ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-23-14

DATE: 2024/04/26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

CHRISTOPHER HANNAH

Accused

Holly Chiavetti, for the Crown

Michael Rodé, for the Accused

HEARD: August 25 and December 14, 2023, March 8, 21, 25 and 26, 2024

W A R N I N G

The court hearing this matter directs that the following notice be attached to the file:

An order restricting publication in this proceeding under sections 486.4 or 486.6 of the Criminal Code shall continue. These sections of the Criminal Code provide as follows:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph

(i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order;

(b) on application of the victim or the prosecutor, make the order; and

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

486.6 (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(c) a warning to the individual is not appropriate.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

LACELLE J.

REASONS FOR SENTENCE

Introduction

1The offender, Christopher Hannah, is before me for sentencing following his guilty pleas to the following offences involving 12 victims:

a. Luring a child for the purpose of committing an offence under s. 163.1 x 2 (s. 172.1(2) of the Criminal Code, R.S.C. 1985, c. C-46);

b. Transmitting child pornography x 2 (s. 163.1(3));

c. Obtaining by false pretences (nude images) x 4 (s. 362(1)(a));

d. Possession of child pornography x 3 (s. 163.1(4));

e. Publishing an intimate image without consent x 2 (s. 162.1);

f. Mischief to data x 1 (s. 430(5)).

2The offender is a young man. He is now 23 years old. He was between the ages of 18-20 at the time he committed the offences. He has no prior criminal record.

3The Crown seeks a sentence of five years in custody. The defence submits a conditional sentence of two years less a day followed by a lengthy probation order is fit.

4This is a difficult and complex sentencing case. The offender has committed offences of varying types which are closely connected to one another. His offending has been against adolescents and adults. He has 12 victims. His conduct is not identical in respect of each of them, however.

5This case is also unusual in that the offender committed his offences as a participant in a larger group engaged in similar and worse offences. These offences were committed to obtain intimate images of girls and women so that they might be traded for similar images. This is a disturbing feature of the offences.

6This decision is important to Mr. Hannah, a youthful first offender whose liberty interests are at stake. It is important too to each of the victims who have been harmed by the offender. Finally, this decision is important to the community and the public, who are justifiably concerned about the circumstances of these offences and the impact of offences like these upon young people in our community.

7Accordingly, in my reasons for sentence, and for the benefit of all, I think it is important to outline as clearly as I can the facts and the law that I must consider in determining a fit sentence for Mr. Hannah.

8I begin with a summary of the offences.

The offences and their impact

9The offender became involved in an online group on a social media app called Kik Messenger. The unidentified individuals in this group worked together to unlawfully obtain images of nude females and exchange them with one another. In many instances, members of the group would harass or extort these girls and women for additional nude photos. The offender was part of this group for two years.

10While a part of this group, the offender committed a number of offences involving 12 girls or young women, some of whom he knew. He was arrested following an investigation prompted by one of these young women coming forward to police.

11While his pleas relate only to certain counts on the indictment (they are referenced below), the following facts have been agreed to for the purposes of the plea and sentencing. I consider all of the facts in determining a fit sentence.

Sydney Taylor[1] [publishing intimate image without consent (ct. 36), mischief to data (ct. 34)]

12On December 11, 2020, Sydney Taylor filed a report with police because her Snapchat account had been hacked and she was being blackmailed by an unknown person to send nude images of herself. The offender was the person who hacked her account. He is not the person who blackmailed her.

13Sydney had first become aware of an issue with her account on November 2, 2020. She received an email notification from Snapchat advising that someone from a specified IP address had accessed her Snapchat account with an iPhone model XR. Sydney was then locked out of her Snapchat account, not gaining access again until November 14, 2020. Investigation would later reveal this IP address was registered to the offender’s parents and the offender’s iPhone was the device that accessed her account.

14On December 2, 2020, Sydney began receiving text messages from a number she did not recognize. One of the texts included a nude image of herself that had been in her Snapchat account. She had not sent this image to anyone.

15On December 6, 2020, Sydney received text messages from a different number which was unknown to her. The unknown suspect claimed to have located her photos online and said he had deleted as many as he could to help her. This person then asked to move to Snapchat to communicate, as it would be easier to explain the story from that application. Sydney eventually moved the conversation over to Snapchat. Once on Snapchat, the suspect started off by ostensibly trying to help Sydney find the person who had hacked her account. Then the person said they would appreciate a photo that was along the lines of the ones that were stolen. Sydney was then sent nude photos of herself which had been stolen from her account. The suspect told her, “How about you do what I say please, You arent getting rid of me, So you need to answer now.” Sydney also received a message stating, “Show me your tits”, and messages threatening to send the nude images to her boyfriend and to her father.

16Sydney stopped communicating with the number and blocked it and the Snapchat account. She then contacted police to report the incident.

17In the course of their investigation, the police ultimately seized the offender’s cell phone and found in its file structure a folder labelled “613”. Within the “613” folder there were 16 sub-folders each with a first name. This led police to believe that more victims might exist and the investigation continued.

18As for the offences involving Sydney, the offender was not linked to the numbers or Snapchat accounts sending harassing messages to her. However, the messages were believed to have come from the online group in which he was a participant.

The victim impact

19Sydney confirmed in her victim impact statement that the offender is known to her. He attended school with some of her friends. He was a friend of a friend of her brother’s and played basketball against her brother. That someone who knew her, who lived in her “own town”, shared these intimate photos of her, has caused her even more discomfort.

20Sydney is now 25 years old and has been living with the consequences of the offender’s hack of her Snapchat account for a few years. Sydney reports in her victim impact statement that since her personal information was distributed along with her photos, she has been sexually harassed. She has received texts including photos of her own body from phone numbers from all over the world. When the harassment started in December of 2020, she felt afraid for her life as the attacks seemed personal. She thought she had a stalker. The messages she received from these unknown numbers included very personal information, like where her father worked.

21Given that this information has now been released in the public domain, Sydney is worried that she might be blackmailed at any time. She realizes this is something that might have an impact on her at every phase of her life, especially her professional one. She continues to experience harassment.

22Sydney also described in both her victim impact statement and to the author of the Pre-Sentence Report (“PSR”) how the offences have affected her roommates, her family, and her boyfriend’s family. They have all been fearful about what was occurring.

23Sydney reports that she has seen a therapist to cope. She was told her symptoms were in line with Post-Traumatic Stress Disorder. Since the offences, she has had difficulty sleeping as she wakes in the night worried someone is watching her and lives with immense fear. She has taken time away from school and missed important exams. The offences have changed the path of her life, and she feels like the impact of the offences will stay with her for life. She is constantly worried about who has access to her images and whether they too will use them against her some day. She does not feel safe, and this has had a physical impact upon her since her body has been in “fight or flight” mode for several years.

Complainant X [luring for the purposes of committing a child pornography offence (ct. 1), transmitting child pornography (ct. 3), obtain nude images by false pretences (ct. 7)]

24Complainant X was 15 years old when she was messaged by someone who asked her to send nude images. The messages started on Instagram, and then moved to the application used by the offender’s online group.

25Complainant X was initially told she would be paid just to talk. Later, the individual began telling her to pose and take nude images. Complainant X became uncomfortable after taking photos and videos and, after a few days, she stopped communicating with the individual. She did not receive any money as a result of sending the images.

26Investigation revealed that this conversation was with the offender. Complainant X recalled that he asked her age, and she told him she was 15 years of age, turning 16 soon.

27The examination of the offender’s phone revealed that on November 30, 2020, a “Mega.nz” link was sent via the app used by the online group to an unknown offender. The conversation preceding the link suggested that the Mega link contained all of the images and videos of Complainant X.

28On December 22, 2020, the offender shared several nude images in the form of a contact sheet or collage of Complainant X to another user in his online group. These images were sent to a different username than the person who received the link on November 30.

29In total, 26 images and 52 videos depicting Complainant X were found on the offender's phone. The images and videos were of Complainant X in sexually explicit poses. Several of the videos also showed Complainant X engaged in masturbation. These images and videos meet the definition of child pornography.

The victim impact

30Complainant X is now 19. She was 15 when the offender contacted her on the internet and asked her to provide sexual images of herself to him. The offences have had a significant impact on Complainant X’s mental health. She has always struggled with mental health issues, but since the offences, she has had to start a new medication. She has difficulty trusting others and feels everyone has bad intentions.

Complainant Y [luring for the purposes of committing a child pornography offence (ct. 8), transmitting child pornography (ct. 10), possession of child pornography (ct. 11), obtain nude images by false pretences (ct. 13)]

31Complainant Y was 17 years old when she was messaged by someone looking for photos in September of 2020. The messages started on Instagram and then moved on to the app used by the offender’s online group. Complainant Y was, in fact, being messaged by the offender.

