Court File and Parties

COURT FILE NO.: CR 23-27 DATE: 2024 05 24

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Enoch Guimond, for the Crown

– and –

M.C. Adam Steven Boni, for the Defendant

HEARD: March 11, 2024

Restriction on Publication

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

Reasons for Sentencing

Tzimas J.

Introduction

[1] On November 29, 2023, M.C. was found guilty of one charge of accessing one child pornography image on June 30, 2018 while in Paris, France, contrary to section 163.1(4.1) of the Criminal Code, R.S.C., 1985, c. C-46. The finding followed a nolo contendere hearing, where in a Formal Admission of Facts, made pursuant to s. 655 of the Criminal Code, M.C. admitted to specific instances when he accessed child pornography images that were either streamed or screenshared in a Zoom chat room.

[2] Sentencing submissions were heard on March 11, 2024. The Crown proposed a custodial sentence of 18 months, followed by 18 months probation. Counsel also sought the following ancillary orders: a DNA order, a s.110 order for five years, a SOIRA for 20 years, and a s.161 order for 10 years.

[3] The Defence proposed a conditional sentence of 18 months, followed by 18 months probation. With respect to the ancillary orders, the Defence questioned the requirement of a s.161 order.

[4] For the reasons that follow, M.C.’s cumulative circumstances underlying his offence are exceptional and render a carceral term highly problematic. In the result I sentence M.C. to a conditional sentence of 18 months, to be followed by 18 months probation and ancillary orders in accordance with the terms and conditions outlined at the conclusion of this decision.

Facts of the Offence

[5] M.C. is a Canadian citizen who was living in Paris, France from 2012 to 2018. M.C. admitted that on three occasions in 2015, a fourth occasion in 2017, and a fifth occasion in 2018, undercover police officers from Toronto Police Service and the United States Department of Homeland Security in Phoenix, Arizona, observed him to be present in online Zoom video conferences where child pornography images were screenshared. The images involved young pre-pubescent boys who were being sexually exploited and assaulted by adult males. One of the images depicted an infant of less than six months of age, although the Crown withdrew the charge associated with it.

[6] M.C. returned to Canada on July 10, 2018, for what was intended to be a short visit to purchase clothing for the vintage clothing business he was operating in Paris. He was arrested on arrival at Pearson Airport and charged with several counts of accessing child pornography images, as well as possession and importing of child pornography.

[7] In his statement to the Peel Regional Police on July 11, 2018, M.C. immediately admitted that while he was living in France, he attended online Zoom conferences where child pornography was streamed. He reported that a Zoom attendance could involve as many as 100 male attendees, many of whom, including M.C., would “masturbate and/or smoke dope openly” while an image was on the screen. M.C. obtained the Zoom room’s address through gay male websites and chatrooms online, such as “Men’s Chat”. He admitted to attending the Zoom conferences because “he was interested in observing other adult males who enjoyed watching child pornography”.

[8] The Crown eventually withdrew all but one charge, (Count 3), against M.C. That charge concerned M.C.’s accessing of one image on June 30, 2018. On that date, M.C. was seen masturbating along with over twenty other participants, while somebody screenshared an image depicting a very young pre-pubescent boy.

Circumstances of the Offender

[9] M.C. is 37 years old. He does not have a prior criminal history. He is a gay man, who was the victim of significant childhood sexual trauma starting at the age of 11 and continuing for several years thereafter in the hands of adult males. From Grade 7 until his arrest, M.C. also contended with very serious drug addictions. Since his arrest he has undergone very extensive counselling and therapy for the sex offences and the childhood trauma.

[10] The court received a psychiatric report and letters of support from M.C.’s parents, his brother and a friend.

[11] The psychiatric report was prepared by Dr. Gojer of The Manasa Clinic. Dr. Gojer reviewed M.C.’s Formal Admission of Facts, interviewed M.C. and M.C.’s father, and had communications with Dr. Monik Kalia, a psychologist who has been counselling M.C., and Mr. Rob Peach, a social worker, with whom, at the time of the sentencing submissions M.C. had already had 72 individual treatment sessions. M.C. continues to see Mr. Peach on a weekly basis.

[12] Dr. Gojer offered the Court a very detailed account of M.C.’s childhood, his education, his sexual and relationship history, his substance abuse, his employment history, and his medical and psychiatric history. He reported that M.C. identifies as a homosexual male who has been attracted to adult males all his life. M.C. reported to Dr. Gojer that he had his first sexual experience at age 11 when he ran away from home for three days. In those three days, he encountered males in their 20s, 30s, and 40s who performed various sexual acts on him. M.C. remembered those events as pleasurable experiences and did not feel abused at the time. With the benefit of hindsight, he understands that the men were adults in a position of authority who should not have engaged in those activities.

[13] Dr. Gojer also reported that starting at age 12, M.C. would participate in “hook-ups” with older men. These activities would involve following older men to washroom stalls, where M.C. would perform fellatio. At the time, M.C. considered the experiences to be “right and natural” and afterwards he felt “excited and wanting to go again”. He came out as gay in grade nine. His relationships with men were casual until he turned 30. M.C. started viewing homosexual adult pornography as a young teenager. He started joining chat rooms when he was 27 years old and continued for the next 4 years.

[14] M.C started smoking marijuana in grade 7. In that same year, when he had his first sexual encounters, he also tried acid. He experimented with ecstasy and cocaine in grade 9 and would use those substances primarily at rave parties. In high school he also experimented with ketamine which he described as “erasing all the post drug effects”. Although he stopped using drugs for a while, at age 17 he started using cocaine again, daily for a period of two years. He continued to use it sporadically until the age of 21 years. At age 27 he started smoking crystal meth and used it regularly until his arrest.

[15] M.C. attended schools in Toronto. Until grade eight everything was fine academically. In grade nine he was expelled for talking back to the teachers and skipping classes. He then went to an Alternative school where he thrived. He completed a two-year Design program at George Brown and from there moved to Los Angeles, where he attended the Fashion Institute of Design and Merchandising and worked for various high-profile celebrities at Red Carpet Events. His drug use in that period of time intensified.

[16] From Los Angeles he moved to Paris, where he worked for different brand companies as a freelance designer and a sales representative. Two and a half years prior to his arrest, he started preparing to open his own shop in Paris. One and a half years prior to his arrest, he opened a vintage shop in a permanent flea market in Paris. He has not been back in Paris since his arrest and effectively lost his business operation there.

[17] Regarding his psychiatric history, M.C. described himself as an “anxious person” with low self-esteem. Regarding the counselling and therapy that M.C. has received since being charged with the child pornography offences, M.C. started seeing Mr. Rob Peach, a social worker in October 2018. Mr. Peach reported to Dr. Gojer that, as of March 2024, M.C. had attended 72 individual treatment sessions and was continuing with his sessions. Through those treatments M.C. has made significant progress in his understanding of his personal vulnerabilities which contributed to his offending behaviours. Through those sessions, he came to understand his own personal history of childhood sexual exploitation, his chronic use of substances for emotional regulation, and how those substances impaired the decisions he was making at the time of his offences.

