Restriction on Publication AND ORDER SEALING EXHIBITS

An order has been made pursuant to s. 486.4(1) of the Criminal Code directing that any information that could identify the complainant shall not be published in any document or transmitted in any way. An order has also been made pursuant to ss. 278.95(1)(a) and (b) that the contents of the application that is the subject of this ruling and any evidence taken, information given or representations made at the hearing shall not be published in any document or transmitted in any way, except that this ruling may be published pursuant to s. 278.95(1)(d). This ruling complies with those orders and may be published.

A further order is made sealing the exhibits submitted by Crown counsel and filed at this hearing.

HIMEL J.

REASONS FOR SENTENCE

1Brian Drury entered a plea of guilty to the following offences: one count of child luring contrary to s. 172.1(2)(a) of the Criminal Code and two counts of possession of child pornography contrary to s. 163.1(4)(a) of the Criminal Code. He had elected to be tried by a judge sitting without a jury. Mr. Drury confirmed that he was entering this plea voluntarily, that he understood that the plea was an admission of the essential elements of the offence, that he was aware that he was giving up his right to have a trial, that he understood the nature and consequences of the plea and that he was aware that this court was not bound by any agreement made between counsel regarding sentencing. Following the plea of guilty, I ordered that a pre-sentence report be prepared and it has now been received. Defence counsel requested additional time to obtain a Risk Assessment report and the matter was adjourned to allow that to take place. Counsel have made their submissions on sentence. The following are my reasons for sentence.

FACTUAL BACKGROUND

2Counsel filed an Agreed Statement of Facts in this case. The facts relating to counts 1 and 2 of child luring are outlined as follows. In August 2018, Brian Drury and the complainant M.M., engaged in online sexual communications. M.M. lives in Fredericton, New Brunswick while Mr. Drury lives in Toronto. M.M. has been diagnosed with Attention Deficit Hyperactivity Disorder and anxiety disorder. As a result, she has had challenges in making friendships and reading social cues and has had learning difficulties in the classroom. M.M. and Mr. Drury first met on an online social media application known as “Yellow” (now called Yubvo) which is an application for making new friendships as opposed to dating. Mr. Drury posted his age on his profile on Yellow as being either 19 or 20, while M.M. posted her actual age of 16.

3Once the parties began chatting on the application, Mr. Drury advised that he was actually 25, although he was in fact 33 years old. Mr. Drury was aware of M.M.’s age of 16 throughout the entire course of their relationship.

4The parties communicated over a one- or two-week period, using text messages, Snapchat and Instagram to message each other and share photos and video clips. They would also live chat with video feed over Facetime.

5The conversations began with discussion of shared interests like classic rock music such as the Beatles and other music of the era. However, within a few days, the conversations became of a sexual nature. Nude images and masturbatory videos of Mr. Drury and the complainant were sent back and forth to each other. Mr. Drury also requested additional sexual videos from the complainant. Mr. Drury further expressed interest in seeing M.M. in person if she ever visited Toronto.

6In mid-August 2018, the complainant’s mother found the nude images and videos on her phone and called the Fredericton Police. The police began an investigation which included taking a statement from M.M. and reviewing her I-phone and iPad contents. They reviewed text messages and determined that the texts revealed the sexual nature of their discussions. The parties discussed nude and sexual content being sent via Snapchat instead of other means. Mr. Drury expressed dissatisfaction because he wanted to be able to keep pictures and videos of M.M. She indicated that she was paranoid and would let him keep the selfies, “just not the nudes.”

7Mr. Drury was aware that M.M. was 16 years old. He made reference to her as his “little girl” and that he is her “Daddy” in relation to sexual activity that he wanted to have with her. For example, texting: “I’m so excited for my little girl to be naughty for Daddy and surprise him.” He commented to her: “the social taboo of this whole age thing really does it for me.”