32Complainant Y recalled being told the person messaging her was looking for a sugar baby and agreed to pay her for her photos. Later, the conversation moved to talk about doing “sessions” for money. Complainant Y believed she disclosed she was 17 years old. Complainant Y recalled receiving a small amount of money early on for a coffee, but nothing else. An e-transfer receipt shows that the offender sent her $5.

33The offender shared two images of Complainant Y while involved in a group chat with his online group. One of the images shared was of Complainant Y in lingerie, the other was of her performing oral sex on a male.

34In total ten images and seven video files involving Complainant Y were found on the offender’s phone. These videos and images meet the definition of child pornography.

The victim impact

35Complainant Y reports that the offences have caused her extreme stress. Since being contacted by police, she has felt uneasy, scared and embarrassed. She has suffered from mental health issues and difficulty sleeping. She has sought professional medical assistance, and has been prescribed medications for anxiety, depression and sleep issues. She has experienced fear about the offender and what he might be capable of.

Complainant Z [possession of child pornography (ct. 30)]

36The offender had a folder on his phone labeled Complainant Z’s first name which contained images of Complainant Z. Complainant Z was under 18 in almost all the images that the offender had in his possession. These images meet the definition of child pornography.

37Complainant Z told police that both of her Snapchat accounts had been hacked.

The impact of the offences

38Complainant Z is now 23. She and the offender shared mutual friends. This has been unsettling to her. She never would have thought someone with whom she shared friends might do this to her.

39Finding out about the offences was traumatic. She reports that the experience has been a lot for a young woman to go through. She feels violated and that her dignity was stolen from her. As a result of the offences, she has trust issues with men. She will be more cautious in the future about what she has on her phone, but also says that she shouldn’t have to regulate what she does with her own personal property.

Complainant A [possession of child pornography (ct. 32)]

40Complainant A knew the offender because [details omitted to protect the complainant’s identify]. She never shared any nude images of herself with him and had not spoken with him since high school.

41The offender’s phone had images and videos of Complainant A. She was accordingly approached by police for this investigation.

42By this point, Complainant A was already aware that an image of her had been posted online without her consent. She had reported this to police, but no one was charged.

43Complainant A was very upset about these events. The images had been taken when she was 16. She believed the image posted online and others were taken from Snapchat. The images met the definition of child pornography.

44Complainant A also advised police that her boyfriend had been receiving messages from an unknown person. These messages were not linked to the offender but are believed to have been associated with the online group in which he was participating.

45Complainant A also provided police with screenshots from a fake account that had been started with her image.

The victim impact

46Complainant A wrote a poem to express the impact of the offences upon her. It powerfully describes the inner turmoil she felt in learning what had been done with her private images. Her poem relates how, because of the offences, her body stopped being her own and became “everyone else’s”. It describes her anxiety and worry about what others now know about her.

47When discussing the offences with the author of the PSR, Complainant A described that the offences impacted her [details omitted to protect the complainant’s identity], a time that should have been positive. She reports that [details omitted to protect the complainant’s identity] have been affected by her anxiety surrounding her victimization. She does not know who has seen her images and this causes her anxiety in going out in public. Her anxiety is so severe that when she goes out in public, she disguises herself in an effort not to be recognized. She is hesitant to use social media accounts. She reports that the offences have also impacted her [details omitted to protect the complainant’s privacy] and everyone around her.

Complainant B [possession of child pornography (ct. 32)]

48Complainant B does not know the offender. However, images of her were found on his phone.

49Complainant B believes she was 16 in the photographs, and that they would have been taken or sent with Snapchat. Complainant B advised some of the photos were ones she sent to friends and were not part of her Snapchat story. Complainant B could tell the photos were from Snapchat as she recognized the text boxes in some of the photos.

50Complainant B had no idea how the offender got her photos. Complainant B also advised police that one month before they spoke with her, someone created a fake account with her photos on it. Complainant B recalled having her account hacked several years ago and being locked out of her account for a day until she was able to gain access to the account.

51All of the photos possessed by the offender were photos that were saved in Complainant B’s Snapchat memories. They meet the definition of child pornography.

The victim impact

52Complainant B is now 21. She was under 18 in the photos obtained by the offender. She was 17 when she learned he had them. She feels very scared, confused, and angry. She does not know where the images of her are “floating around”, and in whose possession. She feels her privacy has been compromised even by the police investigation, since a police officer had to view her images on the offender’s phone. She had experienced trauma before these events and the offences have exacerbated her victimization and need for ongoing counseling. She has a difficult time trusting men.

Complainant C

53Complainant C was contacted through two different accounts on social media. She was offered money to send photographs and believes she was paid for them by e-transfer a few times. The user of each account (which Complainant C believed to be the same person) threatened that they would send the images to other people if she did not cooperate further.

54The messages sent to Complainant C were not tied to the offender directly. However, it is believed that the messages were attributable to others in his online group since photos of Complainant C were found on the offender’s phone.

Complainant D

55Complainant D knew the offender. As she explained in her victim impact statement, they had known each other since [detail omitted to protect complainant’s identity] and were at one point part of a group of friends that was very close. At the time of the offences, they had been working together.

56Images from Complainant D’s Snapchat account were found on the offender’s phone. She had not sent these nude images to him. She was very upset to learn from police that he had them.

57Investigation determined that Complainant D’s Snapchat account was accessed by an unauthorized device on September 18, 2019.

58The device used to hack into Complainant D’s account was not linked to the offender. However, it is believed his online group was responsible for the hack since he had nude photos of Complainant D on his phone.

The victim impact

59Complainant D and the offender had been so close when they first knew each other that, along with [details omitted to protect complainant’s identity]. They remained that way until [details omitted to protect the complainant’s identity]. They had recently reconnected because [details omitted to protect the complainant’s identify]. She trusted the offender. She explained: “To know that someone I had such history with and trusted would go to these lengths to hurt and exploit me has been devastating. It has impacted the trust I have for all people in my life”.

60Complainant D’s overall well-being has been impacted by the offences. She grapples with feelings of humiliation, shame and powerlessness. She worries about the fact that her private images remain “out there”. She thinks about this often. She is diagnosed with a general anxiety disorder which has been made worse by the offences. She is feeling these impacts in her personal and professional lives, where she is experiencing isolation, pulling away from others, and an inability to be fully present when she is at work. The court process has also impacted her since she has had to take time off for court and to process the thoughts expressed in her victim impact statement.

Complainant E

61Images of Complainant E were found on the offender’s phone. The images were from her Snapchat account. They had never been collectively sent to one person.

62Complainant E advised police that her account was hacked in 2018. The images found on the offender’s phone were from years earlier still.

63The hack of Complainant E’s phone has not been linked to the offender. However, it is believed his online group was responsible for it and this is how he came to have these images of Complainant E on his phone.

Complainant F [obtain nude images by false pretences (ct. 22)]

64The offender’s phone also had photos and videos of Complainant F.

65Complainant F told police that an individual, later confirmed to be the offender, had offered her money in exchange for the images. Complainant F recalled being offered a lot of money. However, as soon as the photos were sent, she was blocked on social media. Complainant F believed this occurred between May and August of 2020. Complainant F recalled replying to a “sugar daddy” style ad and believes this is how the communication started.

66Complainant F recalled that she was directed about what photos to take. She was pushed to send images that included her face, but she declined.

67Complainant F had not taken any images like this before and told police she was extremely embarrassed and worried now knowing that these images could be out there and used at any time against her.

Complainant G [obtain nude images by false pretences (ct. 25)]

68Complainant G was messaged on Instagram with someone offering to pay her for photos. She recalled being offered $200-$400 for photos and dirty talk. Complainant G sent images and engaged in sexual conversation with a person later confirmed to be the offender. Afterwards, he removed her from social media accounts. Complainant G did not receive any payment for the images.

69Later, Complainant G received a message through Facebook with someone threatening to send her images to family if she didn't send more. This threat was received in July 2019.

70Complainant G knew the offender because she went to school with him. She described his behaviour at school as weird. He would often awkwardly stare at her. Complainant G would not have shared any images or spoken with the offender if she had known that he was the person communicating with her.

71An analysis of the offender’s phone revealed that on November 30, 2020, he sent a Mega.nz link containing nude images of Complainant G to an unknown user while using the application where he communicated with his online group.

The victim impact

72Complainant G is now 22. She was 18 at the time of the offences. She went to high school with the offender, but intuited negative things from him and deliberately did not engage with him. She is a private person and only agreed to send her images because of the compensation that was promised to her. This eventually escalated into threats. Had she known she was engaging with the offender, she would have disengaged immediately. She has been informed that her images have been sent to numerous individuals. She lives in fear wondering who has received her images and where they are now. This has caused her tremendous anxiety. She is terrified for her reputation and has not even told her family about these offences. She worries about being blackmailed in the future and that her images might be sent to her family. She is in therapy to deal with the trauma arising from what the offender has done. She has no trust in others and feels there is nothing she can do to get her former self back.