[18] Dr. Gojer highlighted Mr. Peach’s assessment of M.C.: “Initially, [M] presented with a host of cognitive distortions typically associated with individuals charged with similar offences. However, through his course of treatment, [M] has been increasingly able to identify these thinking errors and, moreover, develop healthier and more pro-social ways of sexual self expression.” Mr. Peach also observed that “[M] does not endorse a sexual interest in minors. He characterizes his accessing of child porn as part of participation in online communities of men who, in the context of active substance use, exchanged illegal sexual material.”

[19] The psychologist, Dr. Kalia, reported that M.C. participated in sex offender counselling in the past, after he was charged. He said he would be willing to continue to see M.C. for therapy.

[20] In his diagnosis, Dr. Gojer concluded that M.C.’s history and charges reflected an “underlying pedophilic interest that is non-exclusive”. Specifically, Dr. Gojer noted that “[M.C.’s] pedophilic interests are complex and on the surface one can see him as having an attraction to underaged males. It is only when one understands the development of his sexuality as a child and his childhood sexual abuse, that one can understand why he had perceived the images/videos of child pornography viewed as erotic experiences. I see him as having a primary sexual interest in males and his pedophilic interests as a product of his childhood sexual abuse.

[21] Speaking specifically about the effects that the extensive counselling and therapy have had on M.C., Dr. Gojer noted:

“… since being charged and through counselling that [M.C.] has had, he has had an opportunity to reflect on his childhood and his adult sexual behaviours. He has now been able to view the sexual activities that occurred in his childhood where in fact him being taken advantage of as he was very young, naïve and seeking attention and approval. What he had over the years perceived as enjoyable and consensual was not. [M.C.] said that he was bright and realized when he became an adult that in reality what had happened to him were sexual activities that were not consensual and that he was being sexually abused. He said that over the years his attitudes towards himself were distorted and had cherished his childhood memories. He added that he carried these distorted views of young boys engaging in sex with adult males to his adulthood. He said that the involvement of males in the chatrooms allowed him to engage in impersonal sexual experiences and when child pornography was introduced into the chats, though he was aware of its illegality, he identified with the victims using distorted logic, told himself that they were, like he was enjoying the sexual experiences. In this manner, he persisted with the chat room communications.”

[22] Dr. Gojer concluded that M.C. accepts that he was a victim of childhood sexual abuse and was working on dealing with this trauma and changing his narrative about his childhood sexual experiences. “He presents as an intelligent man who is likely not going to reoffend and is likely to do well in therapy.”

[23] On the subject of future treatment, Dr. Gojer concluded that M.C. would benefit from individual and group therapy. He identified a group that he runs for sex offenders, administered through probation services, which runs over an 8-week period, and which involves two-hour sessions, twice a week, by Zoom, for a total of 16 sessions. He noted M.C.’s desire to continue to work with Dr. Kalia and endorsed continued sex offender counselling and trauma counselling. He added that “notwithstanding my evaluation of [M.C.] being a low risk, he should not be in the presence of anyone below the age of 16 years unless he is with a responsible adult.”

[24] The letters from M.C.’s parents, his brother and his friend were most supportive of M.C. They acknowledge the heinous nature of M.C.’s offence and speak about their shock, anger, embarrassment, grief and regret, and wish they could have done more to support M.C. They have supported M.C.’s extensive counselling and they developed their own insights into M.C.’s predicament.

[25] Most significantly, a common theme in the family letters touched on the concern that a jail sentence would interrupt M.C.’s significant rehabilitation to date and reverse the extensive progress that he has made since his arrest in 2018. Each family member, in their own way, underscored the significant comfort and encouragement they drew from the degree of M.C.’s remorsefulness and his deep regret for what he did. They committed to doing what they can to continue to support M.C.’s ongoing therapy and counselling. They were also confident that M.C. would never be back before the Court in the future.

[26] Finally, the Court heard from M.C. He expressed his deep remorse and sincere regret for his errors, his circumstances, and the hurt he caused himself and his family. He confirmed his commitment to continue with his counselling and therapy.

Position of the Parties

[27] The Crown sought a custodial sentence of 18 months, probation for 18 months, a DNA order, a s.110 order for five years, a SOIRA for 20 years and a s.161 order for 10 years. Counsel acknowledged that the sentencing range in most cases is broad, ranging from 90 days to 3.5 years. Counsel cited R. v. Kwok, 2007 ONSC 2942, at para. 7, to identify the recognized aggravating and mitigating factors.

[28] With reference to M.C., the Crown identified the following aggravating factors: i. accessing the child images on five occasions, over the course of 5 years; ii. the age of the victims depicted, namely, naked pre-pubescent boys and an infant in one instance; and iii. the nature of the activity, namely, M.C.’s participation in a group such that it magnified the extent of the victimization of children depicted in the videos.

[29] On the mitigating factors, the Crown acknowledged the following factors: i. no previous criminal record; ii. M.C.’s own sexual traumatization as a child; iii. the existence of a very supportive family; iv. M.C.’s extensive counselling and therapy; and v. M.C.’s admission to culpability and his expression of remorse.

[30] Crown counsel suggested that the admission to culpability combined with a nolo contendere hearing meant that the admission was “not particularly mitigating” because the admission was advanced only on the eve of trial.

[31] In contrast to the Crown, the Defence sought a conditional sentence of 18 months, to be followed by 18 months probation and certain of the proposed ancillary orders. The Defence originally intended on bringing an application to challenge the constitutionality of the one-year minimum sentence contemplated by the Criminal Code, for child pornography offences, but given the existing decisions on point, the Crown conceded the application and submissions were necessary.

[32] Both the Crown and the Defence relied on R. v. Friesen, 2020 SCC 9, to support their positions, each placing their emphasis on different aspects of the decision. The Crown highlighted those paragraphs in the decision touching on the requirement that a sentencing Court give “primary consideration to the objectives of denunciation and deterrence for offences involving the abuse of children” and to impose more severe sanctions for sexual offences against children. The Court, at paragraph 133 concluded that “sexual violence against children that is committed on multiple occasions and for longer periods of time should attract significantly higher sentences that reflect the full cumulative gravity of the crime”. In short, the Crown underscored the SCC’s direction to trial judges that sentences for sexual offences involving the victimization of children should generally increase to give effect to the protection of children from exploitation, see paras. 42-47 of Friesen.

[33] The Defence urged the Court to consider the Court’s discussion of the impacts of sexual violence on children and consider the diminished degree of M.C.’s moral blameworthiness in light of the sexual childhood violence he experienced.

[34] In addition to Friesen, the Crown relied on the following cases to support its position on sentencing:

R. v. Rule, 2023 ONCA 31: 70-year old retired school teacher who was charged with the possession of a vast collection of child pornography, consisting of 22,429 images and 204 videos that met the definition of child pornography. There were another 92,984 images which were not categorized by the police. The trial judge concluded that the offender’s medical condition could be treated in a custodial institution. A 22-month sentence was found to be a fit and appropriate sentence.