8Mr. Drury asked M.M. to send him nude pictures, and make videos of herself masturbating. Similarly, M.M. asked Mr. Drury to take nude photos and send her masturbatory videos. They shared nude images and masturbatory videos through the text message application.

9Also located on M.M.’s phone and iPad were a number of images that were shared which included images of Mr. Drury dressed and with his penis exposed. There are videos of him masturbating. Similarly, there are images of M.M. with her breasts exposed and of her masturbating.

10As it was believed that Mr. Drury resided in Toronto, Fredericton Police sent their investigation to Toronto to be continued. Subsequent to Toronto Police identifying Brian Drury as the person that communicated with M.M., on August 22, 2019, Toronto Police executed a search warrant on his address and seized various electronic devices. On Mr. Drury’s personal computer was a folder labelled “girlz” in which there were multiple folders containing images of young women labelled with their name. A subfolder named “M.M.” contained 62 images and videos sent by M.M. to Mr. Drury. Images include M.M. with her breasts exposed as well as videos of her masturbating. Many of these are the same images of M.M. as were found on her phone and appear to have been shared between them. Images of M.M. where she was nude meet the definition of child pornography.

11With reference to count 4, the count of possess child pornography, the facts are set out below. On August 22, 2019, when the Criminal Code search warrant was executed on Mr. Drury’s residence, he was found at the scene and was arrested. A preview of the electronic devices at the scene revealed that he was in possession of child pornography. Mr. Drury contacted Duty counsel and provided a statement to police admitting to possession of child pornography as well as communicating with M.M. on-line. When police analyzed the electronic devices, they found pornographic material on his personal computer which included 7,825 images and 334 videos involving females. Over 85% involved female prepubescent children clearly under the age of 12 years (range of 6 to 11 years old) involved in sexual intercourse, fellatio with an adult male or the primary focus of the image or video is vaginal and/or the anal region of a child. These children did not have any sexual maturation, no breast development and no pubic hair. These images meet the Criminal Code definition of child pornography.

12On Mr. Drury’s personal computer was a folder named “girlz.” There are 26 subfolders within this folder titled by women’s names, each sub folder represents a specific individual that Mr. Drury was chatting and sharing images with. Within these subfolders were images and videos of various young females. Some of these meet the definition of child pornography. Police were able to identify some of the young women.

13One of the folders involved A.G. whom Mr. Drury met on KIK messenger application some time in 2015. She resides in the United States and they communicated over KIK, Facebook Messenger and Instagram. A.G. told Mr. Drury she was 15 years old which was her actual age and he told her he was 25 years old but later admitted he was 30 years old. They discussed common interests like music and movies and both had depression. A.G. thought that she would marry him. Mr. Drury would flirt with her and call her “princess.” She would flirt back and call him “Daddy.” When she was 15 years old, she sent him a video of herself masturbating using a webcam. She did not recall if he asked for this or if she offered but she had never done this before.

14A.G. sent Mr. Drury nude images of herself but did not recall if he asked for them. She did this to get his attention. They talked about meeting in person but never did nor did they make plans to do so. At one point, she confronted him about their relationship being inappropriate due to their age difference and she suggested he was only “into her because she was a teenager.” He denied this suggestion and they continued to communicate on and off until she was 18 years old. The nude images and video were recovered by police on August 22, 2019 from his personal computer in a folder with her name as the title. These images meet the definition of child pornography in the Criminal Code.

15Another folder involved I.G. who lives in Nebraska, U.S.A. She met Mr. Drury on the internet messaging application KIK in 2015 when she was in the freshman year of high school. She told him she was 14 or 15 years old and he said he was 19 years old. He was actually 30 years old at the time. After approximately two months of developing a friendship, the two started what I.G. believed was an online relationship. Mr. Drury told her he was in love with her and she had significant feelings for him. He sent her a photograph of his penis and she told him she did not want photographs like that. He asked for nude and clothed photos from her regularly and would get mad if she didn’t send them and would tell her, “she didn’t love him enough.” She did send a few nude photos of herself but refused to send more.