Complainant H

73Complainant H knew the offender through friends. He had sent a request to follow her private Instagram a few years prior to the police investigation.

74The offender’s phone was found to contain images of Complainant H. One photo was from her Instagram, the second from her Only Fans. The remainder of the images were sent in private via Snapchat, most likely to her boyfriend. Complainant H recalled being blocked out of her Snapchat account before and losing access to the account.

75The offender is not linked to this hack, though it is believed his online group was responsible for it and this is how he came to have images of Complainant H on his phone.

The circumstances of the offender

The Pre-Sentence Report

76The offender, who as I have said is now 23 years old, comes from a loving home. He reports that his parents have gone the “extra mile” for him and his younger brother. He continues to be supported by both his mother and father. His younger brother, however, now has a strained relationship with him as a result of these offences.

77The offender was attending a college program when he committed the offences and has completed a certificate in his program. He would like to obtain a degree eventually. For the moment, he is unemployed and relying on his parents for financial support.

78He is reported to have done very well in high school, having played a number of sports and being chosen as valedictorian. He was never in trouble and has held jobs since the age of fifteen.

79The offender accepted responsibility for his offences. He described having a fascination with pornography which intensified with age. He now thinks that he was addicted to it. He recognizes that his conduct in committing the offences has severely hurt many people, an insight he has developed with the assistance of a psychotherapist. He feels immense amounts of guilt and shame because of his conduct, and this has led to suicidal ideation. He has learned to cope with these thoughts with his therapist. The offender feels he is now a “more complete human” than he was when he committed the offences.

80As for his mental health, the offender appears to have had no diagnoses prior to committing these offences. He has struggled with depression since being arrested.

81The offender and his parents noted the restrictions he has lived with while on bail. During this time, he has spent a great deal of time with his father, who reports a close relationship with him. They have engaged in activities such as golfing, hunting and fishing.

82The offender has been attending psychotherapy appointments consistently since his arrest. He reports that these appointments have helped him to cope and acknowledge the harm he has done to the victims.

83The author of the PSR concludes that the offender is a suitable candidate for community supervision.

The letter of Justin McCourt

84The offender has been undergoing counseling with Mr. McCourt since just after his arrest in January of 2021. The offender initially sought treatment due to feelings associated with his legal issues, but also set goals of understanding how his behaviour impacted others and his family. In the past three years he has completed 110 hours of individual therapy.

85Mr. McCourt reports the offender has been highly engaged in therapy and has developed a deeper understanding of his behaviour. Mr. McCourt reports there have been no “relapses into old patterns of behaviour” and that the offender has been able to implement the changes he has made.

86During therapy, the offender has discussed and acknowledged the impact his actions have had.

The offender’s expression of remorse

87The offender addressed the court at his sentencing hearing. He apologized for what he has done. His comments show insight into how his conduct has hurt others. I accept his expression of remorse and insight as sincere.

The legal principles

88The law that I must consider in determining a fit sentence comes from the Criminal Code as well as case law. I turn now to an overview of the legal principles at play.

The Criminal Code

89In determining a fit sentence for any case, a judge must consider that the fundamental purpose of sentencing is to ensure respect for the law and the maintenance of a just, peaceful and safe society. The imposition of just sanctions requires me to consider the sentencing objectives referred to in s. 718 of the Criminal Code. These are denunciation, deterrence, separation of offenders from society when necessary, rehabilitation, reparation for harm done and the promotion of a sense of responsibility in offenders and acknowledgment of the harm which criminal activity brings to our community. In addition, in imposing sentence I must apply the principle of proportionality and consider the applicable aggravating and mitigating circumstances relating to the offences. The sentence imposed must also be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

90In this case, I must also give effect to s. 718.01 of the Criminal Code. With this section, Parliament has made clear that where an offence involves the abuse of anyone under the age of 18, denunciation and deterrence must be given “primary consideration” (emphasis added) when imposing sentence: s. 718.01. It is not open to sentencing judges to elevate other sentencing principles, such as rehabilitation, to an equal or higher priority. Sentencing judges may, however, accord significant weight to other factors in exercising discretion in arriving at a fit sentence, in accordance with the overall principle of proportionality: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 104; see also R. v. McCaw, 2023 ONCA 8, 165 O.R. (3d) 179, at para. 28.

The principle of restraint

91One of the sentencing principles that applies in this instance is the principle of restraint. The Criminal Code directs that incarceration, particularly for young first offenders, is a sanction of last resort: ss. 718.2(d) and (e); R. v. Thurairajah, 2008 ONCA 91, 89 O.R. (3d) 99, at para. 44. I must apply the direction from the Supreme Court of Canada in R. v. Bertrand Marchand, 2023 SCC 26, at para. 152, citing R. v. Brown, 2015 ONCA 361, 126 O.R. (3d) 797, and R. v. Laine, 2015 ONCA 519, 338 O.A.C. 264, that a youthful first-time offender should benefit from the shortest possible sentence proportionate to the offence at issue.

Consecutive sentences and the principle of totality

92Section 718.3(7) requires that when an offender is being sentenced for more than one offence committed against a child, any sentence of imprisonment it imposes for a child pornography offence must be served consecutively to a sentence of imprisonment it imposes for a sexual offence under another section of the Criminal Code. In this case, this means that for the offences involving Complainant X and Complainant Y, the sentence for the offender’s child pornography offences must be consecutive to the sentence for his luring offences.

93In Bertrand Marchand, the court endorsed the following approach: the sentencing judge should first determine the just and appropriate sentence for each offence individually. Next, she should consider whether the sentences ought to be consecutive or concurrent. Only after doing this does the judge consider the principle of totality, “which ensures that ‘the cumulative sentence rendered does not exceed the overall culpability of the offender’”: at para. 91. This approach was endorsed over setting a global amount for multiple offences because the sequential approach ensures a separate consideration of the fit and appropriate punishment for each offence. This provides clarity, and is of assistance in any subsequent sentencing should an offender re-offend: at paras. 92-93.

94As for when a sentence should be imposed to be served consecutively or concurrently, Martin J. re-iterated that “[g]enerally speaking, ‘offences that are so closely linked to each other as to constitute a single criminal adventure may, but are not required to, receive concurrent sentences, while all other offences are to receive consecutive sentences’”: Bertrand Marchand, at para. 95, citing Friesen, at para. 155. Further, “[o]ffences constituting ‘invasions of different legally protected interests’ can be sentenced consecutively, even if they form part of the same criminal transaction”. In most cases where luring is involved, luring will attract a consecutive sentence, although this will not always be the case. In exercising their discretion, “judges must remain cognizant of the fact that the offence of luring constitutes an invasion of a different legally protected interest” than any secondary offence also committed by the offender: at paras. 97-98.

Totality

95Judges must ensure that a series of sentences are “just and appropriate”: s. 718.2(c). “This involves taking ‘one last look at the combined sentence’ to assess whether it is ‘unduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility of the offender’”. Sentences may be adjusted by making some concurrent in order to respect the totality principle. If this “does not achieve a just and appropriate sentence”, a judge may reduce the length of one or more sentences: Bertrand Marchand, at para. 99.

The directives from the Supreme Court of Canada

R. v. Friesen: principles relating to sexual offences against children

96The case of Friesen has modernized this country’s approach to sentencing for sexual offences against children. The court’s comments apply in this case to the child pornography and luring offences committed by Mr. Hannah.

97Friesen has sent a clarion call to lower courts telling judges that sexual offences against children are violent crimes that cause profound harm to children, families and communities, and that sentences for these crimes “must increase”: at para. 5. Friesen emphasizes that this message had also been clearly sent by Parliament, which has repeatedly increased maximum sentences for sexual offences against children as society’s recognition of the gravity of sexual offences against children has grown: at paras. 95-100. Friesen directs that an upward departure from prior precedents and sentencing ranges may be required to impose a proportionate sentence: at para. 107.

98In respect of offences involving child pornography, Friesen recognized the harm caused by the nature of these offences. It acknowledged that “online 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”: at para. 48.

99Friesen explained that courts need to take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle, as they both impact on the gravity of the offence and the degree of responsibility of the offender: at para. 75. The court held the following at para. 76:

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. We thus offer some guidance on how courts should give effect to the gravity of sexual offences against children. Specifically, courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and, (3) the actual harm that children suffer as a result of these offences. We emphasize that sexual offences against children are inherently wrongful and always put children at risk of serious harm, even as the degree of wrongfulness, the extent to which potential harm materializes, and actual harm may vary from case to case. [Citations omitted. Emphasis added.]