R. v. Tcheong, 2023 ONCJ 205: The offender pled guilty to one count of possession of child pornography, and specifically to possession 350 images and 14 videos of child pornography, contrary to section 163.1(4)(a) of the Criminal Code. The offender’s circumstances were not exceptional to justify a conditional sentence. He received a sentence of eight months custody, followed by three years probation with counselling, plus a section 161 order, a DNA order and a SOIRA and forfeiture order. The eight months reflected the offender’s guilty plea, his lack of a record, and his up-front counselling (26 sessions to the date of the sentencing). The sentence also took into account the size of the child pornography collection as well as the vile nature of the images. The trial judge considered six cases involving the possession of substantial child pornography collections and the sentences ranged from four months to 24 months custody.

R. v. M.M., 2022 ONCA 441: The offender was 31 years of age at the time of the offence. He was convicted of possessing and making child pornography. The trial judge sentenced the offender to a 15-month conditional sentence, followed by 12 months probation. The Court of Appeal held that trial judge erred with his sentencing of a conditional sentence. Conditional sentences for sexual sentences against children will only rarely be appropriate; their availability ought to be limited to exceptional circumstances that would render incarceration inappropriate. The COA expressly held that it would be inappropriate to enumerate exceptional circumstances but offered “medical hardship that could not adequately be addressed within the correctional facility”, as one example of an exceptional circumstance.

R. v. AM., 2023 ONCJ 181: The offender was 38 years old and convicted of the possession of small collection of child pornography. The trial judge did not find any exceptional circumstances to justify a conditional sentence. Instead, the offender was sentenced to 9 months in the reformatory, followed by 18 months probation.

R. v. Snead, 2021 ONSC 7017: The offender pleaded guilty to one charge of possession of child pornography. He was sentenced to an eight month conditional sentence plus twelve months probation and ancillary orders. On appeal, the Court concluded that the sentence was demonstrably unfit, as it failed to reflect the well-established need for general deterrence and denunciation for child pornography offences. In this instance, there were no exceptional circumstances such as those in R. v. Rytel, 2019 ONSC 5541 and R. v. Doucette, 2021 ONSC 371, to allow for a conditional sentence. Instead, a just and fit sentence would be twelve months in jail. That said, the appeal judge recognized that the offender had already completed most of the eight-month conditional sentence without incident and credited him accordingly.

R. v. Treloar, 2024 ONSC 816: The offender was convicted of one count of accessing child pornography and was sentenced to six months in jail. On appeal the sentence was upheld and described as unassailable in light of R. v. M.M., 2022 ONCA 441 and R. v. M.V., 2023 ONCA 724. The appeal judge noted that he saw little meaningful distinction between the accessing and the possession of child pornography when it came to evaluating the gravity of the offence. Both require deterrence and denunciation to be the primary consideration in sentencing.

R. v. Tang, 2022 ONCJ 251: The offender, who was 22 years old, pleaded guilty to making child pornography available. The image posted contained 28 video thumbnails and 2 partial video thumbnails arranged in two rows. A search warrant executed at the offender’s home resulted in the location of 4 laptops containing 1126 images categorized as child pornography on the devices, as well as 54 videos of the same classification. 953 images and 31 videos were in plain sight. 355 images and 31 videos were unique files. Making available the child pornography was held to be more serious than possession. Considering that the offender was a youthful first-time offender, the Court sentenced him to 10 months, to be served at the Ontario Correctional Institute of Brampton, where the judge concluded that the offender could continue with the appropriate counselling, already underway.

[35] For its part, in addition to Friesen, the Defence relied on the following cases to support its position on sentencing:

R. v. M.V., 2023 ONCA 724: The offender faced various charges. With reference to the possession of child pornography, the majority noted that the sentencing range for possession of child pornography was uncertain. The Court reviewed the case ranging from a few months to three years. It also noted that conditional sentences for possession of child pornography were uncommon and highlighted R. v. Jongsma, 2021 ONSC 796, (one-year conditional), R. v. S.B., 2022 ONCJ 536, (two years less a day conditional), R. v. Prendivoj, 2022 ONCJ 257 (six months conditional), and R. v. Cusick, 2022 ONCJ 590 (six months conditional). On the facts of the case, the majority concluded that a just and fit sentence in the circumstances, taking Friesen into account was a one-year sentence, consecutive to the sentence terms for child luring and sexual interference. The dissenting judge rejected the majority view that possession of child pornography could attract a sentence at the lower range. He focused on the offender’s large collection, consisting of 500 images and 213 videos, totalling approximately 18 hours, to conclude that a one-year sentence was simply inadequate in the circumstances.

R. v. Branco, 2019 ONSC 3591: The accused was found guilty of possessing and accessing child pornography. His collection had a total of 302 unique child pornography images stored on his computer’s hard drive. Only 54 of the images were readily accessible. The remaining files were found in “unallocated” portions of the hard drive. The accused was 53 years old. Despite living in Canada for 47 years, the accused never obtained Canadian citizenship. He had a dated but somewhat related record. Following an extensive review of the sentencing ranges, the accused was sentenced to 179 days imprisonment, followed by two years probation and ancillary orders.

R. v. Treloar, 2023 ONCJ 100, (Trial decision): The trial judge rejected the conditional sentence as a just and fit sentence in the circumstances of the offender. Instead, he imposed a sentence of six months imprisonment, to be followed by three years probation.

R. v. Doucette, 2021 ONSC 371: The offender was found to satisfy the exceptional circumstances to justify a conditional sentence. The offender accessed written fiction. He also participated in a Zoom room where he injected himself with methamphetamine, masturbated and communicated with others doing the same. He was 53, had no prior criminal record, and suffered from Bipolar Affective Disorder, Generalized Anxiety Disorder and was addicted to methamphetamine. He stopped using methamphetamine after his arrest and began to receive psychiatric treatment. The appeal judge struck the six-month mandatory minimum sentence for possession of child pornography. The offender’s sentence was reduced to a four-month conditional sentence, less the time served.

R. v. Jongsma, 2021 ONSC 796: The offender pleaded guilty to one count of possession of child pornography. Starting at age 7, the offender was sexually abused as a child by an older member of his family. The abuse continued into his early teens. As he approached puberty he wondered if he was gay or whether his feelings were the result of his abuse. He was sent away for therapy conversion. After two years he ran away, and at 17 years old, he moved in with a 35 year-old man, where he suffered physical and mental abuse. Eventually, following continued trials and tribulations, he settled down with a partner. In 2015, for reasons he could not explain, he started to abuse crystal meth almost on a daily basis, which in turn led him to dark places and chat rooms that exposed him to child pornography. He said he was never attracted to sexually explicit images of boys or young men. Once sober, he was repulsed by the material he viewed and expressed shame for what he did. Since his arrest, he attended and successfully completed a two-stage drug treatment outpatient at the Centre for Addiction and Mental Health (CAMH), as well as several other counselling and therapy supports. The trial judge concluded that the offender satisfied the exceptional circumstances to justify a conditional sentence followed by a three-year probation period.

R. v. Afzaal, 2022 ONCJ 927: The offender pleaded guilty to one charge of accessing child pornography. He was sentenced to an 18 month conditional sentence, followed by a two-year probation period. The offender accessed 215 images, 17% of which involved real children engaged in sexual acts. He was 23 years of age when he started accessing the images. He was socially immature and socially isolated. In school he was the target of bullying. These experiences impacted his moral blameworthiness. The trial judge expressed the concern that he would be extremely vulnerable within an inmate population. The trial judge expressly noted that incarceration would be excessively punitive in the circumstances. Combined with his true remorse, a conditional sentence was appropriate, and its conditions would serve the objectives of denunciation and deterrence.