16At times, they would have sexual conversations during which he liked calling her “baby girl” and he wanted to be called “Daddy.” She was not comfortable calling him that. By the end of I.G.’s sophomore year of high school, she ended the relationship because she was very upset with him asking her for nude photos and felt he was being too sexual for her. They have not spoken since some time in 2016. I.G.’s nude images were recovered by police from Mr. Drury’s personal computer in a folder with her name as the title. These images meet the definition of child pornography in the Criminal Code.

17Another folder concerned H.S. whom Mr. Drury met on the Tinder dating app in 2015. She was living in Ontario at the time. Tinder allowed minors to use the app in a subsection of the app for people between 14 and 18 years of age. H.S. told Mr. Drury that she had just turned 16 years old; his profile stated that he was either 17 or 18 years old. Eventually he told her that he was 30 years old. She asked why he was on the section of Tinder that was for minors and he stated that he wanted to see if girls like that thought he was young or attractive.

18Mr. Drury and H.S. began texting each other regularly. They also began messaging and talking on the phone. The conversations initially began with their common interests but then became very sexually focused. Mr. Drury would at times turn the conversation to sexual topics like him losing his virginity. Sometime in December of 2015, H.S. sent nude photos of herself to Mr. Drury. She could not recall whose idea it was. After a five-day period of messaging, she felt that he was becoming too possessive and cut off the conversations with him. The nude images were recovered by police from Mr. Drury’s personal computer in a folder with her name as the title. These images meet the definition of child pornography in the Criminal Code.

19On the basis of all these facts and the admissions made by the defence, I found Mr. Drury guilty of the charges of child luring and possession of child pornography.

EVIDENCE AT THE SENTENCING HEARING

20Crown counsel filed the Agreed Statement of Facts as an exhibit and it outlines the factual background. The pre-sentence report was prepared on February 15, 2023 and is also filed as an exhibit. The details of that report will be referred to below. Mr. Tice submitted an affidavit from Monique St. Germain, General Counsel for the Canadian Centre for Child Protection, a registered charity located in Winnipeg, Manitoba. The organization is aimed at reducing all forms of child victimization. One of her roles is to assist with the submission of victim impact statements from a group of survivors of child luring. She described that there was a gathering of female survivors from Canada and the United States which was held in Phoenix, Arizona in early 2018 and they have formed a group called Phoenix 11.

21The Phoenix group has developed a written community impact statement which is filed in court proceedings. The “Community Impact Statement of the Phoenix 11” was filed as an exhibit at this proceeding. It outlines the emotional impact of child sexual abuse imagery and notes that there are often physical impacts as well as economic impacts from such abuse. The statements made by these victims of child sexual abuse demonstrate pain and suffering that child pornography inflicts upon children.

22Crown counsel also filed a Victim Impact statement from M.M. who described the effects of these events on her. She felt shame and fear. However, she completed high school, is a university student and is engaged to be married. The other named complainants declined to file Victim Impact statements.

23The defence filed a “Risk Assessment” report prepared by Dr. Hy Bloom who is a forensic psychiatrist. He conducted a very extensive assessment of Mr. Drury which involved a risk assessment for same or similar behaviors and provided recommendations to address identified risk factors. He had met with Mr. Drury on three occasions, reviewed medical reports from his family physician and conducted phallometric testing. He outlined Mr. Drury’s family background, his educational and vocational history and his current work. He noted that Mr. Drury suffered from anxiety and depression in the past and was treated with anti-depressants from 2014 until 2018.

24Based on the testing he conducted, he did not believe that Mr. Drury fit into a specific category regarding his sexual interests. Dr. Bloom was not able to rule out an interest in early adolescent females and could not rule out having a continued vulnerability to inappropriate sexual acting out in the face of stress, anxiety and social isolation. Dr. Bloom recommended that Mr. Drury receive sexological treatment by a specialist such as at the Sexual Behaviors Clinic at the Centre for Addiction and Mental Health as well as counselling to address psychological and emotional issues.

