Reasons for Sentence

COURT FILE NO.: CR-21-42 DATE: 20231020

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – KYLE HUGHES Defendant

Counsel: Cameron Peters for the Crown Joel Hechter for Mr. Hughes

HEARD: Sentencing Submissions heard August 2, 2023

c. boswell j.

[1] On March 9, 2023, I convicted Mr. Hughes of possession of child pornography and making child pornography available. My reasons for judgment are reported at 2023 ONSC 1589. Mr. Hughes was remanded to August 2, 2023 for sentencing submissions. Following submissions, he was remanded to today for judgment on sentencing.

[2] The sentencing was delayed a little longer than the court would ordinarily prefer. Defence counsel advised that there were a number of factors that the defence had to address before submissions proceeded. He signalled that he would be available to make submissions any time after the end of June 2023 and suggested a date in early July 2023 may be appropriate. I was not able to accommodate a July 2023 date and accordingly, August 2, 2023 was settled on.

[3] In submissions, Crown counsel proposed a sentence of three years in prison, together with a number of ancillary orders, including a DNA order, a weapons prohibition under s. 109 of the Criminal Code, a forfeiture order, an order that Mr. Hughes comply with the Sex Offender Information Registration Act for a period of 20 years, and a ten-year prohibition order under s. 161 of the Criminal Code.

[4] Defence counsel proposed a one-year conditional sentence, half of which would involve house arrest and half of which would involve a curfew. He proposed a one-year period of probation to follow the conditional sentence. Counselling for alcohol addiction and a referral to the sexual treatment program at the Centre for Addictions and Mental Health were suggested. Defence counsel opposed the s. 109 weapons prohibition sought by the Crown and took issue with some of the terms of the s. 161 order proposed by the Crown. Finally, the defence submitted that the victim fine surcharge should be waived.

[5] Counsel made very detailed submissions in support of their positions. I will flesh those submissions out in the course of these reasons.

[6] I begin, however, with a consideration of the circumstances of the offence and of the offender and the impact of child pornography offences like the ones involved here.

The Circumstances of the Offence

[7] Using a digital investigative tool known as Torrential Downpour, Detective Constable Erin Neller, of the Ontario Provincial Police, downloaded a number of files from a device operating on the BitTorrent network between July 19 and 20, 2019. Those files included child sexual abuse material.

[8] DC Neller’s investigation led to the execution of a warrant at Mr. Hughes’ home in early August 2019. A number of digital devices were seized and analyzed by OPP forensic analysts.

[9] In total, the police located 1,619 unique images of child pornography between a desktop computer and laptop, as well as another 91 unique images of child pornography on a smartphone. In addition, 22 unique videos of child pornography were located on the desktop computer and laptop.

[10] DC Neller determined that the majority of the images recovered from Mr. Hughes’ devices depicted prepubescent females engaged in explicit sexual activity with adults. The balance of the images were of prepubescent females whose sexual organs were the dominant characteristic of the image. The majority of the children depicted in the images recovered from the desktop computer and laptop were toddlers and other children up to about age 10. The majority of the children depicted on the images seized from the smartphone were estimated to be between the ages of 6 and 12.

[11] DC Neller further determined that roughly half of the videos recovered from Mr. Hughes’ devices depicted prepubescent females engaged in sexual activity with adult males or other female children. The balance depicted prepubescent females whose sexual organs were the dominant characteristic of the video images. The majority of the children depicted in the videos were estimated to be between 8 and 14 years of age.

[12] Mr. Hughes agrees that the number of images and videos recovered from his devices is accurate, as is DC Neller’s description of their content.

[13] I have reviewed a relatively modest sample of the images and videos seized from Mr. Hughes’ devices and confirm that they are consistent with the descriptions provided by DC Neller.

The Circumstances of the Offender

[14] Mr. Hughes is 37 years old. He is a first-time offender.

[15] He is college-educated. He began his college career in a graphic design program at Sheridan College but had to leave that program as it was beyond his financial means to complete. He subsequently attended Georgian College where he received training as a chef.

[16] Following college, he has worked at a number of restaurants in Simcoe County and Toronto.

[17] Mr. Hughes is an avid videogame player. He is also an alcoholic, though I am not entirely clear on when his struggles with alcohol began.

The Impact of the Offence

[18] There is no complainant immediately before the court. But of course, that does not mean that these were victimless offences.

