ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R. v. King, 2023 ONSC 2305

COURT FILE NO.: CR-20-0192-00

DATE: 2023-04-14

B E T W E E N:

HIS MAJESTY THE KING

B. Rudnick, for the Crown

• and -

SKYLER KING

K. Matthews, for the Accused

HEARD: April 14, 2023

at Thunder Bay, Ontario

Madam Justice T. J. Nieckarz

Reasons For Sentence

OVERVIEW:

1The Accused was charged with 11 counts of various offences related to 45,322 images of child pornography pictures and videos found to be in his possession.

2On July 25, 2022, the Accused plead guilty to count 5 on the Indictment, namely that between November 15, 2018, and April 30, 2019, he made child pornography images or videos contrary to s. 163.1(2) of the Criminal Code, R.S.C. 1985, c. C-46.

3On January 13, 2023, the Accused plead guilty to the following counts on the Indictment:

Count 2: Between November 15, 2018, and June 14, 2019, he did transmit, make available or distribute child pornography images or videos contrary to s. 153.1(3) of the Criminal Code. [make available child pornography]

Count 3: Between February 20, 2019, and June 14, 2019, he had in his possession child pornography contrary to s. 163.1(4) of the Criminal Code. [possession of child pornography]

Count 4: Between November 15, 2018, and April 30, 2019, he did surreptitiously make a visual recording of a person in circumstances that give rise to a reasonable expectation of privacy, contrary to s. 162(1)(c) of the Criminal Code. [voyeurism]

Count 7: Between November 15, 2018, and April 30, 2019, he exposed his genital organs, for a sexual purpose, to a person who is under the age of 16 years, contrary to s. 173(2) of the Criminal Code. [expose genitals to under 16]

Count 9: Between November 15, 2018, and April 30, 2019, by means of a telecommunication, he communicated with a person he believed to be under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under s. 163.1, contrary to s. 172.1(1)(a) of the Criminal Code. [luring under 18]

Count 10: Between November 15, 2018, and April 30, 2019, by means of a telecommunication, he communicated with a person he believed to be under the age of 16 years, for the purpose of facilitating the commission of an offence with respect to that person under s. 173(2) contrary to s. 171.1(1)(b) of the Criminal Code. [luring under 16]

4In exchange for Mr. King’s plea, all remaining counts on the Indictment were withdrawn by the Crown.

5A statement of agreed facts was reached setting out the details of the offences and was entered as an exhibit at the sentencing.

6While the charges have been on a resolution track since the preliminary inquiry, the Crown and the Accused have not been able to agree as to what is a fit and appropriate sentence for Mr. King.

7The Crown takes the position that 7 years, less credit for time served at a 1.5-1 ratio, is a reasonable and just sentence in the circumstances of this case. The Crown argues that generally, facts such as those before the court would warrant a sentence in the double digits. The Crown states it has taken all aggravating and mitigating factors into account in determining this very reasonable and “lenient” position, including but not limited to triable Charter issues presented by this case. Anything less, the Crown argues would render the sentence unfit, as it will not properly take into consideration the extent of Mr. King’s child exploitation and the need to significantly denounce and deter the behaviour behind this devastating and pervasive social problem.

8The Defence acknowledges that 7 years’ incarceration would not be an unfit sentence. The Defence does not seek to minimize the exploitation and victimization of children represented by Mr. King’s actions. The Defence does, however, argue that a more just and fit sentence on the facts and circumstances of this case is one that focuses on rehabilitation as much as denunciation and deterrence. The Defence submits that a 4-year sentence, with sufficiently enhanced credit given for pre-sentence custody to take into consideration the in-custody conditions endured by Mr. King and the post-custody stringent bail conditions, such that Mr. King is left with two years less a day to serve in a provincial correctional institute, combined with 3 years of probation, is more appropriate. The Defence argues that this is an approach that best accomplishes the goals of denunciation and deterrence, while ensuring that this young Indigenous offender has the best chance of rehabilitation upon release.

9As Justice H. Pierce acknowledged in R. v. Bushby, 2021 ONSC 4082 at paras. 2 and 3, judges are cognizant that sentencing a person is a life-altering event, not only for the Accused, but also for those close to him and those who have been victimized as a result of his conduct. This is no less true simply because we do not know who all of those victims may be, or because they may not know of this proceeding today. There will be those who think that this sentence is too harsh, and others who feel it is not harsh enough.

10In determining the sentence to impose I must be guided by the principles set out in the Criminal Code, and those set out in the case law that courts have developed. These reasons will set out those principles and other factors I have considered to arrive at the sentence.

FACTS:

Circumstances of the Offences:

11The Royal Canadian Mounted Police’s National Child Exploitation Coordination Centre (RCMP NCECC) received two tips pertaining to a user on KIK and Instagram who uploaded suspected child pornography.

12The tip information from Instagram provided the suspected child pornography image uploaded by the user of the account. It was a 14 second video depicting an adult female performing fellatio on a prepubescent male.

13After further investigation, police discovered that the Instagram account belonged to Mr. King, and a phone number associated with the Instagram account was also a cellular phone number registered to Mr. King.

14The tip information from KIK also provided the suspected child pornography that was uploaded and sent by the user account. This consisted of an image of two fully nude, prepubescent females. One female was laying with her legs spread, while the second female is shown bent over the first with her face near the genitals of the first female.

15KIK also provided sufficient information to lead the police to Mr. King. On June 14th, 2019, a search warrant was executed at Mr. King’s residence that resulted in several cellular and computer devices being seized. Mr. King voluntarily provided his password for his phone prior to being cautioned as to his rights. This became the subject of a potential Charter challenge.

16Police conducted forensic examinations of the devices. From these devices 45,322 unique child pornography pictures and videos were revealed. The statement of agreed facts breaks down in detail the exact number of images found on each device.