POSITIONS OF THE PARTIES ON SENTENCE

25The Crown seeks a global sentence of five years’ imprisonment and the following ancillary orders: that Mr. Drury be named on the Sex Offender Registry for life, that a DNA sample be taken from him as this is a primary ground offence and that there be an order pursuant to s. 161(1)(d) that limits his use of the internet for five years. He further asks that there be a s. 161(1) order that Mr. Drury not attend public parks or swimming areas where persons under the age of 16 are present or be within two kilometers where the victims identified ordinarily reside or are known to be at. He also requests an order of non-communication pursuant to s. 743.21 with the named complainants and finally, a forfeiture order of the devices seized by police.

26Mr. Tice outlined a number of aggravating factors: that Mr. Drury actively sought out young teenage girls over the internet, shared sexual conversations and intimate images with them and that this occurred over a lengthy period of time. In the case of one of the victims, it was for three years, and it was not a minor involvement. There were multiple victims, and the images were catalogued and stored in such a way that suggested a fixation on this type of imagery. Mr. Tice points out that Mr. Drury was between 30 and 34 years old when the victims were 15 to 16 years old and he lied and said he was much younger. The Victim Impact statement of M.M. referenced the shame that she felt as a result of the experience which included grooming conduct. There were 7,825 images and 334 videos on his devices, many containing images of children 12 years of age or younger and for many, he had to go to the Dark Web to find them.

27Crown counsel acknowledged mitigating factors: that Mr. Drury had pleaded guilty and shown some remorse which saved having to have a trial. However, the plea followed a preliminary hearing and was not at the earliest time. Mr. Drury has no previous criminal record. He experienced family trauma and suffered loneliness and depression as outlined in the pre-sentence report. The Crown says that the pre-sentence report and the report of Dr. Bloom refer to Mr. Drury’s lack of insight and that he does not appreciate the impact of his offences and has not taken counselling or therapy.

28Mr. Tice points to a number of authorities regarding the appropriate sentence. In particular, in R. v. Friesen, 2020 SCC 89, the Supreme Court of Canada held that sentences for sexual offences against children should be increased to reflect the wrongfulness of these offences and the profound and ongoing harm they cause. Additional cases submitted by the Crown are referenced below.

29In summary, Mr. Tice submits that the five-year sentence takes into account the seriousness of the offences of child luring and possession of child pornography, that such possession must be deterred and that children are victimized each time such images are downloaded. He takes the position that if the sentences for possession of child pornography and child luring were consecutive, they would likely be 6 years but that the principles of totality and restraint given that Mr. Drury is a first offender, make the appropriate sentence one of five years.

30The defence seeks a global sentence of four years of imprisonment and does not oppose that the ancillary orders be imposed. He asks that the order for Mr. Drury’s name to be on the Sex Offender Registry be for 20 years and that the s. 161 order not prevent Mr. Drury from working in retail. Defence counsel submits that the sentence for the possession of child pornography conviction should be 18 months and the sentence for the child luring should be 2.5 years. Mr. McCuaig referenced Dr. Bloom’s report concerning when Mr. Drury accessed the Dark Web to find images and downloaded them. He says that when his social circumstances improved, his interest in this waned. Depression and acting out in this manner were connected. Mr. McCuaig suggests that Mr. Drury requires counselling but that the Risk Assessment put him at a low or low/moderate risk to re-offend. He emphasizes that Mr. Drury has no criminal record, he pleaded guilty to the charges, he is taking steps to have more healthy relationships, he is working and he has not been involved in any further wrongful acts and realizes that what he did was wrong.