[19] The creation of a market for child pornography, through online trading, spurs its production. And every time an image of child pornography is created, a child is abused and degraded. As Molloy J. observed in R. v. Kwok, at para. 49, “the collectors of this filth are a vital part of the evil menace it represents and bear responsibility for its malignant growth right along with its creators.”

[20] Each time an image of child pornography is shared, the child exploited by its creation is re-victimized. As the Supreme Court noted in R. v. Friesen, 2020 SCC 9, at para. 48,

…[O]nline distribution of films or images depicting sexual violence against a child repeats the original sexual violence since the child has to live with the knowledge that others may be accessing the films or images, which may resurface in the child’s life at any time.

[21] Child sexual exploitation and sexual violence against children have well-known long-term effects. They include difficulty forming loving, caring relationships in adulthood, an increased likelihood of engaging in sexually abusive conduct towards children themselves, and an increased likelihood of struggles with substance abuse, mental illness, eating disorders, depression and self-destructive behaviours. See Friesen, at para. 81.

[22] Mr. Hughes’ offences had many, many innocent young victims.

[23] The Crown filed a Community Impact Statement prepared on behalf of a group of sexual abuse survivors who are known as the “Phoenix 11”. They are victims whose child sexual abuse was recorded and, in most cases, distributed online. Their statement speaks to the emotional impact of the violation of their dignity and privacy and their ongoing struggles to live each day knowing that there is a permanent record of their abuse circulating on the Internet. They describe the images and videos of their abuse as “permanent markers of the most painful and traumatic experiences of their lives.”

The Principles and Purposes of Sentencing

[24] Section 718 of the Criminal Code provides that 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: the denunciation of unlawful conduct, deterrence - both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims and the community, and the promotion of a sense of responsibility in offenders and an acknowledgment of the harm done.

[25] The importance of these individual objectives, and how they interact, varies from case to case. In cases involving child pornography, the principal drivers of any sentence imposed are denunciation and deterrence – both specific and general. See s. 718.01 of the Criminal Code.

[26] Identifying the principal objectives engaged in any given case is, however, only a first step. The next step is to assess what sentence is necessary to meet those identified objectives. In making that assessment the court is guided by the fundamental principle of proportionality. Section 718.1 of the Criminal Code directs that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[27] Proportionality engages two concepts: censure and restraint. See R. v. Ipeelee, 2012 SCC 13, at para. 37. As LeBel J. observed, a sentence must promote justice for victims and enhance public confidence in the administration of justice. At the same time, it should not exceed what is appropriate in light of the moral blameworthiness of the offender. The restraint principle directs the court to impose the least intrusive sentence and the shortest duration necessary to achieve a just, fit and proportionate sentence. See R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.) at paras. 95-96.

[28] Inherent in the concept of proportionality is the principle of parity. Imposing sentences proportionate to the gravity of offences and the moral blameworthiness of offenders requires the court, on the one hand, to recognize where there are material differences between different offenders and different offences. On the other hand, any sentence imposed must be similar to those imposed on offenders who have committed similar offences with equivalent moral blameworthiness. See s. 718(2)(b) of the Criminal Code. Parity, in other words, is an expression of proportionality. See Friesen, at para. 32.

[29] Having said all of that, it is important to recognize that sentencing remains a highly individualized exercise. A sentencing court must focus on tailoring the sentence to the gravity of the offence, the moral blameworthiness of the offender and the harm caused by the offences. See R. v. Nur, 2015 SCC 15, at para. 43. In doing so, the sentencing court must pay careful attention to the unique circumstances of the offender and of the offence, with regard to any aggravating and mitigating circumstances present.

The Legal Parameters

[30] Pursuant to s. 163.1(4) of the Criminal Code, anyone convicted of possession of child pornography faces a maximum term of imprisonment of ten years and a minimum term of one year.

[31] Pursuant to s. 163.1(3) of the Criminal Code, a person convicted of making child pornography available faces a maximum term of imprisonment of fourteen years and a minimum term of one year.

[32] Counsel are agreed that this court should not apply the statutory minimums on the basis that they have been struck down as unconstitutional.

[33] In R. v. John, 2018 ONCA 702, the accused was convicted of possession of child pornography under s. 163.1(4) of the Criminal Code. At the time the offences were committed, in early 2014, s. 163.1(4) imposed a mandatory minimum sentence of six months.

