WARNING

The Court hearing this matter directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community.
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

COURT FILE NO.: CR20-46
DATE: 2025/01/02
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
JOHNNY SAWATIS, Defendant

E. Evans, Counsel for the Crown
G. Terrance, Counsel for the Defendant
HEARD: December 14, 2023 and September 6, 2024

DECISION ON SENTENCE

Bramwell, J.

Introduction

[1] On December 14, 2023, Mr. Sawatis pleaded guilty to one count of possessing child pornography. A Pre-Sentence Report, Sexual Behaviours Assessment and Gladue Report were ordered. All of those reports were received by September 2024 and counsel made sentencing submissions on September 6, 2024. This is my decision with respect to the appropriate sentence for Mr. Sawatis.

[2] In addition, an issue arose during the evidentiary portion of the sentencing proceeding. The Crown tendered an encrypted USB drive containing copies of all the child pornography seized from Mr. Sawatis’ device and advised that she would ask me to view at least some of the images as part of the sentencing process. I required counsel to make submissions on the issue of whether the Court must or should view images of child pornography. After hearing those submissions, I ruled that I would view a sample of the images that was agreed between counsel to be representative of the types of images possessed by Mr. Sawatis. I indicated that I would release my reasons for that ruling together with my decision on sentence.

[3] I start these reasons by setting out why I granted the Crown’s request that I view a representative sample of the images in question. My decision regarding sentence follows that.

Reasons for Ruling on Evidentiary Issue

The Issue

[4] The evidence admitted by Mr. Sawatis on the plea included the Crown Brief Synopsis prepared by the police, the Image Summary Report prepared by the Officer in Charge and a sealed, encrypted and password protected USB drive which contains copies of the 2 videos and 6390 still images of child pornography found on Mr. Sawatis’ device. The USB drive was filed as a lettered exhibit, for identification purposes only, pending argument and my ruling on whether I must view the images contained on it.

[5] I advised the Crown that I did not consider it a foregone conclusion that I would or was required to actually view any of the images of internet child pornography found on Mr. Sawatis’ device. I required submissions on the issue because I was aware of, and provided to counsel, a developing line of authority in which judges have, in certain cases, refused to view the images, finding it unnecessary to do so to properly sentence the offender.

The Crown’s Position

[6] At the argument of the evidentiary issue, the Crown advised that she was not proposing that I view all 6390 still images and 2 videos on the USB drive that had been tendered. Rather, she intended to work with the Officer in Charge to select five to ten images that would be a representative sample of the spectrum from the least invasive or intrusive images up to the most invasive or intrusive found in Mr. Sawatis’ collection. The Crown could not advise at the time of argument whether the images that she proposed to show would be the same seven images described in the Image Summary Report that was filed as part of the evidence on the plea. On a later date and prior to my ruling on this issue, the Crown clarified her position and advised that while there would be some overlap between the images described in the Image Summary Report and those appearing in the representative sample that she would seek to tender, there would be additional images presented that were not described in the Image Summary Report.

[7] The Crown provided authorities supporting her position that I must view the images because they are highly relevant and the probative value is not outweighed by their prejudicial effect. The Crown relied on the decision of the Ontario Court of Appeal in R. v. P.M., 2012 ONCA 162, [2012] O.J. No. 1148 in arguing that the judge should view this kind of evidence if asked to do so. The Crown also provided a number of cases in which judges have essentially found that it is a judge’s duty to view this type of evidence in order to properly understand the nature of the images and the level of depravity depicted within them. The Crown argued that this is a contested sentencing hearing in which the parties are far apart on the appropriate sentence and, given that, the Court should view the best evidence of what images Mr. Sawatis was looking for on the internet, downloading and saving.