31Defence counsel submits that there are differences between Mr. Drury’s case and the circumstances outlined in R. v. Moolla, [2021] O.J. No. 2906, a case relied upon by the Crown. In that case, there was a concerted attempt to meet and have sexual relations with the person who was posing as a 14-year-old child. Mr. McCuaig suggests that the exchange of images involves less moral culpability. Similarly, in R. v. Bahamonde, [2022] O.J. No. 757 (Sup. Ct.), the circumstances involved 13 counts including criminal harassment, threatening, extortion, luring, making and possessing child pornography and voyeurism with four victims. Mr. Drury was hording and exchanging images.

32Counsel for Mr. Drury also referenced certain jurisprudence which pre-dated Friesen and involved possession of child pornography. In R. v. Inksetter, 2018 ONCA 474, a sentence of 3.5 years was imposed by the Court of Appeal for a collection of 28,052 images of child pornography. In R. v. Branco [2019] O.J. No. 3170 (Ont. Ct. of Justice), the court imposed a sentence less than six months and considered the potential immigration consequences. In R. v. Scattolin, 2019 ONCJ 357, the court sentenced the offender to seven months followed by 3 years of probation for possession of 8,000 images and 64 videos. In R. v. Lysenchuk, 2016 ONSC 1009, where there were 5,920 images, the 65-year-old offender received a sentence of 9 months and 3 years’ probation.

33As for the offence of child luring, defence counsel cited the decision of R. v. Noonan 2023 ONSC 3351 where Justice Grace imposed a sentence of 18 months for child luring, 18 months for possession of child pornography and 12 months for each count of unlawfully accessing digital child pornography served concurrently to the other sentences where the offender was 34 years old and was communicating with a 13-year-old victim.

ANALYSIS AND THE LAW

34One of the offences to which Mr. Drury pleaded guilty is the offence of possession of child pornography contrary to s. 163.1(4)(a) of the Criminal Code. In the case of R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, Chief Justice McLachlin wrote about the child pornography provisions of the Criminal Code at para. 92:

Children are used and abused in the making of much of the child pornography that is caught by the law. Production of child pornography is fueled 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 harm to children is very strong. The abuse is broad in extent and devastating in impact. The child is traumatized by being used as a sexual object in the course of the making of the pornography….

35Justices L’Heureux-Dube, Gonthier and Bastarache also wrote in Sharpe at para. 158:

The very existence of child pornography, as it is defined by s. 162.1(1) of the Criminal Code, is inherently harmful to children and to society. This harm exists independently of dissemination or any risk of dissemination and flows directly from the existence of the pornographic representations, which on their own violate the dignity and equality rights of children. The harm of child pornography is inherent because degrading, dehumanizing, and objectifying depictions of children, by their very existence, undermine the Charter rights of children and other members of society. Child pornography eroticises the inferior social, economic, and sexual status of children. It preys on preexisting inequalities.

36The minimum sentences prescribed for offences in the child pornography sections have been struck down as being unconstitutional by several courts: see for example, R. v. John, 2018 ONCA 702, 142 O.R. (3d) 670. However, while the mandatory minimum sentences are unconstitutional, many of the sentences imposed are often for substantial periods of incarceration. The jurisprudence discusses the relevant factors on sentencing for child pornography offences which include the quantity of the collection of child pornography and whether there has been compliance with bail conditions pending trial.

37As outlined above, the case of R. v. Friesen reinforces the Supreme Court’s view that sentences for child sexual abuse offences must be increased to reflect the gravity of the offence and the ongoing impact upon the victim. While the court declined to set any specific length of sentence, the court gave guidance on the wrongfulness and harmfulness of sexual violence against children. In R. v. Moolla, Code J. wrote that the Crown was relying upon the cases of R. v. Woodward (2011), 2011 ONCA 610, 276 C.C.C. (3d) 86, at para. 58 (Ont. C.A.) and Friesen at paras. 46, 99-100 and 113 as well as Parliament’s decision to increase the maximum sentence from 10 years to 14 years in 2015 for internet child sex luring cases in submitting the appropriate range of sentence was a three-to-five-year sentence. He imposed a sentence of three and a half years for the internet child luring offence with credit of 12 months of pre-sentence custody and six months concurrent for the breach of probation offence. Mr. Moolla had a prior criminal record and was on probation at the time of the offence. Justice Code stayed the making sexually explicit material available to a child offence pursuant to the Kienapple principle.