17The information obtained by police revealed the following:

a. Numerous communications with females under the age of 18. Mr. King sent these females images of child pornography and in many of the communications he asks that they send “naughty” images back to him. This happened with approximately 17 underage social media users. This constitutes “luring” of persons under the age of 18.

b. Mr. King communicated with 8 social media users that appear to be girls under the age of 16, sending them pictures of his penis. He requested “naughty” pictures back. When one user seemed confused by the request, he asked her to masturbate and touch herself. He sent further child pornography pictures to this user showing her what type of pictures he wanted from her. This behaviour constitutes luring of persons under the age of 16 and making sexually explicit material available to a child. He did so under the alias “Alex Jones”, which alias also re-distributed male child pornography, and requested similar images and video back from the users.

c. The examination of a Dropbox account controlled by Mr. King showed several videos sent to him from six young females using a social media application. They depict the sexual organs of these females for a sexual purpose or an explicit sexual act of a person or persons under age 18. To be saved to the Dropbox account, Mr. King would have recorded these videos, thereby also making child pornography.

d. Mr. King engaged in a conversation with a female social media user. This user sent Mr. King images of child pornography where the girls in the pictures are young and engaged in explicit sexual acts. The conversation takes on a violent roleplay of the sexual abuse of these young girls which Mr. King takes part in, describing what he would do to these children. Mr. King also sent the user images of child pornography.

e. 1101 images of child pornography were sent by Mr. King to 16 different social media users. In 11 of these conversations Mr. King received 185 images of child pornography.

f. Mr. King sent 41 profile screen captures of different users. The profiles were of children under 18 that Mr. King was able to obtain homemade child pornography from. Mr. King provided advice to many of these users on how they could get this material for themselves. In a conversation with user “NaughtyGirlsHmu”, the user took the information provided by Mr. King and created their own child pornography, which Mr. King received.

g. A detailed chart was provided in the statement of agreed facts showing the username, the number of child pornography and other images sent by Mr. King to the users, and the number of child pornography and other images he received back from them. Suffice it to say, it represents a voluminous amount of child pornography both sent and received.

h. Mr. King would also visit various streaming and social media sites and record children exposing themselves and/or engaging in explicit sexual acts. These are live streams. Police uncovered 163 different live stream victims ranging in age from 3 years to 16 years old. In total, Mr. King had in his possession over 1800 screen captures of the different victims, most of which meet the definition of child pornography.

i. Mr. King interacted with some of the children in sexual abuse live streams. He was seen to send them digital gifts, which could be redeemed by the user for money. To get these digital gifts, Mr. King would have to pay the live streaming app money. He paid $158.19 to enter rooms or buy digital gifts. One video showed two child victims. When a user makes a money motion, several users including Mr. King send digital gifts to the children’s user account. The children then remove their clothing and start sexual acts with each other. In one video Mr. King sent a digital “flower”, causing the child to remove her panties exposing her vagina. In another, he sends a “flower”, and the child lifted her shirt to expose her breasts to the camera. In the images examined by police Mr. King sent digital gifts to over ten child user accounts, some on multiple days, while the live stream of that child’s sexual exploitation and abuse was taking place. In addition to digital gifts, certain “rooms” where the child sexual abuse live streams took place were “pay-to-view”, meaning that Mr. King would pay money to the user account hosting the room in order to be able to stay in the room to watch.

j. Mr. King not only demonstrated a knowledge of where to find child sexual exploitation images and live streams himself, but he also shared this knowledge with others. He would tell them how and where to find children in live streams. Mr. King also distributed to other users many of the images he kept and recorded. With respect to the live streaming, these platforms did not have a built-in recording component, suggesting that Mr. King would have recorded these acts of child sexual abuse surreptitiously.

k. Many of the victims depicted in the images were not from Canada. The victims were from 8 different countries. Only 8 of the victims were able to be identified, interviewed, and safeguarded from further exploitation and abuse.

18The court was provided with a representative sample of the child pornography images. The images were disturbing to say the least. They depicted young girls at a variety of ages. Images include bondage and sexual assault in the form of intercourse with infants, explicit sex acts including oral sex and intercourse with very young girls, images of a young child inserting something into her vagina, other young girls (some perhaps teenaged and others perhaps younger – ages are difficult to tell) exposing themselves, and one screen capture of a live stream with a young girl exposing her breasts and an older woman standing behind her. Given the ages of these children and the acts depicted, most of them are victims of horrific and probably repeated sexual assaults.

Circumstances of the Offender:

19Sentencing is an individualized process. The circumstances of the offender are to be taken into consideration in determining a fit sentence.

Gladue report:

20Mr. King is an Indigenous offender. A Gladue report was prepared by Diana Lidemark, Gladue Writer, Thunder Bay Indigenous Friendship Centre on March 28, 2022. Some Gladue factors are evident and require consideration in determining a just and sit sentence.

21Mr. King is a 29-year-old Anishinaabe man registered at Kiashke Zaaging Anishinabek First Nation (KZA or Gull Bay First Nation). Mr. King’s mother is also from KZA. Mr. King and his mother are “Status Indians” under the Indian Act.

22Mr. King’s father is not Indigenous but was raised in KZA when his mother remarried a KZA member. Mr. King had two brothers.

23Mr. King’s maternal grandparents are residential school survivors. Their residential school was described in the report as one of the better schools, but this does not mean that this experience has not impacted Mr. King’s family. While Mr. King’s grandparents seem to have fared better than most, his mother described frustration at her parents’ unwillingness to talk about their experiences, and with their insistence that she remain ‘quiet’ even in the face of wrongful conduct. The report gives the impression that Mr. King’s grandparents were good, hard-working, family-oriented people, who likely suffered some trauma from their past experiences, but who adopted an attitude of keep your head down and keep going.

24Mr. King’s parents were raised in the KZA community. The report describes a community steeped in tradition, but not without challenges. His mother described the lack of proper school facilities when she was growing up and harshness of on-site school conditions. She described having to leave her family for secondary school. She did not want these experiences for her own children and left the community.

25Mr. King appears to have had a relatively average upbringing. His parents have remained together and committed to their family, despite occasional difficulties. Mr. King’s parents have demonstrated their love and commitment to their children when faced with mental health challenges experienced by Mr. King and his brother. They continue to demonstrate this love and commitment to this day, stringently supervising Mr. King’s bail.