The Defence Position

[8] Counsel for Mr. Sawatis relied on the authorities that I provided to counsel and argued that I should not view the images because Mr. Sawatis did not make or produce the child pornography in question, nor did he purchase it or make it available to others or use it to lure a child. He suggested that it would interfere with the rehabilitative steps already taken by Mr. Sawatis to view the images in open court, on the record, as I indicated would happen if I decided to view the images. Mr. Sawatis argued that it is retraumatizing and revictimizing of children to have these images viewed over and over, including in court. Lastly, he argued that there would be an abundance of information available to the Court for sentencing purposes as a result of the various reports that were ordered.

Decision

[9] After considering counsel’s submissions and reviewing the authorities carefully, I ruled that I would view a representative sample of the images.

[10] In my view, the starting point for the analysis as to whether the Court must view images of child pornography is the guidance provided by the Ontario Court of Appeal in R. v. P.M., 2012 ONCA 162 stated as follows [1]:

Section 723 of the Criminal Code provides that before determining the sentence, the court ‘shall’ give the prosecutor and the offender the opportunity to make submissions with respect to any facts relevant to the sentence imposed, and ‘shall’ hear any relevant evidence presented by the prosecutor and the offender. Further, s. 276.1 provides that in determining the sentence, a court “shall” consider any relevant evidence placed before it. Nevertheless, in my view, a trial judge at sentencing should exclude otherwise relevant evidence proffered by the Crown where the prejudicial effect of the evidence outweighs its probative value.

[11] In the case before me, the prosecutor tendered a representative sample of the images of child pornography that were found on Mr. Sawatis’ device. That evidence was clearly relevant, and I was required to view it unless the prejudicial effect of it outweighed its probative value.

[12] The deciding factor in the case before me was that the representative sample that the Crown prepared and that defence agreed fairly represented the low, mid and high watermarks of the severity or seriousness of the acts depicted, was not otherwise in evidence. The Image Summary Report did not give written descriptions of the same images that the Crown tendered in the representative sample. I did not have written descriptions of the images presented in the representative sample at the time I made my ruling that I would view the images. [2]

[13] Ultimately, while I understand and agree with many of the concerns raised by the judges who wrote the decisions in R. v. Wickramasinghe, 2022 ONCJ 331, R. v. Subia, 2022 ONSC 1693, R. v. Kaardal, 2022 ONCJ 441, R. v. Marratt, 2019 ONCJ 618, and R. v. GKS, 2019 ABPC 75, on the facts of this case, I find that I was required to view the images tendered by the Crown in the representative sample because at the time I made the ruling, there was no other evidence before me about the spectrum of intrusiveness depicted in the images in Mr. Sawatis’ very large collection.

Sentencing

The Parties’ Positions

[14] The Crown seeks a jail sentence of 3.5 to 4 years. Counsel for Mr. Sawatis argues that a conditional sentence of 2 years, less one day, followed by 3 years of probation is appropriate.

[15] A conditional sentence is a jail sentence that is served in the community instead of in a custodial institution and it usually has a house arrest component.

The Law

[16] The decision in R. v. Pike, 2024 ONCA 608, released by the Ontario Court of Appeal in August 2024 is now the leading authority regarding sentencing for child pornography offences in Ontario. In it, the Court of Appeal provides clear guidance as to the relevant sentencing principles, including some offence specific potentially aggravating and mitigating factors, as well as the governing range of sentence for these offences. I turn now to these sentencing principles and their application to the case before me.

The Distinct Wrongs and Harms Caused by Possession of Child Pornography

[17] As discussed by the Court of Appeal in R. v. Pike, there are six distinct wrongs and harms that are inherent in the possession of images of child pornography. They are as follows:

1. People who possess images of child pornography violate children’s dignity.
   The images cannot be made without the exploitation and abuse of the children depicted in them. They are crime scene photos. Every time the permanent record of the child’s exploitation is viewed, that child is treated as a “voiceless, absent object” and the images are treated as property to collect, like trading cards. This is an assault on the dignity of the children depicted in the images. It offends their rights and is contrary to the basic principles of our law. [9]