[34] Mr. John challenged the constitutionality of the six-month mandatory minimum, arguing that it was a grossly disproportionate punishment and, as such, offended s. 12 of the Charter of Rights and Freedoms. The Court of Appeal agreed and ruled the provision unconstitutional. The Court observed, however, that the mandatory minimum sentence is entirely unnecessary given the emphasis of denunciation and deterrence in sentencing for offences involving child pornography.

[35] On July 17, 2015, the mandatory minimums for possession and for making child pornography available were increased to one year in jail as a result of the coming into force of the Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, s. 7(2).

[36] The Court of Appeal has not considered the constitutionality of the one-year mandatory minimum under ss. 163.1(4), but it stands to reason that if they found a six-month mandatory minimum to be grossly disproportionate, an increase of six months in that minimum is not going to bring it into constitutional compliance.

[37] Relying on R. v. John, a number of decisions of judges of this court have proceeded on the basis that the one-year mandatory minimum sentence provided for in s. 163.1(4) of the Criminal Code has effectively been struck down. See R. v. Mootoo, 2022 ONSC 384, R. v. Boodhoo, 2018 ONSC 7205, R. v. Walker, 2021 ONSC 837 and R. v. Rytel, 2019 ONSC 5541. The principles of horizontal stare decisis dictate that I follow the decisions of courts of concurrent jurisdiction save in limited circumstances. Those circumstances include (i) where the rationale of an earlier decision has been undermined by subsequent appellate authority; (ii) the earlier decision was reached per incuriam, in other words, through carelessness or inadvertence; or (iii) the earlier decision was not fully considered, such as where the exigencies of the case demanded an immediate decision without an opportunity to fully explore the relevant jurisprudence. See R. v. Sullivan, 2022 SCC 19, at para. 75.

[38] In my view, none of the exceptions identified in Sullivan apply. In other words, I will follow horizontal precedent and proceed on the basis that no mandatory minimum sentence applies to a conviction under s. 163.1(4).

[39] The decision in R. v. John did not address the mandatory minimum sentence for making child pornography available under s. 163.1(3). That said, each of the decisions in Mootoo, Boodhoo and Walker held that the mandatory minimum sentence provided for in relation to s. 163.1(3) was unconstitutional. Again, I will follow horizontal precedent, particularly in light of the agreement of counsel that I should do so.

Discussion

[40] Mr. Hughes’ argument is that, having regard to the restraint principle, a one-year conditional sentence is sufficient to meet the goals of deterrence and denunciation in all of the circumstances of this case.

[41] There are three reasons why I simply cannot accept the defence position.

[42] First, though the mandatory minimums may have been struck down as unconstitutional, the fact that Parliament sought to increase those mandatory minimums signals Parliament’s desire that offences of this nature be punished more harshly. See R. v. Lacasse, 2015 SCC 64, at para. 7.

[43] Second, as I mentioned already, the Court of Appeal observed, in R. v. John, that given the significance of denunciation and deterrence to sentences for child pornography offences, a mandatory minimum sentence of six months is completely unnecessary.

[44] Finally, and most compelling, the Supreme Court directed in Friesen, that sentences for cases involving the sexual abuse of children must increase.

[45] In the opening paragraph of Friesen, the Supreme Court signaled that the decision is “about how to impose sentences that fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children”.

[46] Possessing and sharing child pornography are profoundly wrong and harmful sexual offences against children. They fall squarely within the type of case addressed in Friesen. Consequently, they fall squarely within the type of case the Supreme Court demanded increased sentences for.

[47] The Friesen decision provides the following directions, amongst others:

(a) Sentences must recognize and reflect both the harm that sexual offences against children cause and the wrongfulness of sexual violence. Sentences must reflect the “life-altering consequences” that can and often do flow from sexual violence (Para. 74);

(b) Sentencing judges must take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle. The wrongfulness and harmfulness of the offender’s conduct impact both the gravity of the offence and the degree of responsibility of the offender. (Para. 75);

(c) The sentence imposed must reflect the normative character of the offender’s actions and the consequential harm to children and their families, caregivers and communities (Para. 76). The wrongfulness of the exploitation of children is always relevant to the normative character of the offender’s conduct and thus the gravity of the offence (Para. 78); and,

(d) The intentional sexual exploitation of children is highly morally blameworthy because children are so vulnerable. The use of a vulnerable child for the sexual gratification of an adult cannot be viewed as anything but a crime demonstrating the worst of intentions (Para. 90).