100Of particular relevance to this case is that Friesen expressly recognized the harm caused to adolescents who experience violations of their sexual integrity. Further, the court stated that “courts must also be particularly careful to impose proportionate sentences in cases where the victim is an adolescent” (emphasis added). It explained the reason for this in this way at para. 136 as follows:

Historically, disproportionately low sentences have been imposed in these cases, particularly in cases involving adolescent girls, even though adolescents may be an age group that is disproportionately victimized by sexual violence. In particular, sexual violence by adult men against adolescent girls is associated with higher rates of physical injury, suicide, substance abuse, and unwanted pregnancy. [Citations omitted.]

101The Friesen court also discussed the impact of an offender’s guilty plea and remorse. Where the Crown’s case against an offender is overwhelming (for instance, because the conduct was recorded), a guilty plea is entitled to less weight. Nevertheless, the plea does have other advantages that count in mitigation, including saving court resources and providing finality to victims: at para. 164.

102As for an offender’s remorse, which may be a mitigating factor, it “gains added significance when it is paired with insight and signs that the offender has ‘come to realize the gravity of the conduct, and as a result has achieved a change in attitude or imposed some self-discipline which significantly reduces the likelihood of further offending’” (emphasis in original): at para. 165.

R. v. Bertrand Marchand: principles relevant to sentencing for luring

103In the recent case of Bertrand Marchand, the court provided directives for sentencing in luring offences. The court’s comments therefore apply to considerations of the luring offences involving Complainant X and Complainant Y, who were 15 and 17 years old at the time of the offences.

104Writing for the majority, Martin J. discussed the harms caused by luring. She noted that the “online world and digital communications between adults and children warrant special regulation because children are particularly vulnerable to manipulation in online settings”: at para. 7. While luring requires that an offender intend to facilitate the commission of a listed secondary offence, the preparatory conduct of luring produces its own distinct form of wrongfulness and harms: at para. 12. “[T]he offender’s conduct can constitute a form of psychological sexual violence that has the potential to cause serious harm”, and with sexual abuse comes serious emotional and psychological harm that “may often be more pervasive and permanent in its effect than any physical harm”: at para. 37, citing Friesen, at para. 56, citing R. v. McCraw, 1991 CanLII 29 (SCC), [1991] 3 S.C.R. 72 at p. 81. Martin J. noted that “[v]ictims of luring often feel that they actively participated in their own abuse, which may increase self-blame, internalization and shame. This worsens the psychological harm”: at para. 39. The offence may impact other people in the victims’ lives. It may have ripple effects on families, community and society. It can lead victims to close themselves off from their families: at para. 41.

105Martin J. suggested that one way to identify the distinct harms at play is to differentiate between “contact-driven luring, where the offender’s goal is to facilitate in-person sexual abuse, and luring that leads to sexual abuse entirely online” as occurs in relation to child pornography: at para. 43. One is not necessarily more serious than the other, however. The severity of the harm caused by the online communication will depend on the individual offender and his offending goals, the characteristics of the victim, and the unique dynamic between the offender and the victim: at para. 44.

106The court noted that in practice, since the offence is committed by way of communication, it will often involve adolescent victims. It reiterated at para. 85 its caution in Friesen “that courts must ‘be particularly careful to impose proportionate sentences in cases where the victim is an adolescent’ because disproportionately low sentences have historically been imposed in these cases”.

107At paras. 71-87, the court comprehensively discussed the “significant factors to determine a fit sentence”, including a non-exhaustive list of the aggravating and mitigating factors “that have particular relevance in the context of luring”.

108The mitigating factors include: a) whether the offender pleaded guilty; b) whether the offender has expressed genuine remorse or gained insight into the offence; c) whether the offender has undertaken rehabilitative steps such as counselling or treatment; and d) the personal circumstances of the offender. The latter can have a mitigating effect on blameworthiness, e.g., his age at the time of the events, a stable family life, stable employment, overcoming a substance use disorder, any mental disability or substance abuse disorder that imposes serious cognitive limitations such that moral culpability is reduced.

109The aggravating factors include: a) grooming; b) the character of the communication, including graphic sexual content, manipulation (such as by lies and trickery), and encouraging a child to share images of themselves; c) deceit, such as by using a false name or a platform that erases records of communication; d) abuse of a position or relationship of trust, recognizing that positions of trust fall on a spectrum and a relationship of trust of any kind may facilitate the commission of the offence; and e) the age of the victim, and whether there is a wide gap in age between the offender and victim since this increases moral blameworthiness.

The principles and directives from the Court of Appeal

Luring

110In R. v. M.V., 2023 ONCA 724, the court discussed at length how a sentencing judge should determine a fit sentence for the offence of luring. The court confirmed that the primary sentencing objectives for this offence are deterrence and denunciation. The court cautioned that a proportionate sentence is fashioned having regard not only to these principles and the aggravating and mitigating factors, but also by considering the material sentencing objectives: at paras. 40, 47.

Child pornography offences

111The Court of Appeal for Ontario has also provided guidance about how to assess a fit sentence for child pornography offences.

112In R. v. M.M., 2022 ONCA 441, the court reinforced the message from Friesen, which it said “could not be clearer”. The court held: “[S]entences 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. Those who commit sexual offences against children must understand that carceral sentences will ordinarily follow” (citations omitted).

113In the subsequent case of M.V., however, Paciocco J.A. cautioned the following at para. 92:

Possession of child pornography is always disturbing and dangerous, inviting strong social censure. But some offences are more disturbing and dangerous than others, as are some offenders. It would be contrary to the principles of sentencing to treat every case of possession of child pornography as worthy of the highest range of sentence without regard to the relative seriousness of the offence, and the relative moral fault of the offender.

114The court further noted that the sentencing range for possession of child pornography is “uncertain”: M.V., at para. 94.

115In a pre-Friesen case, R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, the court noted that it had “repeatedly stated that denunciation and general deterrence are the primary principles of sentencing for offences involving child pornography”: at para. 16. It also held that a longer sentence was appropriate for the offence of making child pornography available, such as with peer-to-peer file sharing platforms, since in those cases, the offender contributed to the further victimization of the children depicted: at para. 27.

116In R. v. Walker, 2021 ONCA 863, 177 W.C.B. (2d) 134, the court rejected the offender’s argument that his sentence should be reduced because the size of the collection of materials in his possession as compared to the materials held by other defendants, was less. The court held the following at para. 8: “Sentencing for child pornography offences is not done by means of a strict mathematical formula tied solely to the quantity of pornographic materials without regard to other factors. Such an approach overlooks the importance of the content of the materials and other relevant considerations”. The court saw no error in the trial judge’s focus on the “egregiousness” of the materials in the appellant’s possession as a significant factor in her sentencing decision.

The availability of a conditional sentence

117A conditional sentence may be imposed where: 1) the appropriate sentence is of less than two years custody; 2) the offender does not pose a risk to the safety of the community; and 3) the principles of sentencing at issue may be satisfied by the imposition of a conditional sentence: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61.

118In R. v. Ali, 2022 ONCA 736, 164 O.R. (3d) 81, a case involving a violent offence, the Court of Appeal for Ontario reiterated that “[e]ven in cases where deterrence and denunciation are paramount sentencing objectives, a conditional sentence may be appropriate”: at para. 31, citing R. v. Sharma, 2022 SCC 39, at para. 171. In considering whether a conditional sentence is appropriate, it is important for judges to consider the restraint principle, which “requires a sentencing judge to consider all sanctions apart from incarceration, especially for first offenders”: at para. 40; R. v. Faroughi, 2024 ONCA 178, at paras. 69-71. Trial judges must determine whether a custodial sentence or one served in the community would better serve all of the relevant sentencing objectives at play, which may also include the offender’s rehabilitation: at para. 28.

119The Court of Appeal for Ontario in M.M. was clear, however, that a conditional sentence for a sexual offence against a child “will only rarely be appropriate” where an offender has committed an offence related to child pornography. Further, the court has said that “[t]heir availability must be limited to exceptional circumstances that render incarceration inappropriate”: M.M., at para. 16. While the court declined to enumerate what might constitute “exceptional circumstances”, it provided the example of a case involving an offender with a medical hardship that could not be adequately addressed within a correctional facility.

120Even so, Paciocco J.A. observed in M.V. (without reference to M.M.) that conditional sentences for possession of child pornography were “not uncommon” in the Ontario Court of Justice where summary prosecutions were more common: see paras. 96-97. The cases cited in support of this observation were all decided after Friesen.

121With respect to the offence of luring, the Court of Appeal for Ontario has also directed that the sentencing objectives of denunciation and deterrence require a sentence of incarceration in most cases, and that a conditional sentence will only be appropriate in the “rarest of cases”: R. v. Rafiq, 2015 ONCA 768, 342 O.A.C. 193, at para. 27, citing R. v. Folino (2005), 2005 CanLII 40543 (ON CA), 77 O.R. (3d) 641 (C.A.).