26Mr. King was described by himself and his parents as an extremely shy, quiet, child. His mother describes him as happy, non-violent, never getting into trouble, and that he tried to join as many things as possible in school. He often succeeded with his endeavours, frequently bringing home awards.

27Mr. King says he was an introverted and lonely child. He barely spoke, even to friends and family. He did not have many friends. He kept to himself, was non-confrontational, and appears to have adopted his grandparents’ mantra of keeping his head down and keeping quiet. He had no criminal record prior to these charges. He attributes some of his online activity to this extreme shyness, suggesting he had hoped it would be easier to connect with people online, but ultimately it was not. He describes social situations in general as being stressful and a source of extreme anxiety for him. Despite this, he kept trying to find ways to overcome his issues, either through participation in school events, working, or online activities.

28When Mr. King was 19 years-old he experienced some issues with depression, causing him to attempt suicide. Alcohol was a factor. While there is no indication in the Gladue or Pre-Sentence Report (PSR) that this has been an ongoing problem for Mr. King, submissions from his counsel suggested otherwise and that Mr. King is now sober. Mr. King does not seek to attribute his offending behaviour to alcohol consumption.

29When Mr. King was incarcerated, he had some thoughts of self-harm and suicide, but was able to seek out help. Mr. King has been seeing a counsellor privately for some time now, with considerable success. In the Gladue report he advises the writer that he feels counselling has helped him a fair bit with depression and other issues. He is committed to healing. He wishes to plan a future for himself and return to some form of education to accomplish his goals.

30Mr. King’s counsellor, Ann Camber distinguishes him from other clients she has treated with similar charges. She tells the Gladue writer that he demonstrates empathy and an understanding that what he did was wrong. She described Mr. King as having come to have a deeper understanding that the victims of his crime were vulnerable individuals. She says he also has an appreciation of how his actions have impacted his family. She expresses her view that he is remorseful and has the desire and ability to change. She expressed:

I really do think that while he got into the bad habit and let it go way beyond than it should have, he is not an evil person.

31Ms. Camber further explained to the Gladue writer the focus of her treatment with Mr. King. Treatment has focused on exploring the triggers and stressors that led Mr. King to the habitual behaviour of engaging with child pornography at various levels. He describes an extended family member exposing him to child pornography at an early age, his feelings of isolation and loneliness, and how he started trying to find his own (albeit inappropriate) ways of trying to cope.

32Overall, the Gladue writer was satisfied that Mr. King has “grown up” during this process, learned about himself, his triggers and his emotional needs and has begun the work to acknowledge these things. Even though Mr. King does not describe himself as particularly connected to his culture, the Gladue writer and Ms. Camber recognize the potential benefits of cultural activities and connections to him. The Gladue writer concluded that he is ready for change, ready for support and ready to plan a future for himself. This is tempered by the following caution from Ms. Camber:

We can’t predict how he will behave when he does have access [to the internet]. But he is definitely the most willing to work on stuff among the people I’ve worked with similar charges. [sic]

33The Gladue writer sees a key component of Mr. King’s rehabilitation being the development of a connection to his community history, culture and traditions to supplement the strong family support and values his parents impress upon him. Alternatives to incarceration are recommended, including a community sentence or probation plan, ongoing counselling, engagement with the Anishinabek and Employment Training Services to improve employment outcomes, participation in a 12-week program “Kizhaay Anishinaabe Niin Program” through the Thunder Bay Indigenous Friendship Centre and other like programs.

Pre-Sentence Report:

34The pre-sentence report also provides some additional insight into Mr. King’s background. Tragically, Mr. King and his mother were witnesses to the death of his younger brother in the family home in April 2022, following a struggle with mental health. This has, understandably, had considerable impact on the family.

35Mr. King’s only romantic relationship or sexual encounters have been with age- appropriate females. Mr. King struggles to meet people due to his extreme introverted nature. Social anxieties have been somewhat debilitating for him and caused him to stop attending college after one year. Mr. King does work, has worked at the same seasonal job for eight years, and is described as hard-working and reliable. He was described by collateral sources are overall helpful, caring, and kind.

36Mr. King provided some further insight into his offending behaviour. He described his exposure to pornography at a young age by an older extended family member. He recalled being aroused and intrigued, prompting him to seek out further explicit material. He did this into his teen years, accessing pornography secretly through his cellular phone. His low self-esteem and isolation led to increasingly compulsive use of the internet as a coping mechanism. By the age of 21, he began seeking “more deviant content”, recalling a desensitization to mainstream pornography. He had normalized it. He was first exposed to child pornography at age 21. He sought companionship and acceptance from those who engaged in similar behaviour. For approximately one year prior to his arrest, he became fixated on accessing all types of pornography; mainstream, non-traditional and child pornography. He became consumed with and fixated on these sites and would spend hours viewing explicit material.

37Mr. King was honest and forthright with the PSR writer, admitting his sexual attraction to underage females with an approximate age of 13 years. He denies any attraction to infants and children despite evidence confirming he engaged in exploitative online interactions with those as young as 3 to 5 years.

38The PSR writer expressed that Mr. King lacked insight at the time of his behaviour into the consequences of the child pornography he viewed and participated in. He has since accessed rehabilitative counselling services and has a greater understanding of the gravity of his offending behaviours. Local law enforcement expressed concern about the possibility of escalation of behaviours and reoffending due to the severity of what he was engaged in.

Remorse:

39Mr. King appeared virtually and spoke at the sentencing hearing. He expressed remorse for his actions and the impact on his family. He stated that he cannot change what has been done, but he knows what he must do in the future, so it does not happen again. This includes no internet, no pornography, and a need to continue to seek support from family and counsellors. Mr. King expressed a hope that someday his family and friends can forgive him. He did not seek the forgiveness of his victims. Nonetheless, Mr. King gave the impression he was sincere in his apology.

Victim Impact:

40Unfortunately, many of the victims of child pornography will never be identified. That does not mean they are not impacted by the actions of the offender. This is true regardless of the numerous other offenders that also repeatedly victimize them.

