Reasons for Sentence
Court File No.: CR-23-33
Date: 2025-02-19
Ontario Superior Court of Justice
Between:
His Majesty the King
and
Matthew Elias, Accused
Appearances:
- Ms. M. McGuigan, for the Crown
- Mr. R. Geurts, Mr. J. Gilbert, and Mr. H. Hassan, for Mr. Elias
Heard: January 27, 2025
Justice Peter Conlan
I. The Circumstances of the Offence
[1] Matthew Elias (“Elias”) has pleaded guilty to and been found guilty of possession of child pornography, contrary to section 163.1(4) of the Criminal Code (count 2 on the Indictment dated March 20, 2023). A conviction is now registered, and this Court needs to sentence the offender for his crime.
[2] The facts underlying the offence are contained in Exhibit 1 – the agreed statement of fact.
[3] On March 4, 2021, someone uploaded a child pornography video and shared it in a chat. The associated Internet Protocol address that was used to upload the video was verified as being the home address of Elias. The video was provided to the Halton Regional Police Service.
[4] The video was of a young female, bent over, wearing a skirt and no underwear. The child holds her buttocks open and then places her finger near her anus. The camera focusses on her anal area. The child then lies on her back, opens her legs to the camera and exposes her vagina. The child masturbates and places her finger inside her vagina and then licks her finger. The camera focusses on her vagina. The child appears to be between 7 and 10 years old. Her vaginal area has no pubic hair.
[5] On September 23, 2021, police executed a search warrant at the offender’s home. Present at the home at the time of the search were Elias and his parents.
[6] The police found several USB drives in a dresser in the offender’s bedroom. Several computer devices, other electronic devices and accessories were seized by the police.
[7] The seized devices were downloaded by the police and found to contain 22,746 child pornography images and 741 child pornography videos.
[8] To label the child pornography material as being disturbing would be a gross understatement. The material includes numerous videos of the sexual abuse, rape and torture of young children under the age of 8 years old; numerous videos of female children under the age of 8 years old who are masturbating; numerous videos of children as young as 3 years old; numerous videos of very young female children being anally and vaginally penetrated by adult males; numerous videos of very young female children performing fellatio on adult males; numerous videos of very young female children posing nude for the camera; numerous images and videos of female children posing provocatively for the camera and engaging in sexual activity with other children; and other videos that appear to have been taken by Elias, covertly filmed in public areas, with the focus being on the buttocks of the unsuspecting victims.
[9] The child pornography material possessed by the offender has been summarized by way of thorough written descriptions of a representative sample of the images and videos (Exhibit 2, sealed, but reviewed by this Court). Those descriptions are shocking. They are disgusting. The truly depraved nature of the child pornography that this offender possessed can be fairly illustrated with one example from Exhibit 2 – a video of a very young female child, no older than 5 years of age, sucking the penis of an adult male. The video is in slow motion and captures the adult male ejaculating into the mouth of the child, barely out of her toddler years.
II. The Circumstances of the Offender
[10] The following information about Elias is taken from various sources, including: (i) the presentence report (Exhibit 3), (ii) the evidence of the offender’s father who testified at the sentencing hearing; and (iii) the evidence of Dr. Julian Gojer, forensic psychiatrist, who provided expert opinion evidence at the sentencing hearing by way of his report dated September 30, 2023 (Exhibit 4) and his testimony.
[11] The author of the presentence report described Elias as being polite, cooperative and forthcoming; disgusted and ashamed about what he has done; and genuinely remorseful for his criminal conduct but lacking insight into the reasons for his offending behaviour.
[12] That Elias is deeply remorseful and regretful for his actions and has taken full responsibility for what he has done was confirmed by Dr. Gojer in his report.
[13] The author of the presentence report opined that Elias was a suitable candidate for community supervision.
[14] That opinion is shared by Dr. Gojer, who testified that Elias would likely be “highly compliant” with therapy and treatment. Dr. Gojer testified that the offender needs, first and foremost, sex offender therapy. Regardless of the sentence imposed by this Court, Dr. Gojer would be willing and able to take Elias as a patient in his own sex offender therapy program or refer the offender to another such program, including the one run by the Centre for Addiction and Mental Health.