122In Rafiq, the 24-year-old offender had repeatedly communicated with and encouraged the 12-year-old victim to send nude photographs of herself. The offender engaged in explicitly sexual conversations with the victim and directed her in how to pose for the photographs. He pleaded guilty to one count of luring and received a conditional sentence. On appeal, the court said that it acknowledged the sentencing judge’s “appropriate concern for the rehabilitation of a naïve and immature offender”, but a conditional sentence was nevertheless unfit. It stated at para. 52 that “despite the [offender’s] youth, remorse, prospects for rehabilitation and absence of threat to society … a custodial sentence is required to denounce his conduct and make it clear to those who would use the Internet to abuse young children that such conduct has serious punitive consequences”. It substituted a sentence of two years less a day.

123More recently, in Faroughi, the Court of Appeal for Ontario imposed a conditional sentence for a luring offence committed by a youthful first offender and reiterated that conditional sentences can be appropriate in circumstances where denunciation and deterrence are the predominant sentencing objectives: see para. 73.

The maximum sentences and range of sentence

124In considering the appropriate sentence, it is useful to identify the maximum sentence for an offence. The maximum sentences for the offender’s offences are as follows: two years (s. 362(1)(a) [obtaining by false pretences]), five years (s. 162.1 [publishing an intimate image without consent]), ten years (s. 163.1(4) [possession of child pornography], s. 430(5) [mischief to data]), and 14 years (s. 163.1(3) [transmitting child pornography], s. 172.1(1)(a) [luring a child]). These maximum sentences show what offences are, in Parliament’s view, the most serious.

125Fixing an appropriate sentence within the maximum sentence requires a judge to consider what sentences have been imposed in similar cases involving the same offence. The cases of most assistance in determining a fit sentence will involve not only similar conduct, but offenders with similar circumstances.

126Considering a sentencing range is important because it anchors the determination of a fit sentence. As stated in M.V., “Sentencing ranges … anchor the scale or proportionality of sentences in pursuit of the central principle of justice that like cases should be treated alike”: at para. 51. Accordingly, “a sentencing judge should set out to anchor their decision in the ranges exhibited by related cases, as affected by the directions of binding authority such as Friesen”: M.V., at para. 52.

127Both parties have cited cases with a view to showing the sentences imposed for similar offences. This has been a challenge since the overall circumstances of these offences finds no parallel in the reported case law.

Cases relied upon by the Crown

128The Crown has referred me to the following cases: R. v. Bergsma, (November 3, 2022), Kitchener (Ont. C.J.) an unreported decision of Borghesan J.; R. v. Coban, 2022 BCSC 1810; R. v. Dhanna, (June 4, 2020), Bradford, 19-1349 and 20-38102083 (Ont. C.J.) an unreported decision of Applegate J.; and R. v. Sinclair, 2022 MBCA. While I have reviewed and considered these cases, I will not further describe them here. In my view, their circumstances are so different from this case that they offer very little assistance in determining the appropriate range of sentence.

Cases relied upon by the defence

129Many of the defence cases are also of limited utility in assessing an appropriate sentence because the facts are so different from these offences. The defence relies upon the following cases.

130R. v. McCaw, 2023 ONCA 8, 165 OR (3d) 179: In this case the offender was sentenced for his third child pornography offence. The Court of Appeal for Ontario discussed principles relating to conditional sentences which I have already outlined. The defence suggests that it was the offender’s risk which made a conditional sentence inappropriate in this case, a factor it says is not present here.

131R. v. Sharma, 2023 ONSC 6064: In this case, the offender had been in a consensual sexual relationship with the victim. He told the victim that he would send videos of their sexual activity to her husband and his family to try to persuade her to resume a relationship with him. He sent one video to her husband as well as a photo. He was sentenced to five months imprisonment.

132R. v. Adubofuor, 2023 ONCJ 477: This case involved an offender who sent an intimate image without consent. The offender had been in a relationship with the victim. He sent a video of the victim performing a sexual act upon him to her new boyfriend. He also scratched her vehicle. The victim had been unaware that the video was taken. The court concluded that a conditional sentence was not appropriate for the first time 31-year-old offender and imposed a sentence of four months custody with two years probation.

133R. v. Harroff, 2024 BCSC 318: The 18-year-old offender in this case took a video of a 13-year-old girl being sexually assaulted, which event was witnessed by a group. The offender sent the video to three or four other people in the group. At the time, he was unaware of the victim’s age. The people who received the video shared it with others, including on social media. The offender pleaded guilty and had no prior record. The court found that a conditional sentence would not be consistent with the principles of sentencing. A sentence of eight months imprisonment and 18 months probation was imposed.

134R. v. Boucetta, 2024 ONSC 1046: This case involved an offender who recorded himself engaging in sexual intercourse with the intoxicated victim. The video was 11 seconds long. The victim was not aware she was being recorded and did not consent to that. Nor did she consent to the video being shared with anyone. The offender sent the video to others using Snapchat. As a result of the offence, which took place on a university campus, the victim lived in constant fear not knowing if someone had seen the video the offender had distributed. The offence had a huge impact on her mental health. The offender was 19 at the time of the offence with no record. He had pleaded guilty and expressed remorse for his conduct. He reported being slightly drunk and spontaneously making the decision to film himself while having sex and to share the footage with his peer group. The maximum sentence for the offender’s offences was five years. The court imposed a conditional sentence of two years less a day.

135In additional submissions, the defence has also relied on Faroughi. In that case, the accused was found guilty after a trial of luring (for the purpose of facilitating the offence of invitation to sexual touching) and one count of communicating for the purpose of obtaining for consideration the sexual services of a person under the age of 18. The offender had responded to an advertisement and expressed interest in the sexual services of an escort. While his communications online turned out to be with a police officer, he had believed he was engaging with a 14-year-old and negotiated sexual services for a price. The accused was a first-time 19-year-old offender at the time of the offence. He had expressed genuine remorse, proactively engaged in sex offence therapy, completed his engineering degree and volunteered hundreds of hours for charity. He had recently experienced significant health issues and a jail sentence would exact a severe cost on him given the therapy he required.

136Counsel also relied upon R. v. C.B., 2024 ONCA 160. In that case, the 18-year-old first offender had pleaded guilty to one count each of making child pornography, distributing child pornography and voyeurism. The offences took place at her home, where her mother ran a daycare. She and her “internet boyfriend” instructed a five-year-old child to remove his clothing. C.B. took photos and sent them to her boyfriend. She directed the child so the pictures could be taken. Additional images, including of another child, were found on the offender’s phone when she was arrested. The offender’s boyfriend was arrested on these charges in the United States and faced a significant sentence. The offender had been abused as a very young child and had significant mental health issues. She accepted responsibility for her actions. The trial judge imposed an 18-month sentence. In upholding the sentence, the Court of Appeal for Ontario noted that this was a significant sentence for someone of the offender’s age. The court reiterated that Friesen recognizes that sentencing judges retain discretion to consider factors mitigating moral culpability and to accord significant weight to other sentencing objectives, including rehabilitation.

Additional cases

137Since the sentencing analysis I must undertake involves assessing an appropriate sentence for each of the counts before me, it is helpful to consider cases involving the commission of similar offences even where the overall circumstances are less aggravating. The following cases offer assistance in determining a range of sentence for various aspects of the offender’s conduct.

Child pornography offences: transmitting and possessing child pornography

138R. v. Shokouh, 2023 ONSC 220: This offender was 19 years old at the time of the offences, and a university student. He was found guilty after a trial of accessing child pornography, possessing child pornography, and transmitting, making available or distributing it. On three occasions in a one-month period, he participated in Kik Messenger chats involving an unknown number of other participants and uploaded nine images of child pornography (some of which were duplicates) to other participants in the group. The images were primarily of nude young girls in sexual poses with vaginas exposed, though explicit sexual activity with adults was also depicted, as well as bondage. There were seven images (three of which were unique) and three videos found on his electronic devices. The trial judge found as an aggravating fact that the offender had “sought out these types of videos and images, offering to share his materials in an effort to obtain such materials from others”: at para. 23.

139At the time of the offences, the offender was living with his parents and younger brother. He had been raised in a stable home and had supportive family. He had no criminal record. He engaged in counselling and psychotherapy and underwent a sexual behaviour risk assessment that concluded he was a low risk for committing a further child pornography offence and a very low risk for committing contact sexual offences against children. The offender expressed remorse and expressed disgust at his behaviour. The court accepted he had no intention of engaging in any “hands-on” sexual offence. The defence noted that the offender was not part of an online community devoted to child pornography. He had only participated in the Kik Messenger chats on three occasions over a one-month period. He was sentenced by Monahan J. (as he then was) to a term of imprisonment of 12 months and three years probation.

140While this case does not involve the breadth and number of offences before me, it is the closest in the similarities to the circumstances of the offender and reflects another offender who “sought out these types of videos and images, offering to share his materials in an effort to obtain such materials from others” on the Kik Messenger app.