41Many of these children do not even live in our country. Their lives and the circumstances that necessitate their participation in the types of acts demonstrated in the pornography viewed and participated in by the demand created by the actions of Mr. King and others are unimaginable. Even children not from our country are deserving of the protection of our courts.

42The Crown submitted a Community Impact Statement from the Canadian Centre for Child Protection Inc. (CCCP), by its General Counsel, Monique St. Germain. The CCCP is a non-partisan registered Canadian charity that provides programs and services to the Canadian public aimed at reducing all forms of child victimization through the creation, distribution and viewing of child sexual abuse material (CSAM).

43Ms. St. Germain, in an affidavit filed with the court, explained how the CCCP became involved with other organizations to bring together survivors of CSAM and those who work with them. Those survivors have become known collectively as the “Phoenix 11”. Members of the Phoenix 11 have developed a written community impact statement to be filed in court proceedings such as this to give child victims a voice. It is representative of their experience with respect to the harm or loss they have suffered, and that they continue to suffer each time an image of them continues to be shared.

44The entire statement of the Phoenix 11 is impactful. What is most striking to me is:

a. Many of these children were forced into child pornography by family members;

b. Even though they are now adults, they are repeatedly victimized due to the nature of the internet and the ongoing sharing of the images of their abuse, such they “can never really be free” and struggle to survive their victimization daily;

c. Every image, every video, represents a serious violation of their dignity and their privacy, and represents only a small part of the horrific abuse they endured;

d. Every time an image or video is shared again, it represents yet another violation and repeated victimization of these individuals;

e. They are only a small representative sample of a community of people who have been sexually abused, had that abuse recorded and used for the pleasure of others; and

f. The impact on these individuals is life-long. They were robbed of their childhood. They struggle with intimate connections. They all suffer in varying degrees from different stress and trauma related conditions. They struggle in school because of their trauma. They struggle in work because of their trauma. Their struggles extend to all aspects of their lives.

SENTENCING PRINCIPLES:

45Section 718 of the Criminal Code sets out the principles and objectives of sentencing:

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 that have one or more of the following objectives:

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

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

c. to separate offenders from society, where necessary;

d. to assist in rehabilitating offenders;

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

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

46Denouncing unlawful conduct, also known as the principle of denunciation, refers to public condemnation of the criminal behaviour.

47The principle of deterrence reflects a message to be sent to the offender (specific deterrence), or to the community (general deterrence), that breaking the law by committing a crime of this nature will attract punishment and consequences. The hope is to dissuade future criminal conduct for fear of attracting punishment.

48Section 718.1 requires that the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the offender. In other words, the more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the harsher the sentence will be: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.

49Further sentencing principles that must guide the court are set out in s. 718.2 of the Criminal Code.

50Section 718.2(a) requires that a sentence be increased to account for any aggravating factors or reduced to account for any mitigating circumstances. Aggravating circumstances generally tend to make the offence more troubling while mitigating circumstances moderate the severity of the offence: R. v. Bushby, at para. 161.

51Sections 718.2(d) and (e) require restraint in sentencing, acknowledging that sentences are not only intended to be punitive, but also remedial. Imprisonment should be the penal sanction of last resort, to be used only where no other sanction or combination of sanctions are appropriate to the offence and the offender.

52Section 718.2(e) directs the sentencing judge to approach the sentencing of Indigenous offenders differently. It is a recognition that there are unique systemic or background factors that may have played a part in bringing the Indigenous offender before the court. There should be a focus on restorative justice: R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 (S.C.C.), at para. 93.

53Even when the circumstances warrant a period of incarceration for the Indigenous offender, the length of the term must be carefully considered by the court. While in some instances the sentence of an Indigenous offender may be less than that imposed on a non-Indigenous offender, this will not always be the case, particularly for more serious and violent offences. Section 718.2(e) does not mean that the sentences of Indigenous offenders should automatically be reduced. The sentence imposed must still take into consideration all the relevant sentencing principles, factors of the offence, and circumstances of the offender: R. v. Gladue, at para. 93.

54To properly consider the factors applicable to Indigenous offenders as required by the Criminal Code and as set out in the jurisprudence, the sentencing judge requires information pertaining to the accused. Judges may take judicial notice of the broad systemic and background factors affecting Indigenous people. I have done so in determining Mr. King’s sentence. Furthermore, additional case‑specific information is required which outlines the systemic or background factors applicable to this particular offender, along with possible sentencing procedures and sanctions. This is the aim of the Gladue report referred to earlier in this decision.

Sentencing Principles for Child Sexual Offences:

55Section 718.01 of the Criminal Code requires that in sentencing matters pertaining to the abuse of a person under the age of 18 years, the court is to give primary consideration to the objectives of denunciation and deterrence.

56The Supreme Court of Canada in R. v. Sharpe, (2001) SCC 3, at para. 92 acknowledged the link between child pornography and the abuse of children:

[92]…Children are used and abused in the making of much of the child pornography caught by the law. Production of child pornography is fuelled by the market for it and the market in turn, is fueled by those who seek to possess it. Criminalizing possession may reduce the market for child pornography and the abuse of children it often involves. The link between the production of child pornography and the harm to children is very strong. The abuse is broad in extent and devasting 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.

57The words of the Phoenix 11 confirm the Supreme Court’s concerns.

58In R. v. Friesen, 2020 SCC 9, the Supreme Court of Canada acknowledged the devastating harm done to children who are the victims of sexual offences. Luring is encompassed in the category of child sexual offences. Child pornography, while not the focus of Friesen, was specifically discussed in that case. The Supreme Court expressed concern that the prevalence of child sexual offences is increasing and is perpetuated by the people who watch and distribute videos and images through the internet.

59At para. 1 of Friesen, the Supreme Court stated:

1Children are the future of our country and our communities. They are also some of the most vulnerable members of our society. They deserve to enjoy a childhood free of sexual violence. Offenders who commit sexual violence against children deny thousands of Canadian children such a childhood every year. This case is about how to impose sentences that fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children.