[15] The police described Elias as being cooperative and quiet during the arrest process.
[16] The offender is currently 37 years old. He is a Canadian citizen. He has no children. He is single and has never been married or in any romantic relationship with anyone. He has no criminal record. He has now been on bail for approximately 40 months, without incident.
[17] The offender and his entire family, including his two siblings and their families, hold the offender responsible for the death of his mother. After the arrest of Elias, his mother was very distraught. She cried all of the time. She was then diagnosed with stage 4 cancer and died on January 1, 2024, leaving behind the offender and his father living in the home together.
[18] Since the arrest of Elias, the offender has been completely ostracized by his two siblings and their families. He has no relationship of any kind with the children of his siblings.
[19] The offender’s sole support now comes from his father, whom he has always lived with. Elias has never lived independently and has no desire to do so.
[20] The offender completed high school and has been employed in the past at a local motor company. He was laid-off from that employment.
[21] Although the offender tended to minimize his substance abuse issues with the author of the presentence report, the evidence as a whole demonstrates that Elias has substance abuse issues with alcohol and marihuana.
[22] The offender has a long history of mental health issues, including depression, low self-esteem, loneliness, and suicidal ideation.
[23] Dr. Gojer has confirmed a diagnosis for Elias of Persistent Depressive Disorder. The depression is linked to low self-esteem and an associated Body Image Disorder.
[24] According to Dr. Gojer, the offender “has gravitated to pedophilic interests and can be diagnosed as having a problem with a pedophilic disorder” (the final page of Exhibit 4). “The primary problem is pedophilia”, is what Dr. Gojer stated in his oral testimony at the sentencing hearing.
[25] Dr. Gojer, in his oral testimony, stated that, untreated, the offender poses a “moderate risk” to re-offend. The pedophilia is a significant risk factor, according to Dr. Gojer.
[26] Exhibit 5 is a letter dated September 19, 2024 and written by the offender’s therapist, Coco Johnson, a member of the Ontario College of Social Workers and Social Service Workers. Since November 26, 2021, Elias has been meeting regularly with Ms. Johnson. The therapist confirms in the letter that the offender “arrives on time for his scheduled weekly appointments and takes his medication as prescribed”; that he “continues to be depressed, is plagued with feelings of dread and he is experiencing suicidal ideation”; that he genuinely and deeply regrets the terrible choice that he made to watch child pornography; that he has suffered many collateral losses since his arrest including the death of his mother, the death of his dog, and the total estrangement of him from all of his family except his father; that there is no doubt in Elias’ mind that what he did killed his mother; that he is worried that his father will also die if he is not there to help his father; that he now “better understands that children are tormented by the making of child pornography and that by watching it he was revictimizing the children”; and that he has long-standing feelings of depression and low self-esteem and suicidal thoughts.
[27] Exhibit 7 is a lengthy letter written to this Court by Elias. In that letter, he apologizes to all of the children who are the victims of his offence. At the end of the letter, he again expresses remorse for what he has done “to the victims of the abuse”, and he states the following: “I know I have to be a better human being and all I can do is prove it for however long my life will last but I am committed to being better. I will never forget the pain and suffering that I have caused to everyone involved. I truly am sorry”.
[28] The evidence of the offender’s father is that he depends heavily on Elias to help him with the activities of daily living, including laundry, grocery shopping, going to the pharmacy, yard work, and other chores. The father is very ill. He cried in the witness box when asked about his late wife. He has diabetes, heart problems, anemia, high blood pressure, and severe arthritis. He takes about 15 different medications, and he brought them all to court with him in a bag. He is often in terrible pain, bed-ridden, unable to leave the house for weeks at a time, unable to go up and down the stairs at home, unable to drive, unable to sleep, and unable to do basic things like open a water bottle.
[29] The father described the offender as being completely isolated from the rest of the world.
[30] Finally, this Court has had Elias in front of me on numerous occasions. He has always appeared to me to be terribly sad, dejected, and ashamed. He typically holds his head down in silence. He strikes me as a 37-year-old man who carries the weight of the world on his shoulders and who is struggling to survive.