Luring

141There is some consensus in the case law that “[i]n most cases proceeding by indictment, the appropriate range will be from 12 to 24 months”: R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, at para. 177; and M.V., at para. 75. This range has also been endorsed most recently by the Supreme Court of Canada in Bertrand Marchand at para. 70 (but see also M.V., at para. 74).

142The court in Bertrand Marchand also acknowledged that the range of conduct the offence of luring captures is “staggering”: at para. 143. It could include a single communication, or years’ worth of contact. By definition, it is committed for the purpose of facilitating another offence, but the nature of that secondary offence is very broad. The secondary offences include those involving sexual exploitation, prostitution, human trafficking, and child pornography, amongst others. Similarly, the court in M.V. (released the same day as Bertrand Marchand) held at para. 84 that the offence can be committed “by a wide range of offenders in varied situations, some of which may not deserve elevated levels of punishment”. The court cautioned that “[t]he sentencing range that is established [for the offence of luring] must not be narrow and must not have a harsh lower end.”

143For the case before me, the principle of parity is best served by considering cases where, as here, the luring offence was committed for the purpose of facilitating the commission of a child pornography offence. This is particularly so where, as here, the offence was committed by a youthful offender and the victim was close in age.

144In R. v. Ditoro, 2021 ONCJ 540, the offender was 18 years old at the time of the offence. He pleaded guilty to one count of luring. The victim of the offence was a 14-year-old boy, and thus “close in age”: at para. 68. The offender had begun communicating with him on Instagram and the communication moved to Snapchat. Posing as a fictional friend of the offender, and thus “catfishing the victim”, the offender asked for an intimate photo and tried to induce the victim by saying he would receive something in return. A single message was sent. The victim did not send any photographs, and the offence was reported to police. The offender had an abusive childhood. He had attempted suicide. He was prepared to attend counselling and had already attended 22 counselling sessions. He was highly motivated to address his risk factors and was found to have taken “proactive steps towards rehabilitation while on bail release”. His bail conditions were restrictive, but not overly punitive, and the offender had complied with them. The court declined to impose a conditional sentence, since it would be fundamentally inconsistent with the principles of sentencing. The mandatory minimum punishment of six months in custody was imposed, followed by 18 months probation. The court found the mandatory minimum sentence, which I acknowledge is no longer in effect, was harsh, but not “so excessive to outrage standards of decency”.

145R. v. Mackie, 2013 ABPC 116: The offender in this case pleaded guilty to 39 charges committed over a five-year time span, including luring for the purpose of committing a child pornography offence and distribution of child pornography, and mischief to data. He contacted more than 21 boys and girls between the ages of 11 and 16 on social networking sites on the internet and communicated with them. He was successful in getting some of the children to send him nude photos. He posted four child pornography photos online. He also committed other offences, including extortion, identity fraud, making child pornography, and invitation to sexual touching.

146The offending occurred when the offender was 21 to 26 years old. He had no prior record, and acknowledged his conduct was morally reprehensible and was apologetic. He admitted he targeted girls from age 13 or older and had done so for four years. He was diagnosed with a paraphilia and was a moderate to high risk to reoffend. While the global sentence imposed was 11 years, for the offence of distribution of child pornography, the court imposed a one-year sentence. The mischief to data offence received a one-year concurrent sentence. The sentences were upheld on appeal: see R. v. Mackie, 2014 ABCA 221.

Mischief to data and publishing intimate image without consent

147I note that the case I have just reviewed, Mackie, includes a sentence for mischief to data. R. v. Weedon, 2023 ONCJ 317, is another case where the court imposed a sentence for a mischief to data offence in circumstances with some similarity to the offence before me, including that there was an accompanying offence of publishing an intimate image without consent.

148In Weedon, the offender was found guilty after trial of making available intimate images without consent, mischief by altering computer passwords, and criminal harassment. He had accessed his ex-girlfriend’s Snapchat account, changed her password and posted nude images and videos to her Snapchat, all while communicating with her by text in a harassing manner. The victim acted quickly to stop the posting, but the pictures and videos were available for some time over a single day, and some of her friends had seen them.

149The offender was 34 years old with no criminal record. He self-identified as Métis. He did not express remorse for his actions and accepted no responsibility for his offence. The Crown and defence agreed that the appropriate range of sentence was a reformatory period of incarceration. The court found that the harm here, unlike in other cases, did not go on for months, or even days. While there was planning involved in hacking the account, the posting itself was impulsive. The harm caused was severe. The images were available to be saved by anyone who had access to them in the time they were up. The court determined that the “lowest possible sentence” that could be imposed that achieved all the sentencing objectives was 12 months jail and three years probation.

The positions of the parties

The Crown

150The Crown emphasizes that the offender’s conduct arose out of his participation in an online group engaged in similar behaviour, where the members of the group traded images amongst themselves. The Crown characterizes this online group as “a closed group targeted to this objective”. The Crown submits that the offender’s conduct was degrading, and took away each victim’s power, control and dignity. The sharing of their images, without their knowledge or consent, goes to the core of their autonomy and integrity. Counsel reports that the victims are attuned to the harm that the offences could continue to cause them, and that they will never know what images are “out there”.

151The Crown emphasizes the direction in Friesen that sentences for sexual offences involving children must increase. She highlights that in the cases relied upon by the defence, the offender had not committed his offences as part of a “nefarious network”. She submits the aggravating factors here include: the number of victims, many of whom were under 18 when their images were taken; the high level of deceit by the offender who hacked into one account and used false pretences to obtain images; that the offences continued for a protracted period of time and cannot be characterized as a momentary lapse in judgment; the negative impact these offences have had on the lives and confidence of these promising young women, as well as on their friends and family; the fact that some of the victims knew the offender, which has produced “another layer of trauma” from the offences; and most aggravating of all, that the offender shared and traded the images of the victims as though they were currency.

152The Crown submits that in all the circumstances, and allowing for meaningful weight for the mitigating circumstances, the global sentence should be five years in custody. Anything less would not significantly reflect the principles of denunciation and deterrence, or be proportionate to the harm caused.

The defence

153The defence acknowledges the seriousness of the offender’s conduct and that the fears experienced by the victims are justified. The defence characterizes at least some of the offender’s conduct as “catfishing” and emphasizes that there is no evidence that the offender extorted anyone. There is only evidence that he hacked one account. Counsel submits that the offender’s methods were hardly sophisticated, since the evidence included an email transfer he sent from his own email account. Counsel emphasizes that the offender has compelling personal circumstances: he is a young man who is committed to post-secondary education. He very quickly started counselling after his arrest, and his risk has to be viewed as low given the insight he has developed about his conduct and his commitment to ongoing counseling. He has followed his bail conditions for three years. He pleaded guilty and that plea was indicated as soon as Crown disclosure had been completed. No victim has had to testify in this case.

154Counsel submits that the cases relied upon by the Crown involve many aggravating factors that are not present in this case. This is not a “typical” case involving child pornography as there are no images of young children – the adolescent victims were between 15 and 18 years old. The nature of the images, unlike in many of the Crown cases, are not at the top of the scale of depravity. Counsel acknowledges that the offender was part of a group that groomed and lured young women and shared images of them, some of which were obtained by extortion. Becoming involved in this group was the offender’s downfall.

155The defence emphasizes the offender’s age, his guilty plea and his significant progress towards rehabilitation and argues these are exceptional circumstances that warrant the imposition of a conditional sentence of two years less a day, followed by a lengthy probation order. Counsel also suggests some credit could be given for the offender’s time on bail because the offender put his studies and job on hold in order to ensure he complied with his bail conditions. He relies on recent cases from the Court of Appeal which demonstrate that the principle of restraint must be given effect and that a conditional sentence may be appropriate, particularly for a youthful first offender, even in sexual offences involving children.

156As for the ancillary orders sought by the Crown, the defence does not take issue with them. Counsel submits, however that both the SOIRA and s. 161 orders should be for a period of ten years given the offender’s age and the absence of any concerns he suffers from pedophilia.

Analysis

157In determining a proportionate sentence, I commence with identification of the aggravating and mitigating factors in this case.

158As noted in M.V., at para. 46, the aggravating factors are “those that increase the gravity of the offence relative to other offences of the same kind, or that increase the degree of responsibility of the offender, relative to other offenders committing the same kind of offence.” Mitigating factors, on the other hand, are “those that reduce the gravity of the offence relative to other offences of the same kind, or that move the degree of responsibility of the offender downwards relative to other offenders committing the same kind of offence.”