Analysis

i. Governing Legal Principles

[36] Section 718 of the Criminal Code sets out the purpose and objectives of sentencing:

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

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

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

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

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

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

[37] In other words, the purposes of sentencing are to be accomplished through the imposition of a “just sanctions” that reflect one or more of the traditional sentencing objectives: denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation to victims, the promotion of a sense of responsibility in offenders and the acknowledgment of the harm done to victims and the community.

ii. Sentencing in Child Pornography Cases

[38] For cases that involve the abuse of a child, s. 718.01 of the Criminal Code requires the Court to give primary consideration to the objectives of denunciation and deterrence of such conduct. Parliament added this provision in the Criminal Code in 2005: see An Act to amend the Criminal Code (protection of children and other vulnerable persons), and the Canada Evidence Act, S.C. 2005, c. 32, s.24.

[39] The Ontario Court of Appeal has repeatedly recognized the paramount importance of deterrence and denunciation in the sentencing of offenders for child pornography: see R. v. John, 2018 ONCA 702, at para. 41, R. v. Inksetter, 2018 ONCA 474, at paras. 16-22. In Inksetter the Court observed that child pornography represents a pervasive social problem, possession of such material harms children and represents a form of child sexual abuse, and children depicted in child pornography are revictimized with every viewing of the material.

[40] In Kwok, at para. 7, the trial judge identified the following as aggravating factors:

a. A criminal record for similar or related offences;

b. Whether there was also production or distribution of the pornography;

c. The size of the collection;

d. The nature of the collection (including the age of the children involved and the relative depravity and violence depicted;

e. The extent to which the offender is seen as a danger to children (including whether he is a diagnosed pedophile who has acted on his impulses in the past by assaulting children);

f. Whether the offender has purchased child pornography thereby contributing to the sexual victimization of children for profit as opposed to merely collecting it by free downloads from the internet.

[41] In the same case, the trial judge outlined generally recognized mitigating factors:

a. The youthful age of the offender;

b. The otherwise good character of the offender;

c. The extent to which the offender has shown insight into his problem;

d. Whether he has demonstrated genuine remorse;

e. Whether the offender is willing to submit to treatment and counselling or has already taken such treatment; the existence of a guilty plea; and

f. The extent to which the offender has already suffered for his crime (for example, in his family, career, or community).

iii. Sentencing post-Friesen

[42] Friesen is a significant case in the determination of a just and fit sentence for M.C. Although Friesen concerned an offender convicted of sexual interference and extortion, at para. 5 of the decision the Court discussed how prevalent, serious and harmful sexual offences involving children are:

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

[43] The Court elaborated extensively on the far-reaching and profound harm that sexual offences have on children. At paragraph 56 the Court recalled the caution in R. v. McCraw, [1991] 3 S.C.R. 72, that sexual violence against children can cause serious emotional and psychological harm that “May often be more pervasive and permanent in its effect than any physical harm”. At paragraphs 57 and 58, the Court spoke of the “shame, embarrassment, unresolved anger, and a reduced ability to trust others” that children may suffer as a result of sexual violence.

[44] Relevant to M.C.’s circumstances is the Court’s recognition at para.64 that victims of sexual abuse might become abusers themselves:

In particular, children who are victims of sexual violence may be more likely to engage in sexual violence against children themselves when they reach adulthood… Sexual violence against children can thus fuel a cycle of sexual violence that results in the proliferation and normalization of the violence in a given community.

[45] Relying on that paragraph, the trial judge in Jongsma concluded that “in sentencing a sexual offender their own history of sexual victimization and abuse is relevant and must be considered. Such a history directly impacts on their degree of responsibility for their offences. Relevant considerations would include: a. the nature and duration of the sexual abuse suffered by an accused; and b. the nature and duration of the sexual abuse he committed and c. any causal connection that might be drawn to the abuse he has suffered.

[46] In Doucette at para. 39, relying on Inksetter, at 17, the judge concluded that “[g]iven the emphasis on general deterrence and denunciation, non-custodial sentences for child pornography offences are rare, even in cases involving offenders and relatively small volumes of child pornography. He also noted at para. 53 that conditional sentences are rare, though he also recognized that they were not unheard of in exceptional cases, and enumerated several examples: R. v. Rytel, 2019 ONSC 5541, paras. 82-83, R. v. Canning, 2019 ONCJ 600, at para. 34, R. v. Cayabyab, 2019 ONCJ 772, at para 38, R. v. H.S., 2014 ONCA 323, at para. 58 and R. v. Polanco, 2019 ONSC 3073, at paras. 53-55.

[47] At paragraph 110 of Friesen, the Court directed that:

Sentences should thus increase “as courts more fully appreciate the damage that sexual exploitation by adults causes to vulnerable, young victims” (Scofield, at para. 62). Courts should accordingly be cautious about relying on precedents that may be “dated” and fail to reflect “society’s current awareness of the impact of sexual abuse on children”… Even more recent precedents may be treated with caution if they simply follow more date precedents that inadequately recognize the gravity of sexual violence against children… Court are justified in departing from precedents in imposing a fit sentence; such precedents should not be seen as imposing a cap on sentences.

[48] However, at para. 38, Friesen also recognized that:

Sentencing judges have considerable scope to apply the principles of sentencing in any manner that suits the features of a particular case. Different methods may even be required to account properly for relevant systemic and background factors …. Similarly, a particular combination of aggravating and mitigating factors may call for a sentence that lies far from any starting point and outside any range.

[49] Finally, at paras. 121-154 of Friesen, the Court identified significant factors to determine a fit sentence, although it was clear that these factors were not meant to be an exhaustive checklist: a) likelihood to reoffend; b) abuse of a position of trust of authority; c) duration and frequency; d) age of the Victim; e) degree of physical interference; and f) victim participation.

iv. Proportionality in Sentencing

[50] Section 718.1 of the Criminal Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility and moral blameworthiness of the offender: R. v. Proulx, 2000 SCC 5, at para. 83. The more serious the crime and its consequences, the greater the offender’s degree of responsibility, the heavier the sentence will be: R. v. Lacasse, 2015 SCC 64, at para. 12. Section 718.2 (a) directs that a sentence should be increased or reduced to account for the relevant aggravating and mitigation factors.

[51] In short, as the Ontario Court of Appeal recently stated in R. v. Morris, 2021 ONCA 680, at para. 58, “[t]he individualization of the sentencing process requires sentencing judges to prioritize and blend different objectives of sentencing so as to properly reflect the seriousness of the offence and the responsibility of the offender.” The imposition of a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime: R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 40. While there will rarely be only one possible fit sentence, s.718.1 of the Criminal Code provides that any sentence that is ultimately imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”: R. v. Ipeelee, 2012 SCC 13, at para. 37; Friesen, at para. 30; R. v. Parranto, 2021 SCC 46, at para. 10.