38As noted above, in the case of R. v. Bahamonde, the offender pleaded guilty to a number of offences which included luring and distribution of child pornography, fail to comply and criminal harassment involving four individual victims. The Crown sought a sentence that would result in a global sentence of 14 to 15 years’ imprisonment. Applying the totality principle, the Crown position was nine years. Counsel for the defence sought a sentence of five years less credit for presentence custody and strict bail. The court imposed a seven-and-a-half-year sentence after taking into account the conditions of presentence incarceration and the time spent on strict house arrest bail.

39In R. v. Bekmambetov, [2021] O.J. No. 5228 (Sup. Ct.), Kelly J. sentenced a 54-year-old offender who pleaded guilty to possession of child pornography to two years’ imprisonment. The court noted that he had no criminal record, had been married for 35 years, had maintained employment, had several letters of support and had been diagnosed with pedophilia but was considered at a low risk to reoffend.

40In R. v. Carlos, [2015] O.J. No. 7757, the Crown sought a sentence of four years’ imprisonment and the defence sought time served which would equate to 1.5 years. The court imposed a sentence of three years’ imprisonment for possession of child pornography and three years’ imprisonment for make child pornography available to be served concurrently less credit for time served. The offender had 12 videos in a shared folder and a further 47 videos either incomplete or unable to be opened but with suggestive titles. He had pleaded guilty and was a first offender.

41In the case of R. v. Jonat, [2019] O.J. No. 1342, following a jury trial, the offender was convicted of one count of possession of child pornography, five counts of making child pornography available and one count of making child pornography. Dunphy J. sentenced him to thirty months for the count of possession of child pornography, three years for each of the five counts of making available child pornography and nine months for making child pornography, all served concurrently and with credit for time served.

42I turn to the issue of credit for the time spent on judicial interim release.

43In the case of R. v. Downes, (2006) 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321 (C.A.), Rosenberg J.A. on behalf of the Court of Appeal, held that time spent while on stringent bail conditions is a relevant mitigating factor that a sentencing judge must consider: see Downes, at para. 37.

44The court is to look at the factors of the length of time on bail subject to the conditions; the stringency of the conditions; the impact on the offender’s liberty; and the offender’s ability to carry on normal relationships, employment and activity. The judge has discretion to determine the impact of such mitigation. There is no set formula for credit.

DECISION

45Before turning to the specific circumstances of this case, I outline certain general sentencing principles. The fundamental purpose of sentencing is set out in s. 718 of the Criminal Code. It is to ensure respect for the law and to promote a just, peaceful and safe society. The imposition of just sanctions requires that I consider the sentencing objectives referred to in this section. They are: denunciation of unlawful conduct; deterrence of the offender and other persons from committing offences, separating offenders from society where necessary, assisting in rehabilitation of offenders, providing reparation for harm done to victims or to the community, promoting a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community.

46A sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender. When imposing sentence, I am to take into account certain factors which may increase or reduce the sentence because of aggravating or mitigating circumstances. The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances, where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh, that the offender should not be deprived of liberty if less restrictive sanctions are appropriate and that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, particularly aboriginal offenders.

47In cases involving possessing, making or accessing child pornography or cases of child luring, the courts have ruled that deterrence and the protection of the public are of paramount consideration.