[48] I accept that there may be cases where the mitigating circumstances are so compelling that a conditional sentence is warranted. But this is not such a case. By way of some perspective, one may consider the Court of Appeal’s recent decision in R. v. Rule, 2023 ONCA 31. Mr. Rule pled guilty to three counts of possession of child pornography. He was 70 years old at the time he was sentenced. He was a retired schoolteacher. He suffered from significant health problems including advanced rectal cancer, requiring an ostomy bag.

[49] Taking into account Mr. Rule’s age and health problems, the trial judge sentenced him to 22 months in prison. Mr. Rule appealed, arguing that the trial judge should have imposed a conditional sentence in all the circumstances.

[50] The Court of Appeal upheld the trial judge’s decision, holding that, notwithstanding Mr. Rule’s serious health conditions, a conditional sentence would have been inconsistent with the fundamental purposes and principles of sentencing.

[51] To be fair, Mr. Rule’s collection of child pornography was about ten times the size of Mr. Hughes’ collection. Nevertheless, the Court of Appeal has been very consistent in underscoring the seriousness of child pornography offences and the paramountcy of denunciation and deterrence in the imposition of sentences for such offences. See, for instance, R. v. McCaw, 2023 ONCA 8, at paras. 28-29 and R. v. M.(M.), 2022 ONCA 441 at paras. 15-16.

[52] In M.(M.), the Crown appealed a conditional sentence imposed for possession of and making child pornography. The Court of Appeal directly addressed the general inappropriateness of conditional sentences for child pornography offences at paras. 15-16 where they said the following:

The Supreme Court's instructions from Friesen could not be clearer: sentences for sexual offences against children must increase. There are no qualifications here. Sentences have been too low for too long. Denunciation and deterrence are of primary importance: R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, at para. 3. Those who commit sexual offences against children must understand that carceral sentences will ordinarily follow.

Conditional sentences for sexual offences against children will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate - for example, where it gives rise to a medical hardship that could not adequately be addressed within the correctional facility…

[53] In my view, there are no exceptional circumstances present here that render incarceration inappropriate. Indeed, in my view, a conditional sentence in the circumstances here would be manifestly unfit.

[54] The central question is how long a period of incarceration is necessary to achieve the objectives of denunciation and deterrence. To determine that question, it is necessary to carefully consider the aggravating and mitigating circumstances of this case and to situate them, to the extent possible, within the context of sentences imposed in other, similar cases.

[55] There are a number of both aggravating and mitigating circumstances.

[56] Aggravating circumstances include:

(a) The offences involve the abuse and exploitation of children;

(b) The size of the collection. Mr. Hughes possessed in excess of 1,700 images of child pornography and some 22 videos. I appreciate that his collection is modest in comparison to some of the collections in the reported cases. But that is not to say that it is a modest collection. It reflects hundreds of abused children;

(c) The content of the collection is highly disturbing. It focuses on pre-pubescent females. In the small sample provided to me to review, the images and videos ranged from depicting erotic posing of naked little girls, sexual activity between children, and penetrative activity between adult males and young girls. In some instances, the victims included infants, who adult males were attempting to penetrate;

(d) The concerted effort required to assemble the collection. Obviously, Mr. Hughes did not simply stumble upon and view child pornography inadvertently. It would have taken considerable time, effort, and a dedication to the task to amass a collection of the size he had. I do not know what means he used to obtain all of the child pornography in his collection. I do know that he came to the attention of the police because of his activities on the BitTorrent network. Given the way that network is structured, he had to actively seek out the torrents containing digital instructions for locating and downloading the images he was looking for; and,

(e) His use of the program uTorrent to download child pornography on the BitTorrent network made him simultaneously a downloader and uploader of child sexual abuse materials.

[57] Mitigating circumstances include the following:

(a) Mr. Hughes has largely accepted responsibility for his offending and has shown genuine remorse for his actions. He did not plead guilty. But he did not contest the Crown’s case once his Charter applications had been dismissed. These circumstances are not quite the same as a guilty plea and not entitled to the same consideration as mitigation. That said, I am satisfied that Mr. Hughes has at least some insight into his offending and the harm it caused;

(b) Mr. Hughes has no criminal record. Apart from these offences, he appears to be a person of good character. He has a solid work history and has been a productive member of the community; and,

(c) He has a supportive family. His parents, with whom he lives, are committed to assisting him.