[52] On parity and proportionality, in R v. A.J.K., 2022 ONCA 487, at paras. 80 and 81, the Court of Appeal noted:

[80] When imposing a sentence, the goal is always to impose a fair, fit, and principled sanction: Parranto, at para. 10. Proportionality is key to this determination, focussing as it does on the gravity of the offence and the degree of responsibility of the offender: Friesen, at para. 30; Parranto, at para. 10. Indeed, proportionality is described in the heading above s. 718.1 of the Criminal Code as being the “[f]undamental principle” of sentencing.

[81] The principle of parity is a tool that helps calibrate proportionate sentences because, at its core, parity is about treating similar offenders who commit similar offences in similar circumstances in a similar way: Friesen, at para. 31; Parranto, at paras. 10-11. Therefore, parity exists as an expression of proportionality, providing the court with a means by which to fix proportionate sentences by reference to sentences that have been imposed in other cases: Friesen, at para. 33; Parranto, at para. 10.

[53] A helpful way of summing up the task at hand is captured by Durno J. in R. v. Singh, 2023 ONSC 4949, at paras. 47-48, where he explained that there is no mathematical formula to the determination of a just and appropriate sentence:

[47] […] Sentencing is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community: R v. M.(C.A.), [1996] 1 S.C.R. 500, at para. 91.

[48] The fundamental and cardinal principle of sentencing is proportionality: s. 718.1 of the Criminal Code. The sentence must be severe enough to denounce the offence but must “not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence”: R. v. Nasogaluak, 2010 SCC 6, at para. 42. See also: Ipeelee, at para. 37 and R. v. Bissonnette, 2022 SCC 23, 80 C.R. (7th) 127, at para. 50.

v. Conditional Sentences

[54] Finally, given the Defence’s request for a conditional sentence, to be followed by probation, separate and apart from the very high threshold for the imposition of such sentences in the context of child pornography offences, it is useful to take into account the applicable guiding principles. In R. v. Sharma, 2022 SCC 39, the SCC outlined the following pre-requisites under s. 742.1 of the Criminal Code before a conditional sentence may be imposed, at para. 13:

i. The offender was not convicted of one of the offences listed at paras. 742.1(b) through (f) (“exclusionary provisions”);

ii. A court would otherwise impose a sentence of less than two years; and

iii. The safety of the community would not be endangered by the offender serving the sentence in the community.

[55] To be clear, even if these conditions are satisfied, in the context of child pornography offences, the sentencing judge must then consider whether the conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in s.718 to 718.2 of the Criminal Code, already discussed in the preceding sections of these reasons. I expressly take into account the cases discussed at some significant length in Treloar, (trial decision), at paras. 98 through 108, to recognize that to impose a conditional sentence one would have to establish exceptional circumstances.

Aggravating and Mitigating factors for M.C.

[56] Given the foregoing applicable principles, the nature of the offence, and circumstances of the offender, I find the following aggravating factors for M.C.

a. The content of the images: Even though there is only one image associated with the June 30, 2018 charge for which M.C. pleaded guilty, I cannot ignore M.C.’s admission that he viewed images and videos on four other occasions. In most instances the images depicted young pre-pubescent boys being sexually exploited and assaulted by adult men. One instance involved watching multiple videos of child sexual exploitation. In another instance, the image depicted an infant under the age of 6 months.

The descriptions are abhorrent and horrific. Although on the evidence before the Court, the collection of the images and videos displayed are not nearly as extensive as the types of collections reported in other cases, that does not diminish the severity of the offence. The size of the collection will go to the appropriate sentence range and terms to that sentence. But whether we are talking about one video, one still image, or numerous images, any depiction of a child being sexually exploited and abused is aggravating.

b. The frequency of the viewings: M.C. admitted to 5 viewings on five separate occasions, in group settings, through Zoom chats. While the frequency of the viewings may not be nearly as pronounced as in many examples put before the Court by both the Crown and the Defence, there was nothing accidental or inadvertent about M.C.’s participation in these viewings. He entered those chatrooms systematically and deliberately. The frequency will go to the sentencing range, as well as the principles related to parity and proportionality.

c. The setting of the viewing: The group viewing is traumatizing to the victims and magnifies the gravity of the offence. The very act of sharing the offending images in a group causes profound harm to the children depicted. This consideration is somewhat tempered by the fact that M.C. did not organize the viewings and did not bring the viewers together. But M.C. was there on his own free will. Moreover, he was fully engaged in the activity.

[57] Having regard for the aggravating factors outlined in “Kwok”, M.C. neither produced nor distributed child pornography. Although there was no evidence on the size of the collection that was streamed, on the basis of M.C.’s admission, the collection was modest, and very clearly, much smaller than any of the collections reported in the cases put before the court by both sides. Finally, there was no evidence that M.C. bought child pornography images, videos or collections.

[58] These findings are relevant because they serve to distinguish this case from several of the cases the Crown put before this court. The case closest to M.C.’s situation is Treloar. There, the offender received a six month custodial sentence. Although the case concerned one accessing charge, the collection accessed involved over 2500 unique offending images. This is far in excess of what M.C. accessed through the chatrooms. Moreover Treloar had not undertaken any therapy to the depth or magnitude of M.C.’s efforts.

[59] On the question of whether M.C. is a danger to children, until his offending attendances on Zoom, M.C. had not engaged in any activities against children and was not a danger to children. Dr. Gojer’s conclusion that M.C.’s history and charges “reflect an underlying pedophilic interest that is non-exclusive” and that his “pedophilic interests are complex and on the surface one can see him as having an attraction to underaged males” is a concern. Similarly, Dr. Gojer’s caution that even if M.C. presents as somebody who “is likely not going to reoffend and is likely to do well in therapy”, he “should not be in the presence of anyone below the age of 16 years unless he is with a responsible adult”, is significant. To be clear, these cautions do not rise to the level of being aggravating factors; rather, they tie into M.C.’s mitigating factors, his rehabilitative prospects, and the principles of parity and proportionality intended to inform the determination of a fit and just sentence, which I discuss below.

[60] M.C. presents with several very significant mitigating factors:

a. M.C. comes before the Court without a criminal record. At 37 years old, he is relatively young.

b. M.C.’s history of childhood sexual abuse, exploitation, and the associated trauma is a most significant mitigating factor and has the effect of diminishing his moral blameworthiness for his offence. As in Jongsma, M.C.’s history of abuse led him to the chat rooms and the offence before this Court. That combined with his drug addictions brought M.C. to dark places where he found himself reliving his own traumatic childhood experiences. The extent of M.C.’s cognitive distortion in the viewing of the offending images and associated activities discussed by Dr. Gojer underscores the profound extent of the M.C.’s trauma. This situation ties in directly into the issue of the extent of M.C.’s moral blameworthiness for his actions.

c. Although dreadfully traumatized by his childhood history and the substance abuse, to which he resorted for emotional regulation, M.C.’s resilience and determination to work within the confines of his release conditions to establish his vintage clothing business back in Toronto speaks volumes to his underlying good character. This too is mitigating.

d. M.C.’s very extensive therapy and counselling regime that he commenced soon after his arrest, which he has continued attending consistently over the past five plus years, and which is ongoing, is a most significant mitigating factor. This combined with Dr. Gojer’s conclusion that M.C. can extinguish his urges related to children with his extensive and continued therapy cannot be ignored.