2. People who possess images of abused and exploited children directly invade children’s privacy.
   The privacy violation is extreme. It involves the uncontrolled disclosure of the affected children’s abuse and exploitation. Offenders repeatedly violate this privacy interest by getting the material and then organizing and viewing it. The permanent nature of the photos and videos makes the violation even worse because the images can be accessed, studied and manipulated over and over again. [10]

3. People who possess child pornography inflict severe emotional harm on children.
   As the Supreme Court of Canada set out, at length, in R. v. Friesen, 2020 SCC 9, much more is known by our society collectively now than in decades past about the many long-term physical and emotional harms that sexual abuse causes the children who are victims of it. When that sexual abuse is recorded, the violation of that child becomes a continuing violation each time the recording is viewed. People who have been victimized as children through sexual exploitation have their journey towards recovery jeopardized significantly when they learn that there is a record of their abuse that unknown other offenders have accessed and can continue to view. This has been described as a “slow acid drip of trauma” for these victims as their wounds are reopened again and again. [12]

4. People who possess child pornography instigate the production and distribution of child pornography and, thus, the sexual abuse and exploitation of children.
   Those who possess child pornography create and support the market for child pornography and thereby lead makers of child pornography to continue to abuse existing victims and seek out new victims in order to meet the appetites of those who seek out new material. [13]

5. Possessing and viewing child pornography can incite perpetrators to commit and facilitate their commission of other sexual offences against children.
   Collectors of child pornography begin to deny and minimize the wrongfulness of the sexual exploitation of children. They may show child pornography to children in order to try to normalize the conduct depicted in it for those children in the hopes of lowering the inhibitions of the children in order to sexually abuse those children directly. In doing so, offenders conscript the victims shown in the recordings in the abuse of new victims. [14]

6. People who possess child pornography perpetuate pernicious messages that attack children’s humanity and equality.
   Our laws dictate that children have “absolute dignity and infinite value” and deserve equal respect. Our society’s future depends on respecting these principles so that children can develop normally and in a healthy way in order to become contributing adults. We no longer treat children as the property of adults to do with what they wish.
   Child pornography turns these values on their head and “perpetuates lies about children’s humanity.” It lies to children by making it seem to children as though sexual acts involving them are normal and acceptable. It lies to adults by seeming to make children participate willingly in their own abuse. It falsely suggests that children are capable of consenting to sexual activity with adults or that their exploitation is not a real crime. [15]

The Gravity of the Offence

[18] Possession of child pornography is a grave offence because it causes the above-noted distinct wrongs and harms. “People who possess child pornography participate in the producer’s initial sexual abuse of children through the market that their demand creates, and drive demand for even more abuse. They also independently abuse those children by violating their dignity and privacy, which causes them severe emotional harm.” [16]

[19] That possession of child pornography is considered a grave offence under our law is reflected in the fact that the maximum sentence for possession of child pornography, when prosecuted by indictment has been doubled twice by Parliament in the last 30 years to where it now stands at 10 years. It is also reflected in s. 718.01 of the Criminal Code which directs judges sentencing offenders in these cases to prioritize denouncing the conduct and deterring both the specific offender before the Court as well as others who might think about committing the same offence. [17]

[20] In sentencing offenders for possessing child pornography, the Court of Appeal instructs that judges must take a child-centered approach that focusses on the wrongs and harms inflicted on the child victims of the offence. While it is important to consider the personal circumstances, mitigating factors and prospects for rehabilitation of a particular offender, those aspects cannot take priority over denunciation and deterrence and the focusing of attention on the wrongs and harms associated with the offending behaviour. [18]

The Degree of Responsibility of the Offender

[21] A sentencing judge must consider the gravity of the offence and the degree of responsibility of the offender. As discussed above, possession of child pornography is always a grave offence and must be treated as such. While every offender is different and his circumstances must be considered, there are some myths that the Court of Appeal finds have infected the sentencing analysis in past cases.