III. The Sentencing Positions of the Crown and the Defence, the Court’s Imposition of Ancillary Orders, and the Paramount Principles of Sentencing for this Offender, on these Facts
[31] The Crown requests the following:
(i) forfeiture order for all seized media – on consent of the defence and already signed by this Court on the date of the sentencing hearing;
(ii) secondary DNA order – on consent of the defence and hereby issued by this Court;
(iii) SOIRA order for twenty (20) years – on consent of the defence and hereby issued by this Court;
(iv) subsection 161(1)(d) Criminal Code order for life; and
(v) imprisonment for three (3) years.
[32] The defence requests a conditional sentence order of imprisonment for two (2) years less one (1) day in duration, to be followed by probation for three (3) years.
[33] On the subsection 161(1)(d) order, the defence suggests that the Court should consider a shorter duration for the order (something less than life) but also impose the order under paragraphs (a), (b) and (c) of subsection 161(1).
[34] This Court hereby imposes the subsection 161(1) order for life. The order is made under all of paragraphs (a), (b), (c), and (d). The language of the order under paragraph (d) shall mirror that suggested by the Crown in its written sentencing position document filed with the Court. The Crown shall provide another copy of that document to the Registrar, today, for preparation of the sentencing paperwork.
[35] The order under paragraph (a) has no exceptions to it.
[36] The order under paragraph (b) has no exceptions to it.
[37] The order under paragraph (c) shall read as follows: “you are prohibited from having any contact or communication, directly or indirectly, with any person who is under the age of 16 years, unless the person who is under 16 years of age is your child or the child of one of your siblings and you are having the contact or communication with that person who is under 16 years of age while you are being directly supervised by your father or one of your siblings”.
[38] Both sides agreed, and this Court concurs, that the paramount sentencing principles here are denunciation and deterrence (both specific and general). I would add that rehabilitation is also important in this case, as Elias is a first offender and requires therapy and treatment for a myriad of serious issues.
IV. The Legal Parameters, the Legal Principles, and the Aggravating and Mitigating Factors in our Case
[39] The current subsection 163.1(4)(a) of the Criminal Code stipulates that the offence of possession of child pornography, when prosecuted by indictment, attracts a maximum sentence of ten (10) years’ imprisonment and a mandatory minimum penalty of one (1) year in custody.
[40] There is no debate in our case that there is, in fact, no mandatory minimum sentence that Elias is facing. Since the decision of the Court of Appeal for Ontario in R. v. John, 2018 ONCA 702, Crown prosecutors in Ontario have generally conceded that the mandatory minimum sentence of imprisonment for possession of child pornography is unconstitutional, whether the then six-month minimum or the current one-year minimum.
[41] Just to complete this discussion, in R. v. Alexander, 2019 BCCA 100, the then six-month mandatory minimum punishment under subsection 163.1(4)(a) of the Criminal Code was found by the British Columbia Court of Appeal to violate section 12 of the Charter and, therefore, be of no force and effect. And, in 2023, the Court of Appeal of Quebec held the same thing for the current subsection 163.1(4)(a) of the Criminal Code – Procureur général du Québec c. Terroux, 2023 QCCA 731.
[42] It follows from the above discussion that, subject to (i) an examination of whether a sentence of imprisonment of less than two years in duration is a fit one in this case, and (ii) whether Elias’ service of the sentence of imprisonment in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code, statutorily speaking, a conditional sentence order is available for Elias.
[43] In terms of the range of sentence for possession of child pornography, although I have read and considered all of the decisions filed by both sides, I agree with the Crown that the governing authority for this Court is the recent decision of Chief Justice Tulloch, for the Court of Appeal for Ontario, in R. v. Pike, 2024 ONCA 608.