e. Through Dr. Gojer’s report, one learns from Mr. Peach that M.C.’s chronic use of substances for emotional regulation grossly impaired his decision-making at the time of the offence. In at least some of the instances when M.C. attended on the Zoom chats, M.C. was under the influence of crystal meth. With the benefit of his therapy and counselling, M.C. has stopped using the drug and has not used any other drugs since his arrest. The mitigating aspect of this is his ability to stop the substance abuse, even if that has been with the support of the counselling and therapy.

f. M.C. is deeply remorseful for his actions. As a result of his extensive therapy and counselling, he has gained insights into his offending activities, he has come to appreciate the reasons for his actions, and he has taken the corresponding responsibility. In his expression of remorse before the Court, what I saw was a brave individual who had the courage to take responsibility for his offence. But I was also confronted with a very fragile and brittle individual struggling to heal from the profound trauma caused by both his childhood history and his extensive substance abuse. His sense of fear, shame and embarrassment was palpably sincere.

g. M.C. admitted to viewing the offending images in his Formal Admission of facts. The Crown doubted the strength of M.C.’s admissions, noting that the admissions were only forthcoming on the eve of trial, in the context of a nolo contendere hearing. I disagree with the Crown’s assessment of this point. Although the formal admissions may not have been forthcoming until the trial, I cannot ignore M.C.’s admission to viewing the offending images immediately upon his arrest in 2018. I also note that M.C.’s almost immediate and willing resort to therapy and counselling is consistent with somebody who both admits to his wrongs and is remorseful. In those sessions, there is no suggestion that he tried to play down or diminish the extent of his activities in the chatrooms. If anything, he provided far more detail than was contained in the formal admission. This is very relevant to the ultimate objectives of deterrence and denunciation.

h. M.C. is lucky to have a very supportive family. Their efforts to get M.C. into therapy, their own struggle to understand the depth of M.C.’s childhood trauma, their profoundly candid and moving self-examination cumulatively speaks to their commitment to ensure that M.C. receives the appropriate therapy and then stay away from the risks of reoffending.

i. M.C. has not reoffended over the past six years since his arrest.

A Just and Fit Sentence

[61] Against the foregoing findings, I turn to the determination of a just and sentence for M.C. Having reviewed the applicable law in the preceding paragraphs at some length, for ease of reference, I highlight the essential guiding principles:

i. Accessing child pornography is a very serious offence;

ii. the sexual abuse and exploitation of children causes profound, devastating, and life-altering harm to the victims, their families, and the community, Friesen, at para. 5;

iii. denunciation and deterrence are of primary importance in the termination of a just and fit sentence, leaving the Court with few options other than imprisonment, Inksetter, at para. 17, John, at para. 41, and R. v. McCaw, 2023 ONCA 8, at para. 29;

iv. sentences for sexual offences against children must increase, see Friesen;

v. non-custodial sentences for child pornography cases are rare, even for first offenders and relatively small volumes of child pornography, Doucette, at para. 39;

vi. Conditional sentences for sexual offences against children will only rarely be appropriate and their availability must be limited to exceptional circumstances that render incarceration inappropriate, see M.M., at para. 16, Doucette, at para. 53, and Jongsma, at para. 73; and

vii. Sentencing judges have considerable scope to apply the principles of sentencing in a manner that suits the features of a particular case, that responds to the particular combination of aggravating and mitigating factors, and that ultimately may lie far from any starting point or range, Friesen at para. 38.

[62] M.C.’s cumulative circumstances underlying his offence are exceptional and render a carceral term highly problematic. Absent the combination of M.C.’s dreadful childhood history, his extensive and ongoing counselling and therapy, the Crown’s indication that it would be highly unlikely that he could continue with his ongoing counselling if he were to receive a custodial sentence, and M.C.’s supportive family, an appropriate sentencing range would be three to six months in custody, followed by two to three years probation. This would be in keeping with the ranges reflected in the cases put before this court by both sides.

[63] What makes M.C.’s circumstances exceptional is the combination of his circumstances. The existence of any one of these circumstances, in the absence of the others, would diminish the exceptionality. M.C. came before this Court as a victim of sexual child abuse. As noted in Jongsma, at para. 69, the enormity of the harms that a former child victim of sexual assault has suffered must be considered when that person is being sentenced for sexual offences against children. Regrettably, M.C.’s experiences and actions exhibited many, if not all, of the concerns and warnings raised in Friesen about the effects of childhood sexual exploitation.

[64] Friesen, at paras, 51-58, 60-64, 78-84, outlines the extensive harms of sexual violence on children’s self-fulfilment, their autonomous development to adulthood, the violation of their integrity and self-worth, the shame, embarrassment, and unresolved anger they feel, their reduced ability to trust others, and the risks that in the long-term, they may be prone to engage in sexual violence against children themselves. They may also struggle with substance abuse, mental illness, post-traumatic stress disorder, eating disorders, suicidal ideation, self-harming behaviour, anxiety, depression, anger, hostility and poor self-esteem as adults. M.C. checks off almost all of these difficulties.

[65] Dr. Gojer’s report to the Court spoke extensively about M.C.’s difficulties, the reasons for his cognitive distortion and pedophilic tendencies, his depression and anxiety, his low self-esteem, and his resort to substance abuse for emotional self-regulation. For the purposes of understanding why M.C. turned to child pornography, one of the most striking observations in Dr. Gojer’s report was his conclusion that M.C.’s cognitive distortion and his pedophilic interests was a product of his childhood sexual abuse. These are exactly the kinds of harms that Friesen warned of in the noted paragraphs.

[66] But having regard for the imperatives of deterrence and denunciation, it is important to caution that an offender’s personal history, even if traumatic, may not be sufficient to find exceptional circumstances to justify a non-custodial sentence. An offender, who experienced child trauma but who otherwise lacks insight, does not seek treatment, and is otherwise in denial of his or her moral blameworthiness, may not represent an exceptional circumstance.

[67] What makes M.C.’s situation pronounced meriting close scrutiny is the combination of his history, and the proactive steps he undertook almost immediately upon his arrest to obtain counselling and therapy for his predicament. But what makes his situation exceptional are the following additional factors: i. M.C.’s continued need for counselling; ii. the Crown’s practical recognition that counselling while in custody would be unavailable, and therefore suspended until M.C. were released on probation; iii. M.C. having overcome his substance addiction and being drug-free for almost six years; and iv. the degree to which his family will be there to ensure that he meets the requirements of a conditional sentence and does not reoffend.

[68] Regarding the need for ongoing treatment, Dr. Gojer advised the Court that M.C. would benefit from continued therapy in both the individual and group therapy format for sex offender counselling and trauma counselling. Dr. Gojer explained that he ran a group for sex offenders that was administered through probation services. The program consisted of a total of 16 sessions, held twice a week, over the course of 8 weeks. Each session is two hours. There are three programs a year that are offered in the spring, the fall and the winter. M.C. would have to be referred to the program by his probation officer or on the recommendation of the Court. He could also repeat the programme if there were such a need. Dr. Gojer underscored M.C.’s expressed desire to continue to work with Dr. Kalia and he agreed that M.C. should continue to see her.