60At para. 5 of Friesen, the Supreme Court gave a strong direction to trial courts with respect to sentencing in matters involving sexual offences against children:

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

61This was reinforced at para. 76 of Friesen when the Supreme Court stated:

76Courts must impose sentences that are commensurate with the gravity of sexual offences against children. It is not sufficient for courts to simply state that sexual offences against children are serious. The sentence imposed must reflect the normative character of the offender’s actions and the consequential harm to children and their families, caregivers, and communities (see M.(C.A.), at para. 80; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90 (S.C.C.), at para. 35).

62At para. 90, the Supreme Court noted that the fact the victim of an offence is a child increases the offender’s degree of responsibility:

90Put simply, the intentional sexual exploitation and objectification of children is highly morally blameworthy because children are so vulnerable (R. v. Morrison, 2019 SCC 15, 2019 SCC15, [2019] 2 S.C.R. 3 (S.C.C.), at para. 153). As L’Heureux-Dube J. recognized in R. V. W. (L.F.), 2000 SCC 6, [2000] 1 S.C.R. 132 (S.C.C.), ‘As to moral blameworthiness, 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. 31, quoting R. v. W. (L.F.) (1997), 1997 CanLII 10868 (NL CA), 155 Nfld. & P.E.I.R. 115 (Nfld. C.A.), at para. 117, per Cameron J.A. (‘L.F.W.(C.A.)’)). Offenders recognize children’s particular vulnerability and intentionally exploit it to achieve their selfish desires (Woodward, at para. 72).

Comparative Cases:

63Another important consideration in sentencing is that similar cases and similar offenders should receive similar sentences. This is sometimes known as the “parity principle”. To achieve parity, judges are often guided by how other cases have been decided. Having said this it must be recognized that every case is to be decided based on its own unique set of facts.

64The Crown and the Defence have each submitted cases for my consideration, and in support of the sentence they seek. I have carefully reviewed and considered each one, even if not specifically referred to in this decision.

POSITIONS OF THE CROWN AND THE DEFENCE:

The Crown’s Position:

65In seeking a 7-year custodial sentence (less credit for time served), the Crown asks that I apportion the sentence to each Count as follows:

Count #5 – Make child pornography – 3 years

Count #4 – Voyeurism – 2 years concurrent to count #5

Count #3 – Possession child pornography – 1 year consecutive

Count #9 & 10 – Luring – 3 years consecutive to making child pornography

Count #7 – Exposing – 2 years concurrent to luring

Count #2 – Make available – 1 year concurrent to luring

66The Crown argues this is a case that calls for a significant custodial sentence. The most serious of the charges relate to the making of child pornography and luring. Given the sexual exploitation of children involved with Mr. King’s actions, Friesen dictates that I focus more on deterrence and denunciation and less on rehabilitation or Gladue factors.

67The Crown wishes it to be noted that it has moderated its approach to sentencing in this case to take into consideration that there was a triable Charter issue with respect to Mr. King voluntarily providing his password for his devices. At the point that he did so, there is an argument that he was detained, and not given his s. 10 rights. If a Charter breach was found, it would be open to a judge to exclude the evidence obtained as a result of the breach. This would have considerably impacted the Crown case. While the Crown and the Defence may differ as to what the outcome of such an argument may have been, the Crown recognizes Mr. King’s plea as a significant mitigating factor in the face of such argument.

68Despite this, the Crown points to several aggravating factors:

• The ages of the children. Many of the images are of very young children. It is impossible to know their exact age, but they are definitely pre-pubescent.

• There is grooming evident in the behaviour of Mr. King with respect to the luring. He asked for pictures. He sent them images showing what he wanted back from them. This also exposed the child, to child pornography. He made requests for the victims to perform in the live streams and provided some financial support by way of his payments to these streams. In doing so he perpetuated the abuse of these children.

• The use of a rouse or misrepresentation of his identity as evident in the Alex Jones account in the act of luring. He represented himself as younger than he is.

• He redistributed images he received from children, presumably without their knowledge.

• The vulnerability of the victims is aggravating. Many of these children live in places with lesser forms of child protection and likely in situations of poverty.

• The masturbation material sent to receive similar material back in return.

• The violent role playing.

• The sheer number of victims is the most aggravating feature.

69With respect to the applicable ranges or sentences imposed in similar cases, the Crown provided a useful chart of numerous cases, but specifically notes the following:

• Luring

The Crown notes that Justice Code in R. v. Moolla, 2021 ONSC 3702 agreed that the applicable range for child luring post Friesen is 3 – 5 years. Justice Code imposed a sentence of 3.5 years for a single count of child luring. In R. v. Bahamonde, 2022 ONSC 916, Justice Forestell also accepted 3 – 5 years as the appropriate range, imposing on a youthful, first offender sentences of 3.5 years and 4 years for each count of luring.

• Make child pornography

There is a large range depending on the facts. The Crown cites:

R. v. Chicoine, 2019 SKCA 104: 2 years

R. v. Pitts, 2016 NSCA 78: 2 years for making child pornography

• Make available child pornography

Courts have recognized the seriousness of this offence, as the child pornography community would be as prolific if it were not for sharing between members. The Crown notes the distinction in the case law between peer-to-peer sharing or individuals who are more actively distributing. The latter generally attracts 2.5 – 3 years. The Crown argues that Mr. King was engaged in more active distribution.

• Possession of child pornography

The Crown submits that the range is generally 12 months to 2 years less a day but may be higher. The presence of more aggravating factors, including a sizable collection will generally place the offending conduct at the higher end of the range. The Crown relies on R. v. John, (2018) 2018 ONCA 702, 142 O.R. (3d) 670.

70The Crown argues that the Gladue factors present in this case should not significantly impact the sentence given the seriousness of the crimes committed and the Supreme Court’s clear direction to focus on denunciation and deterrence over rehabilitation with respect to child sexual offences.

The Defence Position:

71The Defence does not dispute the ranges suggested by the Crown.

72In support of a sentence of 4 years, with enhanced credit for time served to reduce the sentence to 2 years’ less a day and 3-years’ probation, the Defence agrees that denunciation and deterrence are paramount considerations but urges me to give greater weight to the Gladue factors than the Crown suggests, greater weight to the mitigating factors of the plea and expressed remorse, consider Mr. King’s youth at the time the offences were committed, and give greater consideration to the need for rehabilitation.