[22] It is a myth that the possession of child pornography is a harmless, victimless, accidental and passive crime that is caused by medical and psychiatric conditions or is an isolated occurrence. [19] As the Court of Appeal noted:

…possession is deliberate, not accidental or passive. This crime is “committed specifically by choice[s] to break down the legal barriers against sexually exploiting children by acquiring and maintaining the material and expanding their collection. Courts thus should not recast people who possess child pornography as victims of its easy availability. Likewise, while courts can consider mental illnesses that contribute to people’s decisions to possess child pornography, they should not assume that psychiatric conditions like pedophilia compel those people to possess child pornography. Both forms of minimization wrongly excuse people who possess child pornography from responsibility for their choices and undermine Parliament’s prioritization of deterrence and denunciation. [20]

[23] Possession is not a momentary lapse or an isolated act. Offenders who keep child pornography don’t just access it once but retain it, often for significant periods of time or indefinitely. They often make the choice to get more material and to organize it and repeatedly view it. The children depicted in the materials are victimized every time they choose to repeatedly view it. [21]

[24] In summary, although there may be important personal circumstances and mitigating factors that need to be considered in sentencing an offender, the possession of child pornography is always a choice, and it is a choice that is always considered to be very morally blameworthy because it is a choice to repeatedly participate in the victimization of vulnerable children.

Aggravating and Mitigating Factors

[25] In R. v. Pike, the Court of Appeal clarified and updated the non-exhaustive list of factors that sentencing judges should consider as aggravating and mitigating factors in sentencing offenders for possessing child pornography. That list is as follows:

1. The size and nature of the collection
   The number of images, the number of real child victims, the degree of organization of the collection and the ratio of photographs to videos in the collection are all important considerations. Larger collections are generally accepted to involve a higher number of individual children being victimized. A more organized collection is generally accepted to indicate a higher level of interest on the part of the offender in the collection. Videos are more aggravating than still photos because they are more realistic and graphic and therefore involve even more harmful and invasive privacy violations. [22]

   Turning to the case before me, I find that Mr. Sawatis’ collection, at 6390 photographs, is properly characterized as huge. I reject the submission made by counsel for Mr. Sawatis that the collection is “relatively small.”

   While there was no direct evidence tendered as to the number of different children depicted, I am confident that a collection of this size leads to a clear inference that hundreds, if not thousands, of different children were depicted. Had the images all been of a small group of children, I believe that would have been apparent to and reported by the investigator, who confirmed in his evidence before me that he viewed each image.

   There is no evidence before me as to the level of organization of Mr. Sawatis’ collection. There is evidence that he downloaded the images to his devices but there is no evidence that it was organized in any way once downloaded.

   While the fact that there were two videos of child pornography present in Mr. Sawatis’ collection was admitted on the guilty plea, at the sentencing, the Crown indicated that it was no longer relying on those two videos. The investigator testified that, having reviewed those videos again in preparing to testify at the sentencing hearing, he was no longer confident that they met the definition of child pornography. Mr. Sawatis will therefore be sentenced as though his collection only consisted of still images, with no videos.

   In summary, Mr. Sawatis’ collection was huge, and I infer that it contained images of the sexual exploitation of a huge number of different children. This is a significant aggravating factor. There is no evidence that his collection was organized, and it was photographs, with no videos. These are therefore two potential aggravating factors that are not present in Mr. Sawatis’ case.

2. The seriousness of the collection’s nature
   This relates to the degree of harmfulness and wrongfulness in the activity shown in the images. If the offender possessed images that show more physically intrusive activities that feature violence beyond the violence that is inherently involved in the sexual abuse of children, that is considered an aggravating factor. It is important to note that such aggravating violence does not depend on a depiction of penetration of the child. Recordings of sexualized posing are serious because they document “horrifying and profoundly harmful sexual exploitation.” This is so even if the child victim appears to participate willingly. [23]