[69] Given M.C.’s intensive counselling and therapy since the fall of 2018, I asked Crown counsel about the prospects of continuing with counselling while in custody. Although counsel initially suggested that M.C. could receive appropriate programming while in custody, he also readily admitted that practically speaking, the 3-month time lag for an offender’s assessment, would effectively suspend M.C.’s counselling. If M.C. were to receive a custodial term, he would have to wait until after his release to resume his counselling and therapy sessions. Such a prospect was especially troubling, given M.C.’s own expressed desire to continue with counselling.

[70] Although there was no evidence before the Court that a disruption in his counselling for a period of three to six months would be detrimental to M.C.’s condition and progress, there was also no evidence to reassure me that M.C. would not suffer a relapse if his counselling and therapy underway were to be interrupted by a custodial sentence even for a short period of time. As between these two considerations, the fact that after six years of steady counselling since his arrest, M.C.’s continued to require counselling revealed to me the magnitude of his childhood traumas and his continued vulnerabilities. Against that reality, the practical unavailability of any counselling supports if M.C. were to receive be a custodial sentence was most unsettling. The risk of a relapse would simply be too serious an outcome.

[71] To be very clear, I fully appreciate that denunciation and deterrence is the primary objective in the sentencing of an offender for child offences. However, those goals cannot possibly operate to retraumatize the offender and cause a relapse, with the further risk that might return to his old ways for emotional regulation. Given M.C.’s history and experiences, the concern is very real. It is amplified by the concerns expressed by his parents that a custodial sentence would “interrupt and undo all the progress [M.C.] has made”. To suffer a relapse because of a custodial sentence and to run the risk of reoffending would be contrary to the very objectives of deterrence and denunciation.

[72] My concern about the effects of a custodial sentence on an already traumatized offender should not be taken to mean that I am prioritizing rehabilitation over denunciation and deterrence, or that I am conflating the objectives of sentencing. It is meant to underscore the concern that M.C.’s presence in a custodial setting without the required supports, could set him on a path to reoffend, the very contrary outcome from what deterrence and denunciation is intended to achieve. In other words, on the evidence before me, M.C.’s circumstances are such that a custodial sentence, as a function of deterrence and denunciation could become the source of new trauma that eventually causes him to reoffend once he is released. Such a concern is not remote. M.C.’s past challenges with substance abuse and his struggles for emotional and sexual regulation make such a prospect real. A relapse could cause him to resort back to his substance addictions and attendances in Zoom chat groups with everything that such activities might entail. On such a scenario, the custodial sentence would accomplish the very opposite of what it would ordinarily be intended to achieve.

[73] On a related concern, I cannot ignore the implications of M.C. having overcome his substance addictions. This is no small feat, given M.C.’s previous history of addictions. Dr. Gojer and Mr. Peach reported on the detrimental effects of M.C.’s crystal meth addiction and how he resorted to that drug for emotional regulation. In their respective views, M.C.’s dependence on crystal meth clouded his judgment and led him to the offending chat rooms. Keeping in mind the extent of M.C.’s fragility, and the ease with which prisoners may access drugs, I have little confidence that M.C. could stay away from any such temptations, especially with his counselling being suspended. This risk feeds into the concerns about how instead of deterring M.C. from future offences, a custodial sentence might walk him right into them.

[74] Finally, the support that M.C. has received from his family cannot be overstated. As described in Friesen, one sees in M.C.’s parents the hurt and trauma they had to contend with as a result of their son’s childhood history. Their worry and own trauma is both palpable and real. Their support for M.C.’s efforts not to ever reoffend is encouraging and complements the consideration in favour of a finding that M.C.’s circumstances are exceptional, warranting a non-custodial sentence.

[75] Which brings me to the terms of an appropriate conditional sentence. Deterrence and denunciation can be achieved with terms that are carefully crafted to restrict M.C.’s movements to those related to his continued therapy and his ability to work. The charges against M.C. were laid almost six years ago. Although an 11B motion to dismiss the case against him was dismissed, I cannot ignore that M.C. has already been under house arrest for almost six years, without any incident or breach of his release terms. In that period, he lost his business and his life in Paris. He will not be going back there for a long time, if ever. These circumstances go towards satisfying the requirements of deterrence and denunciation.

[76] Having regard for M.C.’s circumstances to date, I accept the Defence proposal that M.C. receive a conditional sentence of 18 months, to be followed by an additional 18 months probation. Next, I turn to the terms and conditions for the conditional sentence and for probation.

Terms and Conditions of the Conditional Sentence

[77] The terms and conditions to M.C.’s conditional sentence are intended to respond to the requirements of deterrence and denunciation as the primary objective of sentencing, as well as to rehabilitation. Accordingly, M.C. shall:

a. Keep the peace and be of good behaviour;

b. Appear before the court when required to do so by the court;

c. Report to a supervisor within two working days from the date of this order;

d. Reside at 17 Windley Avenue, Toronto ON with his parents and notify his supervisor of any change of address within 48 hours of those changes coming into effect;

e. Remain within that address except to go to work on a schedule to be discussed and fixed with his supervisor. Any variations to the schedule are to be discussed and approved by the supervisor and before they are implemented;

f. May leave the residence one morning or afternoon a week for up to three hours to attend to personal needs. The afternoon shall be identified and fixed with his supervisor. Any variations to that day shall be discussed and approved by the supervisor, although to be clear, the weekly personal time should be fixed and then varied only on account of exceptional requirements;

g. May leave the residence to attend to medical or dental care, as well as the sex offender and trauma counselling and therapy sessions. The supervisor shall be advised in advance of all such appointments and treatment schedules;

h. Maintain full-time employment be that at his business, MHC Vintage, or other employment as he may obtain from time to time. He will advise the supervisor of any changes to his business operations, participation, and / or employment activities;

i. Take, actively participate, and complete, any counselling or rehabilitative programming identified by Dr. Gojer in his report before the Court and directed by the supervisor, including sex offender counselling, childhood sexual trauma counselling and substance abuse / addiction counselling;

j. Sign any releases as may be required to enable the supervisor to monitor his counselling and therapy sessions for the purposes of confirming compliance with the requirement that M.C. continue with his counselling and therapy;

k. Not purchase, possess, or consume any illegal drugs, or any prescription medication that has not been validly prescribed to him. M.C. He shall advise his supervisor of any validly prescribed medication;

l. Abstain from being in the company of a person under the age of 18 years, unless in the direct company of any adult approved of in writing by his supervisor;

m. M.C.’s store, MHC Vintage, on Sorauren Avenue, is in a residential neighbourhood with young families and with a park and café shops nearby. M.C. shall not attend at either the park or the café shops in the vicinity of his store. If M.C. attends his store when it is open for business, he shall be in the presence of an adult, who could be one of his employees, a friend, or a family member. When the store is closed, M.C. may attend the store on his own. M.C. shall not be permitted to hire any employees under the age of 16. If the business already employs staff under the age of 16, M.C. shall not have any contact with them in the absence of another adult being present.

n. Abstain from accessing the internet or other digital network, with the following exceptions:

i. On M.C.’s personal device, for which he provides his supervisor in writing, the make, model, serial number and service provider as well as any phone number connected with the device.