73In particular, the Defence urges me to consider:

a. While denunciation and deterrence are important, rehabilitation of this youthful Indigenous offender that is consistent with the Gladue and PSR reports will be accomplish the aims of sentencing. This requires a careful balancing of the Friesen call for greater sentences for child sexual offences, against the Gladue call for consideration of the unique challenges faced by Indigenous persons.

b. Jail is not the preferred option in circumstances such as this in which there is a strong prospect of rehabilitation. Probation will still allow for supervision of Mr. King but will allow for greater input by the court as to what post-custody monitoring should look like and will allow for rehabilitative opportunities. Someone who wants to be rehabilitated, and is capable of it, should be given the opportunity and not derailed by a lengthy penal sentence.

c. Giving Mr. King a sentence that requires him to serve in a federal penitentiary will remove him from his family and society when a lesser, but still impactful sentence makes more sense.

d. Mr. King has strong family support to assist in ensuring the success of his rehabilitation.

e. Mr. King is a genuinely regretful, remorseful individual who now appreciates the gravity of his actions. He was an individual who struggled with his own mental health and previously lack insight into the impact of his actions on the victims. This is no longer the case, and he is motivated to change. His commitment to counselling demonstrates this. His counsellor’s opinion supports his ability to change.

f. Mr. King was subject to conditions while incarcerated that warrant credit for pre-sentence custody over and above the usual 1.5 – 1 ratio. He seeks additional credit for time served of between 3 to 6 months (or more if I feel it appropriate given the Gladue factors and PSR). He relies on R. v. Duncan, 2016 ONCA 754. He notes he was placed in 5 or 6 different facilities in the short time he was incarcerated. He was moved away from friends and family. As a child sex offender, he was subjected to threats and harassment from other inmates. He was incarcerated during the COVID-19 pandemic and subject to frequent lockdowns. In the Thunder Bay District Jail, he was subject to overcrowding conditions that did not even see him have a proper bunk for a period of time.

g. Mr. King has been subject to strict bail conditions since his release, which have effectively resulted in him being “jailed” in the community. He has been required to live with his parents (sureties) and not been permitted outside of the home except in the presence of a surety. He has been subjected to the strictest of conditions and this warrants additional reduction in his sentence of between 6 to 12 months in accordance with the principles set out in R. v. Downes, 2006 CanLII 3957 (ON CA), [2006] O.J. No. 555 (ON CA).

74In support of Mr. King’s position on sentencing, Defence counsel relies on R. v. M.B., 2020 ONSC 7605. In M.B., Justice McCarthur was tasked with determining the sentence for a 58-year-old non-Indigenous offender, with no criminal record and a positive PSR report, who pled guilty to:

• Make available child pornography

• Two counts of possessing child pornography

• Making child pornography

• Luring

• Breach of recognizance by possessing a device capable of accessing the internet.

75A forensic analysis of M.B.’s computer revealed that he had over 49,000 images of child pornography. Most of them were single images with some videos, a small number of which M.B. had made. M.B. had surreptitiously taken numerous pictures of a neighbour child and unknown children, most of which focused on the anal and vaginal areas of the child. He had distributed one image of a young girl in a bathing suit to someone in the Philippines. He uploaded an image of “a guy having sex with a young girl”. He recorded 85 videos of live stream naked young females conducting themselves in a sexual manner, some of which he is recorded within an inserted screen masturbating. In some of the videos he is directing the acts to be performed by making sexual comments. He continued to commit child pornography related offences while on bail.

76After reviewing Friesen and other cases it was determined that a just and fit sentence was 4.5 years, less credit for time served and enhanced credits, bringing the remaining sentence to under 2 years, with 3 years’ probation, McCarthur J., noted:

a. While denunciation and deterrence are the paramount sentencing objectives, rehabilitation and other sentencing objectives cannot be ignored, particularly where there are prospects for rehabilitation. He found that rehabilitation was possible in this case.

b. Enhanced credit of 200 days is warranted under Duncan and Downes. Even though there were limited COVID-19 cases at the facility M.B. was incarcerated at, the conditions were restrictive beyond usual protective custody due to widespread and frequent general lockdowns, with limited access to programs and visitors.

c. This is still a substantial sentence that should send a strong message to others who venture into the world of child pornography.

After credit for time served and enhanced credit, M.B. was able to serve the remainder of his sentence in a provincial correctional institute, which McCarthur J., recommended should have a focus on sexual deviancy. It was noted that this was a substantial sentence that resulted in M.B. being in custody and under supervision for almost another 5 years.

77Taking into consideration that M.B. was not a youthful offender in his 20’s like Mr. King, was not Indigenous with no Gladue factors, and had committed additional offences while on bail, counsel for Mr. King argues that M.B. supports the sentence sought by Mr. King, even in a post-Friesen environment.

DISCUSSION:

78I agree with both counsel that the sentence sought by the Crown is in the range of appropriate sentences. The question is whether it is the most fit sentence in these circumstances, or whether a lesser sentence as advocated for by the Defence is more appropriate.

79The central principle is that any sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, taking into consideration the aggravating and mitigating factors of both the offence and the offender.

80Even though the court is directed by Friesen and s. 718.01 to emphasize deterrence and denunciation with respect to offences against children, the principles of restraint and proportionality cannot be forgotten: R. v. Lacasse, 2015 SCC 64, at para. 133.

81This is particularly so in the face of s. 718.2(e) of the Criminal Code and Gladue factors. While I agree with the Crown that denunciation and deterrence as contemplated in Friesen should still take precedence and demands a significant custodial sentence, I disagree that Gladue should be given nominal consideration given the seriousness of the offences. In my view the sentence imposed must adequately account for s. 718.2(e) and Gladue.

82In R. v. Ipeelee, 2012 SCC 13, at para. 84, the Supreme Court of Canada stated that it is an error to fail to apply Gladue principles simply because an offence is serious or violent in nature. In Friesen, despite the call to arms against child sexual offences, the Supreme Court specifically directed sentencing judges to apply Gladue principles even in extremely grave cases of sexual violence against children (see para. 92). Friesen recognized that while deterrence and denunciation have priority, the sentencing judge retains discretion to accord such weight as is required to other factors including rehabilitation and Gladue factors (see para. 104).