48As I have indicated, a proper sentence must take into account both the circumstances of the offence and the circumstances of the offender. In the case of Mr. Drury, I consider the following circumstances to be relevant:

49Mr. Drury is 38 years of age and was born on September 28, 1985 in Mississauga, Ontario. He is a Canadian citizen. He is single and has no dependents. He is an only child. Mr. Drury had a difficult childhood. His parents separated when he was 13 years old. He had little contact with his father since the separation and the last email contact was in 2012. He had always been closer to his mother who had re-married. Mr. Drury’s mother died in 2017. Mr. Drury was deeply affected by the death of his mother.

50Mr. Drury is close to his uncle Ronald Niskanen who provided information to the probation officer who prepared the pre-sentence report. He is also close to an aunt who lives in Orangeville. Mr. Niskanen confirmed that Mr. Drury has been living with him since 2019. He said that his late sister had a relationship with an abusive man after she separated from Mr. Drury’s father and he had to help remove Mr. Drury and his mother from that situation. Mr. Drury lives with his uncle at the present time. His uncle says that he has a very small circle of friends and that “he is a real loner type of guy.” Since these charges, Mr. Drury has not had a significant relationship. The uncle is willing to continue supervising Mr. Drury in the community if that is necessary.

51Mr. Drury has a high school education and then graduated with honors in English literature from university. His attendance in high school was poor because he was bullied and picked on a lot. His grades were variable as a result. His experience in university was much more positive and there he made friends. Since university, he was employed in various retail positions but lost his job because of the COVID-19 pandemic. He was unemployed for a period of time and has been working in a record store for the past eight months. He works anywhere from 25 to 40 hours per week. The probation officer confirmed this from paystubs which covered the dates October 21, 2022 to February 24, 2023.

52Mr. Drury spends time watching movies and listening to music. He says he has no issues with alcohol or other substances. The probation officer found Mr. Drury to be polite, cooperative and forthcoming for the most part. He was not comfortable discussing the offences and said, he “definitely regrets his behaviour.” He told the probation officer that he had been going through a difficult time, had mental health issues and feelings of grief concerning his mother’s death. He began to isolate himself and reached out online instead of interacting with others. Mr. Drury said he had suffered from anxiety and depression and was prescribed medication to address agoraphobia. Medication was prescribed late in 2017 until early 2018 but he developed negative side effects. He does not take this medication at this time and advised the probation officer that he has not been experiencing any anxiety attacks or symptoms consistent with agoraphobia since stopping the medication. The diagnosis and the medications prescribed were confirmed by Dr. Roland E. Amolins who was his family physician but has not seen Mr. Drury since mid-2018.

53Mr. Drury has not undergone any counselling or rehabilitative programming. He did spend a considerable amount of time in the assessment process with Dr. Hy Bloom in preparation of the psychiatric report. Mr. Drury has no criminal record. The probation officer set out a number of terms of community supervision that she would recommend should Mr. Drury be released to the community.

54Following these charges, as a result of the terms of his release, for the last four years, Mr. Drury has been on a surety bail and has lived under conditions which were somewhat difficult including restrictions on his use of the internet. He is prohibited from possessing a device that could access the internet and uses a flip telephone instead. Mr. Drury has been able to work during the period of release. I am advised that he has complied with all conditions throughout this time.

55With respect to the circumstances of the offences, Mr. Drury has been convicted of offences which are extremely serious. The gravity of the offences against children is significant. These types of offences generally call for substantial periods of imprisonment to demonstrate the reprehensible nature of such conduct.

56In terms of mitigating factors, he has entered a plea of guilty and thus demonstrated remorse. Following his arrest, although he had a preliminary hearing, he has been on a resolution track since then. He has saved the court valuable resources that would have been necessary to expend with a trial. Mr. Drury has no criminal record.

57Again, with respect to the circumstances of the offence, being in possession of images which depict children in sexual acts and child luring are offences which call for deterrence and denunciation. The jurisprudence emphasizes society’s condemnation of such conduct. However, rehabilitation of the offender is also a key objective in ultimately protecting society. I recognize that Mr. Drury has expressed remorse with this guilty plea. His plea of guilty is extremely relevant in not utilizing valuable court time at a time of significant backlogs and strains on court resources caused by the COVID-19 pandemic.