ii. The personal device, as referenced in the preceding paragraph, shall be equipped with software, applications, and / or hardware that blocks access to any social networking sites, including, but not limited to Facebook, Twitter, Tumblr, Instagram, and Youtube, peer-to-peer file sharing networks, and usenet or Freenet. It shall not have scrubbing or encryption software installed. If the device comes with any such pre-installed applications, they shall be disabled or uninstalled. For greater certainty, M.C. shall not access or visit chat rooms, use file sharing platforms, or any video-conferencing applications or functions, such as Zoom, Teams, Webex, or VPN, with the exception of such access for counselling or therapy sessions as may be required and referenced in sub paragraph (i).

iii. A separate device may be used for the purposes of operating / accessing M.C.’s business, MHC Vintage, or any other related business, and/ or employment. As with the personal device, M.C. shall provide his supervisor, in writing, the make, model, serial number and service provider as well as any phone number connected with the device. M.C. may use of that device for the purposes of sourcing goods, doing online promotions and sales, doing online promotions and sales for the clothing business, MHC Vintage, only in the presence of an adult, who will ensure that M.C.’s activities are limited to the noted tasks. When using this device for these tasks, M.C. shall not use it to access or visit chat rooms, use file sharing platforms, or any video-conferencing applications or functions, such as Zoom, Teams, Webex, or VPN.

iv. The supervisor shall also be provided with any passwords and information necessary that he or she may require to verify compliance with the noted conditions.

v. M.C. may use any other telecommunication device under the direct and constant supervision of any person approved of in writing by the supervisor.

o. Under no circumstances shall M.C. be permitted to use any telecommunication device to access the internet or other digital network to access child pornography, access or participate in chat rooms, bulletin boards or other social media that discuss or promote child exploitation, child pornography, sexualized images of children or other child exploitation material.

[78] A probation period of 18 months is to follow the conditional sentence on the following terms. M.C. shall:

a. Keep the peace and be of good behaviour.

b. Report to probation as directed no later than 48 hours from the conclusion of his conditional sentence.

c. Notify the Probation Officer of any changes of address or employment within 48 hours of those changes coming into effect.

d. Maintain full-time employment either with his own business or as an employee.

e. Continue to actively participate in and complete any counselling or rehabilitative programming as directed by his Probation Officer, including counselling for sex offences, childhood sexual trauma, substance abuse / addiction.

f. Sign releases as may be required to enable the Probation Officer to monitor counselling and therapeutic compliance.

g. Not purchase, possess, or consume any illegal drugs, or any prescription medication that has not been validly prescribed to him. M.C. He shall advise the conditional sentence officer of any validly prescribed medication.

h. Abstain from being in the company of a person under the age of 18 years, unless in the direct company of any adult approved of in writing by the conditional sentence officer.

i. M.C.’s store, MHC Vintage, on Sorauren Avenue, is in a residential neighbourhood with young families and with a park and café shops nearby. M.C. shall not attend at the either the park or the café shops in the vicinity of his store. If M.C. attends his store when it is open for business, he shall be in the presence of an adult, who could be one of his employees, a friend, or a family member. When the store is closed, M.C. may attend the store on his own. M.C. shall not be permitted to hire any employees under the age of 18. If the business already employs staff under the age of 18, M.C. shall not have any contact with them in the absence of another adult being present.

ii. Abstain from accessing the internet or other digital network, with the following exceptions:

iii. On M.C.’s personal device, for which he provides the conditional sentence officer in writing, the make, model, serial number and service provider as well as any phone number connected with the device.

iv. The personal device, as referenced in the preceding paragraph, shall be equipped with software, applications, and / or hardware that blocks access to any social networking sites, including, but not limited to Facebook, Twitter, Tumblr, Instagram, and Youtube, peer-to-peer file sharing networks, and usenet or Freenet. It shall not have scrubbing or encryption software installed. If the device comes with any such pre-installed applications, they shall be disabled or uninstalled. For greater certainty, M.C. shall not access or visit chat rooms, use file sharing platforms, or any video-conferencing applications or functions, such as Zoom, Teams, Webex, or VPN, with the exception of such access for counselling on therapy sessions as may be required and referred at subparagraph (e).

v. A separate device may be used for the purposes of operating / accessing M.C.’s business, MHC Vintage, or any other related business, and/ or employment. As with the personal device, M.C. shall provide the conditional sentence officer in writing, the make, model, serial number and service provider as well as any phone number connected with the device. M.C. may use of that device for the purposes of sourcing goods, doing online promotions and sales, doing online promotions and sales for the clothing business, MHC Vintage, only in the presence of an adult, who will ensure that M.C.’s activities are limited to the noted tasks. When using this device for these tasks, M.C. shall not use it to access or visit chat rooms, use file sharing platforms, or any video-conferencing applications or functions, such as Zoom, Teams, Webex, or VPN.

vi. The conditional sentence officer shall also be provided with any passwords and information necessary that he or she may require to verify compliance with the noted conditions.

vii. M.C. may use any other telecommunication device under the direct and constant supervision of any person approved of in writing by the conditional sentence officer.

i. Under no circumstances shall M.C. be permitted to use any telecommunication device to access the internet or other digital network to access child pornography, access or participate in chat rooms, bulletin boards or other social media that discuss or promote child exploitation, child pornography, sexualized images of children or other child exploitation material.

Ancillary Orders

[79] Accessing child pornography is a designated offence under s. 490.01(1) of the Criminal Code. Accordingly it is appropriate that I make an order under s.490.012(1) requiring M.C. to comply with the Sex Offender Information Registration Act (SOIRA). The order is effective today and will continue in force for 20 years, in accordance with s.490.013(2)(b) of the Criminal Code.

[80] Accessing child pornography is a primary designated offence under s.487.04(a)(i.8) and a DNA order is mandatory under s.487.051(1). A DNA sample shall therefore be provided.

[81] The Crown also sought a s.161 order. The Defence directed the Court to the treatment of this request in Jongsma, and R v. K.R.J., 2016 SCC 31, and suggested they could offer guidance to the Court and possibly limit a s.161 order to the terms of s.161(d).

[82] Unlike Jongsma, where the sentencing judge found that there was no evidence that the offender posed any risk to children, the evidence before this Court was not clear cut. Dr. Gojer spoke of M.C.’s cognitive distortion and the effect of his own childhood sexual experiences on his viewing of the offending images. He described M.C.’s sexual interests as fluid and changeable, such that it “augers well for him to work on extinguishing urges related to children and redirect his interests to adults”. For my purposes, M.C.’s urges relating to children have not been extinguished yet. Although Dr. Gojer concluded that M.C. is a “man who is likely not going to reoffend and is likely to do well in therapy”, his added caution that M.C. should not be in the presence of anyone below the age of 16 years unless he is with a responsible adult underscored the view that M.C. still has a long way to go with his therapy and counselling. The SOIRA order offers insufficient protection for the children that M.C. might encounter, whether at a park, a school, or other environments. The same holds true for his activities on the internet or other digital networks. Accordingly, I find it appropriate to make a s.161(a), (b), (c) and (d) order, effective for a period of 10 years from the date of this order.

Conclusion

[83] In light of the foregoing considerations, M.C. is to receive a conditional sentence of 18 months, to be followed by 18 months probation and ancillary orders in accordance with the terms and conditions outlined in the preceding paragraphs.

Tzimas J.

Released: May 24, 2024