The aggravating factors

159In assessing the aggravating factors, I am mindful that I must not rely on circumstances that relate to one type of charge to increase the sentence on another: M.V., at para. 37. I must also guard against considering circumstances which are inherent in the elements of an offence: M.V., at para. 49. Nor may I use “considerations that apply to all offences of the type being sentenced as a basis for pushing a particular offence up the sentencing range”. Further, aggravating factors must relate “to the offence being sentenced”: M.V., at para. 49.

160In order to give effect to these directions, I find it helpful to break down the applicable aggravating factors as follows.

161In respect of the offences globally, I consider the following aggravating factors:

a. The offender was part of a group whose modus operandi was to share intimate images of girls and women obtained by false pretences and by means of extortion. This is aggravating for the following several reasons:

i. The group exchanged intimate and private images as though they were currency. The group’s very existence is based on misogyny and profoundly destructive attitudes about girls and women. Its criminal offending is fuelled by these attitudes, which are incompatible with the autonomy, dignity, and equality of girls and women. These attitudes, which were promoted by the offender with his conduct, must be condemned.

Friesen directed at para. 89, “Courts must give proper weight in sentencing to the offender’s underlying attitudes because they are highly relevant to assessing the offender’s moral blameworthiness and to the sentencing objectives of denunciation”. It commented on the issue again at para. 180 where it said “judges should be attentive to evidence of an offender’s misogynistic attitudes. Such attitudes may have a significant bearing on, among other factors, moral blameworthiness, insight and likelihood to reoffend” (see also para. 176);

ii. The offender’s participation in this group means he has fuelled a market for the criminal dissemination of these most private images. The images are now irretrievably a part of that market; and

iii. The offender’s participation in this group fuelled similar criminal offending by others. His criminal conduct benefitted others in this group because he sent them images, and he in turn benefitted from their conduct since he received images which had been obtained, in some cases, by extortion and threatening. That the offender benefitted from the group’s activity is clear since he had images of each of Complainant Z, Complainant A, Complainant B, Complainant C, Complainant D, Complainant E, and Complainant H on his phone, without having also hacked into their accounts or engaged with these victims directly. While there is no evidence before me that the offender extorted or threatened any of the victims himself, some of the images he obtained from his online group were obtained through those means. Complainant C was threatened that if she did not send further images to the person harassing her, images of her would be sent to other people. Complainant G received a message through Facebook from someone threatening to send her images to family if she didn’t send more;

b. The offender engaged in his criminal offending for a period of two years. His offences were not spontaneous, nor were they limited to a brief period of time;

c. That there are 12 victims is highly aggravating;

d. The offender knew some of the victims. It is hard to imagine that the offender had images of Complainant D, Complainant A and Complainant H simply by random coincidence when he knew them or was part of a mutual group of friends. Similarly, there is an inference to be had that the offender deliberately targeted Sydney when he hacked into her Snapchat account, since it appears they shared a common group of peers and Sydney, for her part, knew who the offender was. Proof of aggravating factors requires proof beyond a reasonable doubt, however, and I proceed on the basis that that standard is not met in proving that the offender deliberately targeted these victims. However, what has been proved, and what I do consider, is that for some of the victims, their connection to the offender has had an additional impact. Complainant D, in particular, has experienced a terrible breach of trust given her long history of friendship with the offender who had been her friend since [grade level omitted to protect the complainant’s identity];

e. The accused engaged in deceit in obtaining intimate images. For instance, Complainant G and the offender had gone to school together. He engaged with her online without revealing his true identity in order to obtain her images. While Complainant G had no idea she was sending these images to the offender, he knew precisely whose privacy he was violating when he fraudulently promised her money in exchange for her images, and then published them without her consent; and

f. Victim impact: the harm caused by the offender is significant and long-lasting. It continues even now. There is evidence of actual harm to most of his victims. I have already summarized their individual statements about that harm and will not describe it further now. The extent of the harm caused by the offender is a very significant aggravating factor.

162The aggravating factors specific to the offence of luring include as follows:

a. While the precise timeline for how long these communications lasted with each victim is not in evidence, I am satisfied the offences involved repeated communications with each of them; and

b. In his communications with the victims, the offender encouraged the creation of child pornography. He told 15-year-old Complainant X to pose and take nude images and she did, taking both photos and videos. He talked to 17-year-old Complainant Y about doing “sessions” for money. While it is not clear from the agreed statement of facts that the images Complainant Y sent the offender were created as a result of that conversation, it is clear that he tried to get her to create new images. The offender thus encouraged the creation of child pornography for the purpose of possessing and then distributing the images to his online group. The exploitation of a victim to produce “made-to-order” child pornography is a significant aggravating factor: Rafiq, at para. 32.

163The aggravating factors specific to the offence of possession of child pornography include as follows:

a. The number of images and videos possessed by the offender was not a “small” number: e.g., Walker, at para. 54. There were 26 images and 52 videos of Complainant X. There were ten images and seven videos of Complainant Y. There were also images of each of Complainant B and Complainant Z, though the facts for the plea do not state how many or otherwise describe their contents; and

b. The content of the images went beyond nude images or written material and included videos depicting explicit sexual activity involving each of Complainant X and Complainant Y.

164The aggravating factor specific to the offence of transmitting child pornography is as follows:

a. In transmitting the images, the offender shared them with an online group devoted to this type of activity, with all the repercussions I have already described.

165The aggravating factors specific to the offence of mischief to data are as follows:

a. The offence of mischief to data can be committed for any number of reasons, including to commit a financial crime. A hack for the purpose of obtaining another person’s intimate images has to be considered highly aggravating, given how violative this type of hack is to a person’s privacy and dignity; and

b. The hack in this case was a pre-condition for the harm subsequently experienced by Sydney. But for the offender’s hacking of Sydney’s account, she would not have been blackmailed for further images. Even if the offender was not the person blackmailing her, the tremendous harm and harassment she has suffered, and continues to suffer, would not have occurred but for the fact that he hacked into her account.

166The aggravating factor relating to the offence of publishing intimate images without consent [cts. 25 and 36] is as follows:

a. The offender shared intimate images of each of Sydney and Complainant G with a group whose modus operandi included extortion and threatening conduct and Sydney has been affected by this type of blackmail from total strangers who have been able to contact her. The offender’s conduct is significantly different than offenders who shared the images with a limited number of people.

167The aggravating factors for the false pretences offences are as follows:

a. This offence can be committed to obtain all manner of property. That the offender committed it to obtain the most sensitive and private of images for the purpose of trading them with others is aggravating; and

b. The offender further directed one of the victims about the nature of the photos to be taken. He did this with Complainant F, who was pushed to include her face in the images but declined to do so. Complainant F had never taken images like this before. The offender did not just obtain existing images by false pretences, but he also solicited their creation.

The mitigating factors

168There are important and weighty mitigating factors in this case. They include the following:

a. The offender’s guilty plea is a very important mitigating factor which deserves material weight. I accept that it was indicated once disclosure was complete, and thus at an early stage. It has spared the 12 victims from having to testify and relive these events in the courtroom during a trial. It has spared the court considerable resources as I expect a trial would have taken some time to complete;

b. The offender was only 18-20 years old when he committed the offences. His relative immaturity as an adult is important in assessing his moral blameworthiness. As I have explained, this important consideration also requires the application of the principle of restraint;

c. The offender has no prior criminal record;

d. The offender has expressed remorse, both by way of his plea, and in expressly apologizing to his victims in his comments before the court. I have already indicated that I accept his remorse is sincere;

e. The offender had made significant efforts towards his rehabilitation. This is also evidence of his remorse. These efforts have also assisted him in having insight into his behaviour. He has engaged in counselling consistently for the past three years and appears to be responsive to it. He is committed to his ongoing rehabilitation and has very strong rehabilitative potential. I am satisfied that his change in attitude about his conduct, as expressed in the PSR and before me, has reduced his likelihood of further offending;

f. The offender has strong family support. His parents remain very involved in his life and are committed to supporting him going forward. This will assist him in his rehabilitation; and

g. The offender has complied with his bail conditions for over three years.

Other considerations in situating this offence in the range of sentence

169I agree with the defence that this case does not involve other aggravating factors sometimes seen in the case law, and in some of the cases relied upon by the Crown in this hearing. For instance, the child pornography offences do not involve infants or young children, but teenagers between 15 and 18 years old. The defence suggests, and I agree, that this does not mitigate the offences, but it is the absence of an important aggravating factor.

170Similarly, this is also not a case where the offender’s luring offences were committed against a young child, or in aid of a sexual assault: see e.g. M.V., at para. 60. Nor is there evidence that the offender himself engaged in extortion or a sustained campaign of harassment against any of the victims. The absence of these aggravating factors distinguishes this case from many of the cases relied upon by the Crown.

171The defence has also emphasized that there is no reason to conclude that the offender was motivated by a sexual disorder, such as pedophilia, when he committed his offences. Counsel argues he is unlike the offenders in some of the cases, who present a risk to reoffend because they have been diagnosed with a paraphilia.