58I consider the factor that Mr. Drury has been on bail for four years. While there was no house arrest and he was able to work, nonetheless, I do consider the restrictions on him and his compliance with the bail terms in the overall sentence I impose.

59In summary, in considering all the aggravating and mitigating factors, I impose a global sentence of four years’ imprisonment which will consist of 2.5 years for the offence of child luring and 18 months for each count of possession of child pornography to be served concurrently to each other but consecutively to the sentence for child luring of 2.5 years. Again, the global sentence is 4 years. In reaching this sentence, I consider the principles of deterrence and denunciation as well as the objective of rehabilitation. I am also mindful of the totality principle and the principle of restraint.

60There will be an order pursuant to s. 490.011 of the Criminal Code that Mr. Drury comply with the requirements of the Sex Offender Registration Act, S.C. 2004, c. 10 for a period of 20 years.

61There shall be a forfeiture order under s. 164.2(1) for the materials identified in the draft order provided.

62There shall be an order for a sample of Mr. Drury’s DNA to be taken in accordance with s. 487.051 as child luring is a primary designated offence.

63There will be a prohibition order under s. 161(1)(a) of the Criminal Code that for five years following his custodial sentence, Mr. Drury is prohibited from attending a public park, public swimming area, daycare centre, schoolground, playground or community centre, where persons under the age of 16 years are present, unless in the constant presence of a person over the age of 18 years who is known to him.

64There will be a prohibition order under s. 161(1)(b) of the Criminal Code for a period of five years following the end of his custodial sentence, that Mr. Drury is not to seek, obtain or continue any employment, whether remunerated or not, or become or be a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years.

65There will be a prohibition order under s. 161(1)(c ) of the Criminal Code and for a period of five years following the end of his custodial sentence. Mr. Drury is not to have any contact, including communicating by any means, with a person who is under the age of 16 years, unless in the constant presence of an adult who is at least 18 years old who is known to him.

66There shall be a prohibition order for five years under s. 161(1)(d) such that Mr. Drury may not use or access the internet or other digital network unless on his own device equipped with software that blocks access to social networking sites. Where he is not self-employed, he may use or access the internet at his place of business but not to use any telecommunications device to access child pornography or participate in chat rooms, bulletin boards or other social media that discuss or promote child exploitation, child pornography, sexualized images of children or other child exploitation material.

67There will be an order of no communication or contact with the named complainants pursuant to s. 743.21 of the Criminal Code.

Himel J.

Released: January 16, 2024

CITATION: R. v. Drury, 2024 ONSC 1064

COURT FILE NO.: CR-21-50000334-0000

DATE: 20240116

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

and -

BRIAN DRURY

REASONS FOR sentence

Himel J.

Released: January 16, 2024

His Majesty the King v. Brian Drury, 2024 ONSC 1064

Case Summary

Restriction on Publication AND ORDER SEALING EXHIBITS

REASONS FOR SENTENCE

FACTUAL BACKGROUND

EVIDENCE AT THE SENTENCING HEARING

POSITIONS OF THE PARTIES ON SENTENCE

ANALYSIS AND THE LAW

DECISION

CITATION: R. v. Drury, 2024 ONSC 1064

SUPERIOR COURT OF JUSTICE

REASONS FOR sentence

His Majesty the King v. Brian Drury, 2024 ONSC 1064

Case Summary

Restriction on Publication AND ORDER SEALING EXHIBITS

REASONS FOR SENTENCE

FACTUAL BACKGROUND

EVIDENCE AT THE SENTENCING HEARING

POSITIONS OF THE PARTIES ON SENTENCE

ANALYSIS AND THE LAW

DECISION

CITATION: R. v. Drury, 2024 ONSC 1064

SUPERIOR COURT OF JUSTICE

REASONS FOR sentence