[58] It is difficult, on the record before me, to reach any conclusion about Mr. Hughes’ risk to re-offend. His lawyer submitted that an appropriate term to include in a conditional sentence order would have been counselling for alcohol addiction and sexual offending. Mr. Hughes was charged over four years ago. I appreciate that the pandemic made it more difficult for a time to access counselling programs. But he appears not to have made any serious effort to obtain any professional help to date. The size and content of his collection suggests that he has a strong predilection for child pornography. Despite his indication to the court that he now understands the harm caused by the offence, I fear there is some genuine risk of re-offending in the absence of professional assistance.

[59] At any rate, I now return to the core sentencing principle of proportionality. The Supreme Court observed, at para. 33 of Friesen, that “judges calibrate the demands of proportionality by reference to the sentences imposed in other cases. Sentencing precedents reflect the range of factual situations in the world and the plurality of judicial perspectives. Precedents embody the collective experience and wisdom of the judiciary. They are the practical expression of both parity and proportionality.”

[60] It is necessary, therefore, to consider sentences imposed in similarly circumstances.

[61] Crown counsel provided the court with a number of cases to consider. I will focus on post-Friesen cases, given that Friesen was intended to, and had the effect of, moving the yardsticks in terms of appropriate sentences. The cases provided by the Crown include:

(a) R. v. Brown, 2022 ONCA 516. Mr. Brown was a youthful first offender. He had a collection of 500 images and videos of child pornography, described as “severe”, meaning they depicted sexual violence against children. They appear to have been of a similar nature to Mr. Hughes’ collection. The Court of Appeal described 500 files as a “very large quantity, warranting a significant sentence.” A three-year concurrent sentence imposed by the trial judge for possessing and making available child pornography was upheld;

(b) R. v. Murty, 2021 ONSC 2801. Mr. Murty was a 49-year-old, first-time offender who had a collection of 1,349 images and 819 videos. The content of the materials included sexually explicit acts with children who ranged in age from toddlers to pre-pubescents, as well as bestiality. They were at the high end of severity. Mr. Murty was 49 years old. He suffered from mental health issues including depression and anxiety. He was described as a moderate risk to re-offend. A three-year concurrent sentence was imposed on convictions for possessing and making available child pornography; and,

(c) R. v. Walker, 2021 ONSC 837. Mr. Walker was a 46-year-old, first-time offender who was convicted of possessing and making available child pornography. He was found to possess 43 videos and 17 images. He had a history of pro-social behaviour and steady employment. A concurrent sentence of two years for possession and three years for making child pornography available was imposed and confirmed by the Court of Appeal. See 2021 ONCA 863;

[62] Other reasonably similar cases include:

(d) R. v Subia, 2022 ONSC 1693. Mr. Subia was a 35-year-old offender, with one prior conviction for possessing child pornography. He pled guilty to possessing and accessing child pornography. His collection included 3,396 images involving adults sexual abusing children, BDSM and bestiality. He had engaged in counselling and a number of sessions of psychotherapy. He was, nevertheless, a moderate risk to re-offend. A sentence of three years in prison was imposed;

(e) R. v. Bekmambetov, 2021 ONSC 6219. Mr. Bekmambetov was a 54-year-old, first-time offender. He was found to have a collection of some 9,500 unique images and 283 unique videos of child pornography. He was found by a psychiatrist to be a low risk to re-offend. He had a history of pro-social behaviour. A sentence of two years was imposed;

(f) R. v. Tremblay, [2023] O.J. No. 436. Mr. Tremblay was a 28-year-old, first-time offender who pled guilty to one count of possessing child pornography. He was found to be in possession of 3,000 unique images and 59 unique videos. He had a prior conviction for sexually assaulting a three-year-old girl. He was assessed as being a low-medium risk of re-offending. He was sentenced to 30 months in prison; and,

(g) R. v. Reid, 2022 ONSC 2987. Mr. Reid was a 66-year-old, first-time offender. He was found to be in possession of some 4,000 unique images and 2,500 unique videos of child pornography. He had a history of pro-social behaviour and a supportive family. He had heart disease. He was convicted of possessing and making available child pornography, though he was found to have taken active steps to prevent sharing. He was sentenced to 26 months in prison.

[63] No two cases have identical facts of course. It would appear, however, based on my review of reasonably similar prior cases, that the range of sentence for similar offending is two to three years, with most cases falling closer to the three-year mark.