[44] We know several important and binding principles from that decision. The upper end of the sentencing range for this offence is five (5) years in the penitentiary. There is no lower end of the range. The statutory one-year minimum term of imprisonment is indeed unconstitutional. Conditional sentences are available, however, in deciding whether such a sentence is consistent with the fundamental purpose and principles of sentencing, courts must pay particular attention to the severe wrongs and harms that are caused by those who possess child pornography, their degree of moral blameworthiness, and Parliament’s prioritization of deterrence and denunciation. Such particular attention will ordinarily result in a custodial sentence and not a conditional sentence. There must be the presence of personal circumstances and mitigating factors that are sufficiently compelling to make a conditional sentence proportionate in the case at hand. There is no presumption against a conditional sentence for possession of child pornography, nor is there any closed-list of exceptional circumstances that must be found to exist before a court can reasonably impose a conditional sentence. Multiple seemingly non-exceptional factors could collectively render a conditional sentence a fit and proportionate response (paras. 176-183 of the decision in Pike, supra).
[45] With regard to the aggravating factors in our case, I agree with the Crown that the following are all aggravating:
(i) the sheer size of this collection of child pornography images and videos – it is immense;
(ii) the degree of depravity that infuses this collection – it is significant;
(iii) the voyeuristic tendencies of this offender, exemplified by the videos that were seized which show the buttocks of persons secretly filmed in public areas; and
(iv) this offender’s moderate risk to re-offend (although, it must be remembered that the said degree of risk is based on the assumption that Elias would remain untreated for his pedophilic disorder, which assumption is very unlikely to materialize, in my view).
[46] Respectfully, I disagree with the Crown that this Court can reasonably find as aggravating factors that it took Elias “several years” to compile his collection of child pornography and/or that he viewed the child pornography “very frequently”. Both of those alleged aggravating factors were put forward by the Crown for the Court’s consideration.
[47] There is nothing in the agreed statement of facts that would support either one of those alleged aggravating factors.
[48] At its highest, the evidence as a whole suggests that Elias watched the child pornography approximately once per week and first stumbled upon online child pornography sometime after he started using a specific computer application in 2017 (page 3 of Dr. Gojer’s report marked Exhibit 4).
[49] These alleged aggravating factors not being agreed to by the offender, Elias is entitled to proof of them beyond a reasonable doubt. R. v. Richardson. I find that the evidence falls short of that standard of proof in this case, on these two points.
[50] The mitigating factors in this case include:
(i) the guilty plea, which plea was entered without any trial dates or pretrial applications dates being scheduled;
(ii) the absence of any criminal record;
(iii) the genuine remorse and regret that the offender has demonstrated;
(iv) the rehabilitative steps that the offender has taken since the date of his arrest; and
(v) the suitability of the offender to ongoing therapy and treatment and his commitment to that.
[51] I would add that there are two other factors that must be taken into account in our case, although they are not always viewed as mitigating factors, per se, but rather considerations that may help the court determine what a fit sentence may be in the particular case under review: (i) Elias’ mental illness before, during, and after the offence, and (ii) the truly devastating collateral consequences that Elias has suffered since the date of his arrest. R. v. Ellis, 2013 ONCA 739, at paras. 107, 116-122, and 195-201.
[52] On the evidence as a whole, particularly the presentence report, the report of Dr. Gojer, and the letter written by Coco Johnson, I find that Elias’ depression, his low self-esteem, his loneliness, his Body Image Disorder, and his pedophilic tendencies, which are indisputably all forms of mental illness, were the significant causal factors underlying the commission of this offence.
[53] The collateral consequences suffered by this offender have been extreme. He has lost everything except for his father. He genuinely blames himself for the death of his mother. He is entirely estranged from his siblings and their families. They have simply shut the doors to their lives on this offender. That is not meant as a criticism of anyone but simply a statement of fact. Deep shame and humiliation of the offender and his family are one thing, however, what has befallen Elias here is far beyond that.
[54] The Crown filed and relies upon the very recent decision of Bramwell J. in R. v. Sawatis, [2025] O.J. No. 6 (S.C.J.), a decision post-Pike, supra, principally in support of the proposition that certain factors like stigma and the good character of the accused are less significant in the sentencing of offenders for possession of child pornography offences.