83Mr. King’s circumstances as an Indigenous offender must be carefully considered to the extent that they attenuate his culpability or inform appropriate sentencing objectives. While the Gladue factors may not be as compelling in this case as others this court sees, this does not mean they do not warrant consideration and have not likely had some impact on Mr. King’s presence before the court. They should have some impact on his sentence. Mr. King’s family has been impacted by their residential school history. Mr. King’s mother and father have been impacted by their experiences growing up in the KZA community and specifically his mother’s traumatic experiences at the school. The fact that Mr. King did not grow up in the KZA community in some respects makes the s. 718.2(e) and Gladue factors more compelling. The underfunding of education and other services on reserve, combined with other experiences caused Mr. King’s parents to make the decision to separate their children from their community. The Gladue writer speaks to the fact that the accused lacks connection to his community, to its history, culture and traditions. The Gladue writer speaks to the importance to Indigenous offenders of establishing these connections and the complex impact of disconnection from culture on behaviour. This has a mitigating effect on culpability.

84While there are no mitigating factors with respect to the circumstances of the offences, there are some significant mitigating factors with respect to Mr. King’s circumstances, other than already discussed. Mr. King is a youthful first offender. He has strong family support, and he is closely connected to his family. He has sought treatment, actively and meaningfully participated, and has developed a growing appreciation for the impact of his actions. He has prospects for rehabilitation. He entered guilty pleas to the most significant charges against him, despite the presence of a Charter argument that had sufficient merit that the Crown has sought to reduce the sentence it would otherwise seek. Not only are his guilty pleas indicative of remorse, he expressed remorse in a statement that I accept as heartfelt and sincere.

85As indicated, there is the potential for rehabilitation. Mr. King is a young man who has already demonstrated positive steps towards rehabilitation. He is to be commended for this and is encouraged to continue on this path to avoid further charges upon release. Having said this, while I accept his counsellor and lawyer’s statement that he is not an “evil” or “bad” person, the facts underlying his charges suggest he has engaged in bad conduct that gives the court cause for concern. In my view Mr. King’s counsellor’s description of his addiction to pornography as simply a “bad habit” minimizes his behaviour. Mr. King has acknowledged being aroused by and addicted to images of child pornography of young girls. He has acknowledged that he knew it was not right, but he felt like he could not help himself and he wanted to see more and more. This suggests a high level of moral blameworthiness. Mr. King’s actions are indicative of a compulsion more than a bad habit. As the PSR report states, despite Mr. King’s reported progress, this does not negate the seriousness of the exploitation of numerous infants, children and minors. The PSR report further recommends a specialized assessment as being necessary to determine whether Mr. King presents with pedophilic tendencies. My optimism with respect to Mr. King’s prospects for rehabilitation are tempered by these concerns.

86I agree with the Crown’s assessment of the aggravating factors. I would add to this the volume of images accessed in a relatively short period of time, along with the nature of the images and what they depict. There is the depiction of children as young as infants, being sexually penetrated (sometimes anally) by the penis of grown men. There is infant bondage. These children have all forms of sexual violence being perpetrated upon them by adults. With respect to the make child pornography, these images were captured and then often redistributed without the knowledge or consent of the victims.

87With respect to extra credit for pre-sentence custody, in R. v. Duncan, 2016 ONCA 754, the Court of Appeal recognized the discretion of judges to give additional credit for pre-sentence custody time served when that time was served in particularly harsh circumstances. At para. 6 of Duncan, the Court of Appeal directed the court to consider both the conditions of the presentence incarceration and the impact of those conditions on the accused. The Crown argues that no additional pre-sentence custody credit is warranted because there is no specific evidence before the court as to those conditions or the impact on Mr. King. I disagree.

88There is evidence before the court in the affidavit sworn by Mr. King in support of his bail review application, and indeed Justice Newton recognized some of these conditions in his bail decision [see R. v. King, 2021 ONSC 157]:

a. Mr. King had been in a number of detention facilities since being detained. In a short period of time, he was in six different facilities, albeit some of them for only a day or so during transport;

b. There have been incidents in all of these facilities that have caused him concern for his safety, including threats and assaults by other inmates because of the nature of his charges;

c. Having been incarcerated during the period of the COVID-19 pandemic he has been subjected to lockdowns. In some facilities this did not affect his access to programming, while in others it did. There is no more specific evidence as to the impact of the lockdowns. Mr. King did attest that he was able to have showers. His access to family appears to have been limited more by the location of his incarceration than lockdowns. He estimates that in one facility alone, during a 3-month period they spent 14 days in lockdown as a result of staff shortages primarily.

d. While in the Thunder Bay jail, he spent a week sleeping on the floor because of overcrowding.

e. While at the Monteith Correctional Facility there was an issue with contaminated water that caused issues with drinking water. There were also power outages causing air exchange problems and overheating.

f. For the most part, facilities were clean, and COVID-19 was not a concern on the ranges that Mr. King was placed in.

89There is also evidence as to the impact of incarceration on Mr. King. He specifically talks about his fear of other inmates finding out about the nature of his charges, his ongoing concern for his safety, his periodic lack of access to cultural programming or workers, and discomfort with respect to overcrowding for a week. The Crown is correct in that there is no specific evidence as to the impact of lockdowns. Other cases such as R. v. Bahamonde, at para. 80, have recognized that lockdowns generally impact the ability to get fresh air, exercise, or access telephones. There is generic evidence in the PSR about the deterioration of Mr. King’s mental health during his incarceration and increased suicidal ideation, necessitating medication. While the Crown is correct in that there is no evidence attributing this directly to the particularly harsh conditions suffered by Mr. King, the court accepts that the conditions of Mr. King’s incarceration were particularly harsh and did impact his mental health. The greatest impact would appear to be the multiple moves and removal from family and community, along with living with the fear of harm due to the nature of charges. There is insufficient evidence of any negative impact from lockdowns for me to attribute any additional credit.