172I agree with the defence that this specific dynamic is not present in this case. However, as was noted by Trotter J.A. in R. v. McSween, 2020 ONCA 343, at para. 106, leave to appeal refused, 2020 CarswellOnt 18370, while “[s]exual gratification may well be the predominant goal of someone who attempts to facilitate the transmission of child pornography … it is not the only potential motive. Others might include blackmail, extortion, bullying, or financial gain.” The absence of a pedophilia diagnosis for this offender does not mitigate the harm he has caused or eliminate any potential risk to reoffend.

173However, in this instance, the offender’s risk to reoffend appears low. He has insight into his behaviour and is open to ongoing counselling. He has been on bail for three years without incident and there is no evidence he has continued with any of the type of conduct for which he is being sentenced.

The offender’s time on bail

174As for the offender’s time on bail, I am not satisfied that it should lead to credit towards any jail sentence. The offender was not subject to house arrest or a curfew. His bail conditions did limit his computer use and were somewhat unclear about whether he might communicate with persons under 18, such that the offender chose not to pursue work or school once school returned to in-person attendance. However, no bail variation was sought to clarify his conditions or modify them to permit him to work or to attend school. The conditions were not otherwise unduly restrictive or onerous. I am not inclined to grant credit for Mr. Hannah’s time on bail in all the circumstances.

The objectives of this sentence and the principles to be applied

175It is an objective of this sentence to denounce Mr. Hannah’s conduct and the harm he has caused his victims. It is an objective of this sentence to deter anyone else who might commit a similar offence. This sentence must send a strong message to the community that these types of offences will not be tolerated in our society. They will meet with significant penal consequences. For the offences involving children, these objectives are the primary consideration.

176The sentence must also seek to assist in rehabilitating Mr. Hannah. It must promote in him a sense of responsibility and acknowledgement of the harm done to his victims and the community.

177In determining a fit sentence, I have carefully considered the mitigating factors present in this case, particularly that the offender is a youthful first offender and the principle of restraint must be applied. It is clear from recent cases in the Supreme Court of Canada and Court of Appeal for Ontario that this is a very important circumstance, including in sentencing for sexual offences involving children: see e.g. Bertrand Marchand, at paras. 132, 152; Faroughi, at paras. 71-73, 83. As noted in Bertrand Marchand at para. 132 “[e]ven though an 18-year-old offender falls outside of the scope of the youth criminal justice system, his lack of maturity remains an important consideration”. I have considered that “[i]t is crucial that all other dispositions be explored before imposing custodial sentences on youthful first offenders”: Bertrand Marchand, at para. 132.

178But ultimately, the sentence I impose must be proportionate to the offences.

The gravamen of the offences and the offender’s moral blameworthiness

179The gravamen of Mr. Hannah’s offences is that he participated in an online group whose purpose was to illegally obtain and share intimate images of girls and women. He did this for two years. In the course of his participation in this group, he lured two adolescent victims and encouraged them to create images that constitute child pornography. He fraudulently promised them money for sending their images. Then, after he had manipulated these two teenagers in this way, he shared those images with other members of his group. In turn, members of his group shared child pornography images they had obtained with him of three other adolescents, one who he knew from high school, and he saved them on his phone.

180In the course of his participation in this group, the offender also hacked into the account of a young adult woman, took possession of her intimate images without her consent, and then distributed them to his group. He did this knowing that members in the group engaged in extortion to obtain further images. The victim of this offence has, as a result of his hacking her account and distribution of her images, experienced extortion and blackmail by others.

181He solicited intimate images directly from two other young women he contacted on social media and obtained them by fraudulently promising to pay for them. He then distributed images of one of these women to his group.

182He received images of four further young women that had been obtained by other members of his online group. Some of these women had been threatened. He had mutual friends with one of these young women. And he had been best friends with another.

183This conduct took place over the span of two years. There was lots of time to stop. There was lots of time to reconsider. But the offences were ongoing throughout that time.

184Individually, the offences are serious. When viewed collectively, their gravity is higher still.

185There is no conclusion to be had on these facts other than the offender’s moral blameworthiness for these offences is staggeringly high, even accounting for his immaturity as a youthful offender.

The fit sentence in all the circumstances

186As I have explained, the sentence I impose must reflect both the seriousness of Mr. Hannah’s offences and his degree of responsibility for them. It must reflect all the objectives and principles I have described. It must be consistent with the range of sentence demonstrated in the case law.

187The sentence proposed by the defence, of two years less a day, would not be fit. A significantly longer jail sentence is required. Given that the appropriate sentence is outside the two-year range, a conditional sentence is not available. In any event, this is clearly one of those cases where the need for denunciation and deterrence is so pressing that incarceration is the only suitable way to express society’s condemnation of the offender’s conduct: see Proulx, at para. 106.

188In determining the length of the sentence, I have followed the approach recommended in Bertrand Marchand and determined the just and appropriate sentence for each offence individually. I have allocated the lowest possible jail sentence to each count to give effect to the principle of restraint. I have then determined whether the sentences should be consecutive or concurrent, having regard to the fact that so many of the offences protect different legal interests and involve different victims, since his offences involving each victim was a distinct event. This results in the following:

189Complainant X

a. luring for the purposes of committing a child pornography offence (ct. 1): 12 months

b. transmitting child pornography (ct. 3): 12 months consecutive to ct. 1

c. obtain nude images by false pretences (ct. 7): 6 months concurrent to ct. 1

190Complainant Y

a. luring for the purposes of committing a child pornography offence (ct. 8): 12 months jail consecutive to ct. 1

b. transmitting child pornography (ct. 10): 12 months consecutive to ct. 8

c. obtain nude images by false pretences (ct. 13): 6 months concurrent to ct. 8

d. possession of child pornography (ct. 11): 6 months concurrent to ct. 8

191Complainant Z

a. possession of child pornography (ct. 30): 4 months consecutive to ct. 1

192Complainant A and Complainant B

a. possession of child pornography (ct. 32): 8 months consecutive to ct. 1

193Sydney Taylor

a. publishing intimate image without consent (ct. 36): 12 months consecutive to ct. 1;

b. mischief to data (ct. 34): 6 months consecutive to ct. 36

194Complainant G

a. publishing intimate image without consent (ct. 25): 12 months consecutive to ct. 1

b. obtain nude images by false pretences (ct. 24): 3 months consecutive to ct. 1

195Complainant F

a. obtain nude images by false pretences (ct. 22): 3 months consecutive to ct. 1.

196This results in a sentence of 5 years for the offences involving the adolescent victims, and 3 years for the offences involving the adult victims. The sentences total 8 years. However, I am satisfied they must be reduced to reflect the totality principle.

Conclusion

197In the result, I am satisfied that a fit global sentence for Mr. Hannah is 5 years in custody. This will be apportioned to reflect sentences totalling 3 years in respect of the offences involving the adolescent victims, and 2 years consecutive jail time for the offences involving the adult victims. The sentence will be apportioned as follows to reflect the totality principle:

198Complainant X

a. luring for the purposes of committing a child pornography offence (ct. 1): 12 months

b. transmitting child pornography (ct. 3): 12 months consecutive to ct. 1

c. obtain nude images by false pretences (ct. 7): 6 months concurrent to ct. 1

199Complainant Y

a. luring for the purposes of committing a child pornography offence (ct. 8): 12 months jail concurrent to ct. 1

b. transmitting child pornography (ct. 10): 12 months consecutive to ct. 8, and concurrent to ct. 1;

c. obtain nude images by false pretences (ct. 13): 6 months concurrent to ct. 8

d. possession of child pornography (ct. 11): 6 months concurrent to ct. 8

200Complainant Z

a. possession of child pornography (ct. 30): 4 months consecutive to ct. 1

201Complainant A and Complainant B

a. possession of child pornography (ct. 32): 8 months consecutive to ct. 1

202Sydney Taylor

a. publishing intimate image without consent (ct. 36): 12 months consecutive to ct. 1

b. mischief to data (ct. 34): 6 months consecutive to ct. 1

203Complainant G

a. publishing intimate image without consent (ct. 25): 12 months concurrent to ct. 1

b. obtain nude images by false pretences (ct. 24): 3 months consecutive to ct. 1

204Complainant F

a. obtain nude images by false pretences (ct. 22): 3 months consecutive to ct. 1.

205In addition, the following ancillary orders are made:

a. DNA;

b. a SOIRA order for 10 years;

c. section 743.21 – non-communication with the victims while the offender is in custody;

d. section 161 order for 10 years.

Madame Justice Laurie Lacelle

Released: April 26, 2024

COURT FILE NO.: CR-23-14

DATE: 2024/04/26

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

Christopher Hannah

Accused

REASONS FOR sentence

Lacelle J.

Released: April 26, 2024

1At her request, Ms. Taylor is not included in the publication ban.