[64] I note that the jurisprudence reasonably tends to treat making child pornography available to others as a more serious offence than possession. Obviously, actively disseminating child pornography is a particularly grave offence, given the damage caused by the proliferation of child sexual abuse material.

[65] In Mr. Hughes’ case, I find that his making child pornography available to others was incidental to his downloading material for his own use. He was not, for instance, active in chat rooms trading child pornography. He was not live-streaming child pornography, nor intentionally posting material online. He was not found to have files available to others to download from the shared file folder of his uTorrent client program.

[66] The conviction for making child pornography available to others in this case reflects the fact that the BitTorrent network is structured on a swarming model. Users seeking files may download individual parts from many different peers on the network. As soon as a user has downloaded a piece of a file to his shared folder, that piece becomes available to others.

[67] The evidence in this case supports the conclusion that Mr. Hughes moved his downloaded files to a non-shared location on his devices once downloaded. He was not, in my view, actively attempting to share child pornography with others. To that extent his moral blameworthiness in terms of making available child pornography is somewhat below offenders who actively trade it.

[68] Having considered the size of Mr. Hughes’ collection, his lack of a prior record, his life circumstances including the support of his family, and his genuine expression of remorse, I find that an appropriate global sentence in this case is 30 months, concurrent on each count.

[69] Mr. Hughes’ counsel asked for further mitigation of that sentence on account of what he described as stringent bail conditions.

[70] In R. v. Downes, [2006] O.J. No. 555, the Court of Appeal held that time spent under stringent bail conditions, such as house arrest, may be taken into account as a relevant mitigating circumstance on sentence. The amount of credit to be given is in the discretion of the trial judge and there is no formula that must be followed. It will vary depending on a number of factors including the length of time spent on bail, the stringency of the conditions, the impact on the offender’s liberty and the ability of the offender to carry on normal relationships, employment and activity.

[71] Mr. Hughes has been subject to a recognizance of bail since September 6, 2019 – a period of a little more than four years. The conditions are not, on their face, what most people would consider stringent. They include:

(a) A requirement to reside with his surety, or at an address approved by his surety. Mr. Hughes was not subject to house arrest;

(b) Not to have any contact with anyone under the age of 16 unless in the presence of a surety or another adult with knowledge of the charged offences;

(c) Not to attend a public park or other community centre where children under the age of 16 are likely to be; and,

(d) Not to possess or use any computers or other device with access to the Internet save under the direct supervision of a surety.

[72] I would have dismissed the request for Downes mitigation out of hand but for the combined impact of the bail conditions and the pandemic. Mr. Hughes is somewhat of a loner. He spends a great deal of time alone in his room. His principal recreational activity is video gaming. He has been heavily restricted in his ability to engage in that, or any other activity, on the Internet.

[73] The pandemic was an isolating time for many, if not most, people. It was particularly hard on Mr. Hughes, given the restrictions imposed on him relating to accessing the Internet – by and large his only connection to the outside world.

[74] Mr. Hughes’ counsel suggested that the mitigation resulting from the application of the principles in Downes ought to be in the range of a one-year reduction in Mr. Hughes’ sentence. I am persuaded that there should be some modest reduction, but certainly nowhere near the range suggested by the defence.

[75] I do not consider the relatively limited restriction on Mr. Hughes’ liberty to support substantial mitigation of his sentence. Moreover, the principles in Downes cannot be applied in such a way as to reduce a sentence to a point below what is fit and just in the circumstances. A one-year reduction would, in my view, reduce Mr. Hughes’ sentence to a point where it is demonstrably unfit.

[76] In my view, an application of the Downes principles results in a reduction of one month in Mr. Hughes’s sentence, such that the net sentence to be served is 29 months.

[77] The Crown sought a number of ancillary orders. The first was a forfeiture order, which was on consent and which I made at the hearing of counsel’s sentencing submissions.

[78] On an unopposed basis, I impose the following:

(a) A DNA order on both counts; and,

(b) An order that Mr. Hughes comply with the Sex Offender Information Registration Act for a period of 20 years.

[79] The Crown sought a weapons prohibition under s. 109(1) of the Criminal Code. Such an order is mandatory in the case of an indictable offence in the commission of which violence against a person was used, threatened or attempted and where the offender may be sentenced to a period of imprisonment of ten or more years. Crown counsel submits that the facts of this case tick all of those boxes, such that a s. 109 order is mandatory.