90With respect to R. v. Downes, the Ontario Court of Appeal has indicated that time spent under stringent bail conditions, especially house arrest, must be taken into account as a relevant mitigating circumstance. This is a recognition that bail conditions represent an infringement on liberty and a form of punishment, albeit of a different character than incarceration.

91Like any mitigating circumstance, Downes states that the impact on sentence is entirely within the discretion of the sentencing judge. The circumstances may dictate that little or no credit be given for pre-trial bail conditions. The amount of credit will depend on factors including the length of time spent on bail under strict conditions, the impact on the offender’s liberty, and the ability of the offender to carry on normal relationships, employment, and activity. The offender should provide evidence as to the impact of the conditions. If there is a dispute as to impact, the onus is on the offender to establish those facts on a balance of probabilities: Downes, para. 37.

92Mr. King was released from custody on January 7, 2021, following a bail review hearing. As of the date of this sentencing, he has spent more than 2 years subject to house arrest conditions that require him to live with his parents (his sureties), and only permit him to leave his residence in the presence of a surety. He is subject to other conditions, including restrictions on his ability to access or use social media, computer or phone devices, or the internet.

93I agree with the Crown that there is little evidence available to me as to the impact of these conditions on Mr. King. Mr. King has lived under stringent conditions for a lengthy period of time. The evidence indicates that Mr. King was able to continue to work, given that he works with his father. He did not live with his parents at the time his offences were committed, and therefore this requirement has impacted his liberty in the sense of his ability to live at his own residence. He has been able to access counselling services. The evidence suggests that Mr. King did not have an active social life and therefore this impact is likely minimal.

94As was the case in Downes, given the limited evidence I am unable to give anything more than limited weight to the time that Mr. King has had to endure strict bail conditions. This is particularly so given the already lenient sentence. Having said this, as was the case in Downes, particularly given the length of time that Mr. King’s liberty was impacted by very stringent conditions, it is not appropriate to give no extra credit.

95I find that taking into consideration all of aggravating and mitigating circumstances, including Mr. King’s plea of guilt in the face of a Charter argument a 6-year sentence, less credit for time served at 1.5 – 1 ratio, and enhanced Duncan credit will best strike the appropriate balance between denunciation, deterrence, and rehabilitation in this youthful Indigenous offender.

96I apportion the sentence as follows, and make the following findings:

a. Counts 9 & 10 - With respect to the two counts of luring, given the applicable range and given that the luring involved different individuals, the Crown’s position of 3 years adequately takes into consideration the principles of denunciation, deterrence, rehabilitation and restraint, s. 718(2)(e) and Gladue factors, as well as the aggravating and mitigating factors otherwise discussed in this decision. I note that this is 6 months more than the sentence imposed in M.B., but the circumstances with respect to number of occurrences and victims differ.

b. Count 5 - With respect to making child pornography, consistent with the cases cited by the Crown, the foregoing factors warrant a sentence of 2 years, consecutive to the luring. These were different offence and warrant consecutive, as opposed to concurrent sentences. This finding also distinguishes the sentence in this case from the result in M.B.

c. Count 3 - 1 year for possession of child pornography, consecutive to luring and make child pornography. Again, there is a significant volume of pornography possessed that is different from the luring and making child pornography offences, that warrants a consecutive as opposed to concurrent sentence.

d. Count 4 - 2 years for voyeurism, concurrent to count 5 (make child pornography)

e. Count 7 – Exposing – 2 years concurrent to luring

f. Count 2 – Make available child pornography – 1 year concurrent to possession.

97Against this 6-year sentence I apply credit equal to 617 days (approximately 20.5 months) attributed as follows:

a. 251 days of presentence custody, enhanced at a ratio of 1.5 to 1, for a total of 377 days’ credit for presentence custody.

b. 3 months (90 days) of additional Duncan credit to account for the harshness of the presentence custodial conditions endured by Mr. King. This is at the low end of the range suggested by the Defence.

c. 5 months (150 days) of additional Downes credit to account for lengthy, stringent, pre-sentencing bail conditions.

SENTENCE AND ANCILLARY ORDERS:

98Mr. King is sentenced to a custodial term of 6 years, which is reduced by enhanced credit of 617 days. The effective sentence shall be an additional approximately 1,573 days in custody in a Federal penitentiary (4.3 years). It will be of significant benefit to Mr. King to be placed in a facility that provides him access to culturally appropriate programming, that permits assessment and treatment for sex offenders, and affords him the opportunity to continue with the counselling that has been so beneficial to him to date.

99In addition, I make the following ancillary orders:

a. There shall be a s. 109 weapons prohibition for life, save and except when used in traditional hunting or fishing activities.

b. Luring is a primary designated offence and I order Mr. King to provide a DNA sample suitable for analysis.

c. Pursuant to ss. 490.012 and 490.013(2.1), Mr. King is ordered to comply with the Sex Offender Information Registration Act for life.

d. I further order forfeiture of the materials identified in the draft order provided.

e. The Crown sought a s. 161 order for life. I have determined that an order for 20 years is appropriate because of Mr. King’s young age and the potential for rehabilitation. I therefore make an order under s. 161 of the Criminal Code, for 20 years with the following terms:

i. Mr. King is not to attend 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, school ground, playground or community centre unless accompanied by another person aged 18 years or older.

ii. He is not to seek, obtain or continue any employment, whether or not the employment is remunerated, or to become or to be a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years.

iii. He is not to have direct or indirect contact, including communicating by any means, with a person who is under the age of 16 years, except for the purpose of completing a commercial transaction or unless that person or those persons are accompanied by a family member of an age equal to or greater than 18 years.

iv. He is not to access the Internet or to use any other digital network:

A. by means of a virtual private network (VPN) or encryption software,

B. through the use of anonymizing software,

C. to access any peer-to-peer networks,

D. to access or participate in chatrooms, bulletin boards or other social media that discuss or promote child exploitation, child pornography, sexualized images of children or other sexual exploitation material or where such material is being shared,

E. to access websites containing child pornography,

F. for the purpose of communicating directly or indirectly with persons under the age of 16 years.