[55] This Court would make several observations about the Crown’s reliance on that decision. First, as indicated above, the collateral consequences that have been suffered by Elias are much more concrete and far more significant than the type of generalized stigma referred to by Justice Bramwell at paragraph 25 of the decision. Second, this Court has not referred to or relied upon Elias’ prior good character as a mitigating factor in this case. Third, in the same paragraphs of Justice Bramwell’s decision, under the same heading about good character, employment, and stigma, Her Honour refers to an offender who “continues to engage in distorted thinking or minimization”; such an offender, however, is not at all our offender. In fact, the offender in Sawatis, supra had a prior criminal record for sexual interference with and sexual assault of a child, among other convictions, and he apparently learned nothing from his prior counselling and treatment program in Ottawa because he then went on to engage in a further criminal offence that victimizes children; that offender, I say again, is not at all our offender. That offender was described by Justice Bramwell as having “limited” prospects for rehabilitation. That, however, is not at all the evidence of the professionals in our case with regard to our offender. In fact, the offender before Justice Bramwell could fairly be summarized as being a total menace to the safety and sexual integrity of children; he even engaged in the surreptitious filming of his own father’s early teen stepdaughter. That type of person, however, is not at all our offender.
[56] One could understand why the offender in Sawatis, supra received a penitentiary sentence of three and one-half (3.5) years. That case, factually, is very different from ours.
V. What is a Fit Sentence for Elias?
[57] Sentencing is not a cookie-cutter industry. Very often, as here, a sentencing decision will have limited precedential value because of the uniqueness of the overall circumstances that informed it.
[58] The judgment of Chief Justice Wagner and Justices Brown, Martin, and Kasirer in R. v. Parranto, 2021 SCC 46, put it very well at paragraphs 9 through 12, set out below.
[59] In all of the circumstances, respectfully, I think that anyone who doubts the denunciatory and deterrent effect of the sentence imposed below has failed to appreciate its severity. The judicial interim release order coupled with the very strict sentence imposed below will mean that Elias will be under the thumb of the state for a total of more than eight (8) years. And he is now a convicted sex offender who must live with all of the requirements of the SOIRA order. And the subsection 161(1) Criminal Code order is for the maximum length, life, and it is very restrictive.
[60] The aggravating factors have been properly accounted for, in my opinion.
[61] At the same time, this sentence, on top of the severe collateral consequences already suffered by the offender, will enable him to enter a sex offender treatment program without delay and continue the path to rehabilitation.
[62] The mitigating factors have also been properly accounted for, in my opinion.
[63] I am satisfied that (i) a sentence of imprisonment of less than two years in duration is a fit one in this case, and (ii) that Elias’ service of the sentence of imprisonment in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.
[64] Taking the very helpful and binding guidance from Chief Justice Tulloch in the recent decision of the Court of Appeal for Ontario in Pike, supra, and acknowledging that the overall assessment in possession of child pornography cases will ordinarily result in a custodial sentence and not a conditional sentence, I believe that there exists here the presence of personal circumstances and mitigating factors that are sufficiently compelling to make a conditional sentence proportionate.
[65] A seriously mentally ill man with no criminal history has pleaded guilty to having amassed a very dense and extremely grotesque collection of child pornography and has now endured severe collateral consequences for his criminal actions, yet he has also been the lifeline for his ill father, and he has taken the road towards rehabilitation, and he is seen by all independent professionals who have dealt with him to be a good candidate for continuing to do so in the community.
[66] This is a truly unique set of circumstances. While not any one of these factors is necessarily exceptional, the constellation of them makes a conditional sentence order a proportionate response in this situation.
[67] For these reasons, this Court imposes on Elias a conditional sentence order for two (2) years less one (1) day in duration, to be followed by three (3) years of probation.
