child pornography concerns me deeply. Seeking out this pornography is not a victimless crime. The children who were sexually abused in those images must live not only with the memory of being abused, but with the fear that they will be recognized by those who have seen that abuse. So the abuse never ends. I do not believe that you just happened to come across the pornography found on various devices in your possession, given the search terms in your internet history, the size of your collection, and your viewing of child pornography while you were having sex with FH. I hope you listened to the victim impact statements from some of the children in the videos. You need to acknowledge that you are aroused by images of very young children being forced to have sex, so that you can get help in dealing with this.

[155] I sentence you to twelve years in custody. Taking into account the time you have already served, seven years and two months remain in your sentence. While you are serving the remainder of your sentence and after you are released, I urge you to get counselling with respect to your interest in violent sexual acts involving children and appropriate sexual boundaries in general.

[156] You are also ordered as follows:

• In conjunction with the convictions for sexual exploitation, incest, and the making and possession of child pornography, you shall comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, pursuant to s. 490.012 of the Criminal Code for a period of twenty years from this order.

• In conjunction with the convictions for sexual exploitation and incest, you shall provide a DNA sample further to s. 487.051(1) of the Criminal Code.

• Based on the convictions for sexual exploitation, incest, and criminal harassment, you shall not possess any firearm or other weapon, ammunition or substance listed in s. 109(2)(a) of the Code for a period of ten years from the date that you are released from imprisonment, and you shall not possess any prohibited or restricted firearm or other weapons or ammunition or substance that are listed in s. 109(2)(b) for life.

• You shall not communicate, directly or indirectly, with FH during the custodial period of your sentence, pursuant to s. 743.21(1) of the Criminal Code.

• You shall not, for a period of ten years from the date of this order, be within two kilometres of any residence where FH ordinarily resides, or contact her, or any member of her family, directly or indirectly, by any means, pursuant to s. 161 of the Code.

[157] Given VH’s personal circumstances, the victim fine surcharge is waived for all counts.

Justice Sally Gomery

Released: October 7, 2022

R. v. V.T.H. 2022 ONSC 5668

COURT FILE NO.: 19-RA18048

DATE: 2022/10/06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

V.T.H.

SENTENCE

Justice Sally Gomery

Released: October 7, 2022

[^1]: A mandatory minimum for this offence was found to be unconstitutional in R. v. John, 2018 ONCA 702. I did not receive submissions on the mandatory minimum of one year for the making of child pornography, but I do not find this issue relevant to sentence given my conclusion that an appropriate range, in this case, exceeds one year.