[80] Defence counsel described the Crown’s request for a s. 109 order as “over the top”. While I would not classify it that way, I do not believe a s. 109 order is mandatory in the circumstances of this case.

[81] There is no doubt that the images and videos seized from Mr. Hughes’ devices reflect sexual violence against children. The actus reus of the offences Mr. Hughes has been convicted of do not, in themselves, however, involve violence. In the circumstances, I will not impose the s. 109 order.

[82] The Crown also seeks a prohibition order under s. 161(1) of the Criminal Code for a period of ten years. Defence counsel did not strongly oppose most of the conditions sought by the Crown, though he pointed out that Mr. Hughes has already been subject to certain prohibitions for four years as a result of his bail conditions.

[83] In my view, given the nature of the offences and the fact that Mr. Hughes has made no serious effort to address the flaws in his character that led to the offending, I believe a ten-year probation order under s. 161(1) is appropriate.

[84] In the result, for a period of ten years, Mr. Hughes will be prohibited from:

(a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;

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

(c) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offender does so under the supervision an adult with knowledge of these offences; and,

(d) using the Internet or other digital network, except in accordance with the conditions attached as Appendix “A” to these reasons.

[85] Mr. Hughes requested that I waive the victim surcharge, payable under s. 737(2) of the Criminal Code. Mr. Hughes has not been able to work since the index charges were laid. His financial circumstances are precarious and I am prepared to make some reduction in the surcharge in his case. That said, the victim surcharge is to be applied to victim services. Such services are particularly important to the survivors of childhood sexual abuse, who suffer long term consequences. It is important that those who take pleasure from the suffering of others contribute to services that support them. In the result, I order Mr. Hughes to pay a victim surcharge of $100 per offence, for a total of $200, within 12 months of his release from custody.

C. Boswell J.

Released: October 20, 2023

Appendix "A": Conditions for Accessing the Internet

Mr. Hughes may access the Internet provided:

1. He does not access any illegal material or websites or computer applications that may provide access to illegal material, including child pornography and digital files showing nudity of persons who are, or appear to be, under the age of 18 years.

2. The use of the Internet is with respect to a computer or other device capable of accessing the Internet at his place of work, if his employment so requires it, on digital equipment provided by the employer during his working hours for purposes of his employer’s business; provided that in relation to his use of such device, with 2 days of him first commencing use of the computer or device, he provides written notification to the Ontario Provincial Police Child Sexual Exploitation Unit of this use.

3. He does not access or participate in any manner or by any means in peer-to-peer network activity except if necessary for the purposes of work on a computer at his place of employment, as required for employment, and provided that in relation to such access or participation, he provides written notification to the Ontario Provincial Police Child Sexual Exploitation Unit within two days of the commencement of such use.

4. With respect to any other computer or device capable of accessing the Internet or other digital network, including computers, tablets, cell phones and any and all such other devices:

   (a) He has notified the Ontario Provincial Police Child Sexual Exploitation Unit at least two weeks prior to his acquisition of or use of any such device and of any IP address that he knows he is using or may be using in connection with such device(s) and any other connectivity or other identifiers of the device;

   (b) The computer or device has the capacity to retain and display the history of Internet use and he does not delete such history;

   (c) He makes the device available on request for inspection by the Ontario Provincial Police Child Sexual Exploitation Unit and he provides any and all passwords and encryption codes to facilitate the inspection of the device and its contents and he allows the Ontario Provincial Police Child Sexual Exploitation Unit to install risk management monitoring software if they so choose;

   (d) He does not interfere with or by-pass the normal running of such computer monitoring software;

   (e) He does not knowingly use any Cloud or similar remote storage media or device capable of storing digital files (other than that which is intrinsic to the operation of the device) unless, at least two weeks prior to the creation of an account for such storage, he provides written notice of his intention to create or use such an account to the Ontario Provincial Police Child Sexual Exploitation Unit and provides access to such storage on request for inspection;

   (f) He does not store any files on any device capable of storing digital files (moving or still) unless, at least two weeks prior to obtaining such device, he notifies the Ontario Provincial Police Child Sexual Exploitation Unit of his intention to do so and provides access to such device on request for the purpose of inspection; and,

   (g) He does not install any encryption or wiping software on any computer or other device other than that which is intrinsic to the operation of the device.