VI. Terms of the Sentence
[68] With respect to the conditional sentence order, all of the compulsory terms apply as set out in subsection 742.3(1) of the Criminal Code, and the following optional conditions also apply for the entire length of the sentence:
(i) you shall abstain from the consumption of drugs except in accordance with a medical prescription;
(ii) you shall abstain from the consumption of alcohol;
(iii) you shall abstain from the consumption of cannabis (marihuana);
(iv) you shall abstain from owning, possessing or carrying a weapon;
(v) you shall provide for the support or care of your dependant father;
(vi) you shall attend and actively participate in any counselling or therapy or treatment program that is recommended to you by your supervisor, including but not limited to sex offender treatment with Dr. Gojer or CAMH or another service provider recommended to you by your supervisor, and you shall not leave that counselling or therapy or treatment program without the prior written approval of your supervisor, and you shall sign any releases of information demanded of you by your supervisor in order to monitor your progress with the counselling or therapy or treatment program; and
(vii) you shall obey a curfew by remaining inside your home or on the property of your home, including any outbuildings, 24 hours per day, 7 days per week, except (i) for any reason, with the prior written permission of your supervisor, which written permission shall be carried on your person at all times, (ii) for medical emergencies involving you or your father or one of your siblings, (iii) for required court attendances, (iv) for pre-scheduled meetings with your legal counsel, (v) for meetings with your supervisor, (vi) for attendance at counselling, therapy or treatment, and (vii) on each Saturday, between 12:00 noon and 3:00 p.m., for obtaining the necessities of life for you and/or your father; and all of these exceptions include direct travel to and from.
[69] With respect to the probation order, all of the compulsory terms apply as set out in subsection 732.1(2) of the Criminal Code, and the following optional conditions also apply for the entire duration of the order:
(i) you shall report to a probation officer within two working days of the commencement of the period of probation and thereafter as directed by the probation officer;
(ii) you shall remain within the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from the court or the probation officer;
(iii) you shall abstain from the consumption of drugs except in accordance with a medical prescription;
(iv) you shall abstain from the consumption of alcohol;
(v) you shall abstain from the consumption of cannabis (marihuana);
(vi) you shall abstain from owning, possessing or carrying a weapon;
(vii) you shall provide for the support or care of your dependant father;
(viii) you shall attend and actively participate in any counselling or therapy or treatment program that is recommended to you by your probation officer, and you shall not leave that counselling or therapy or treatment program without the prior written approval of your probation officer, and you shall sign any releases of information demanded of you by your probation officer in order to monitor your progress with the counselling or therapy or treatment program; and
(ix) you shall obey a curfew by remaining inside your home or on the property of your home, including any outbuildings, between the hours of 10:00 p.m. and 6:00 a.m., 7 days per week, except (i) for any reason, with the prior written permission of your probation officer, which written permission shall be carried on your person at all times, and (ii) for medical emergencies involving you or your father or one of your siblings; and both of these exceptions include direct travel to and from.
[70] Elias is cautioned by this Court that the conditional sentence order is a jail sentence that is served in the community. Any transgression on the part of the offender will come before this Court, and if a breach is found it is very likely that the Court will order that Elias shall serve the entire balance of the conditional sentence order in a correctional facility.
VII. Summary of Orders
[71] In summary,
(i) the forfeiture order for all seized media has been signed by this Court;
(ii) a secondary DNA order is issued;
(iii) a SOIRA order is issued for twenty (20) years;
(iv) a subsection 161(1) Criminal Code order is issued for life, under all of paragraphs (a), (b), (c), and (d), with the specific wording outlined above in these reasons;
(v) a conditional sentence order is imposed for a period of two (2) years less one (1) day;
(vi) to be followed by a period of probation for three (3) years; and
(vii) the victim fine surcharge is not waived but is imposed, and Elias is granted 60 days to pay the surcharge in full.
[72] When a sentencing judge pays particular attention to the severe wrongs and harms that are caused by those who possess child pornography, their degree of moral blameworthiness, and Parliament’s prioritization of deterrence and denunciation, which the judge must do, such an assessment will ordinarily result in a custodial sentence and not a conditional sentence. Often, when prosecuted by indictment, such an assessment will result in a penitentiary sentence.
[73] The individualization of the sentencing process cannot be lost, however. In this case, on these facts, with this offender, in these circumstances, a conditional sentence is a fit disposition.
[74] I wish to thank Ms. McGuigan and Mr. Guerts and Mr. Gilbert for their very hard work and for their most helpful submissions at the sentencing hearing.
[75] Mr. Elias, I hope that you get the help that you desperately need.
Justice Peter Conlan
Released: February 19, 2025