   In the case before me, the sample of images that was presented in court and was agreed by the parties to be representative of Mr. Sawatis’ collection undeniably depicts images that are predominantly extremely physically intrusive or graphic depictions of overtly sexualized posing. Of the eleven images tendered in the representative sample, only two could arguably be characterized as relatively mild. One is of a young child in her underwear and the other is of two young children dressed from the waist up but with their buttocks visible. The remaining nine images are graphic, close-up views of the genitalia of children who have clearly been posed for maximum exposure of their genitals. One image that is particularly haunting depicts a naked adult woman penetrating the vagina of a girl who is 8-10 years old with an object while the child simulates breast feeding. The adult woman smiles down at the child as if to convey to the child that she has nothing to worry about. The depth of the breach of trust that is so clearly depicted is unfathomable. Five of the images depict the vaginal or anal penetration of children between infancy and 3-5 years of age by adult male penises.

   The investigator testified that the majority of the children in the images of child pornography possessed by Mr. Sawatis were 10-12 years old and under.

   The harmfulness and wrongfulness of the activities shown in the vast majority of the images that were presented to me as being representative of Mr. Sawatis’ collection are extreme. This is a significant aggravating factor.

3. Whether the collection depicts real children
   Some offenders collect stories or virtual images that do not show real children. Possession of this material is against the law because it incites and facilitates sexual offences against children and helps to spread the lies and myths that allow sexual abuse by adults of children to continue. It may also act as a gateway to material depicting real children. However, it is less serious for sentencing purposes because the making of it does not victimize real children. [24]

   All of the images in the representative sample tendered in Mr. Sawatis’ case were of real children. There has been no evidence tendered before me that any of the material Mr. Sawatis possessed depicted anything other than real children. This is an aggravating factor.

4. The duration, frequency, collaboration with other offenders, planning, organization, sophistication and participation in the child pornography subculture
   The longer the offender has possessed the child pornography and the higher the frequency with which it was downloaded or viewed, the more the moral blameworthiness of the offender’s conduct increases and the more his behaviour can be seen to be entrenched. Collaboration with other offenders and planning, organization and a high level of sophistication in accessing the materials are aggravating factors because offenders who do this are causing greater harm and trying to avoid detection. Further, offenders who share information and materials tend to support and encourage each other in their offending behaviour.

   In the case before me, all that is known is that child pornography materials were in Mr. Sawatis’ Google account as of August 2019 and that the collection of 6390 images was seized by the police in the fall of 2019. There is no evidence before me that Mr. Sawatis possessed child pornography for a long time. There is no evidence before me regarding the frequency with which Mr. Sawatis accessed the child pornography material. The synopsis, which was admitted as part of the guilty plea, indicates that the Google account in Mr. Sawatis’ name that contained the child pornography that triggered the notification of the police by Google and the subsequent investigation, was not logged into between July 28, 2019 and August 19, 2019.

   I do not accept the submission made by counsel for Mr. Sawatis that this is evidence that Mr. Sawatis was not viewing child pornography during that time period and was therefore not a compulsive viewer of child pornography. All this evidence demonstrates is that Mr. Sawatis’ account on Google that contained the images that triggered the investigation in the summer of 2019 was not logged into for a roughly two-to-three-week period.

   Mr. Sawatis had 6390 images stored on his devices. There is no evidence as to how often or during exactly what time period he looked at any or all of those images. I find that there is simply an absence of direct evidence on this point though there is an inference to be drawn that the only reason a person would possess such a vast collection of highly illegal images, with the clearly attendant risk inherent in doing so would be in order to view it.

   Mr. Sawatis has given various excuses for his possession of child pornography. He told Ms. Swamp, the author of the Gladue Report, that he was looking for adult pornography and was curious about nudist sites. He said he wanted to “understand” child pornography. Mr. Sawatis told Mr. Jock, the author of the Pre-Sentence Report, that he searched for nudist sites in order to understand how a family could engage in nudity together. He said that these searches provided opportunities to “engage in” other websites that offered child pornography. He told Mr. Jock he was “trying to understand what the world was all about.” Mr. Sawatis told Dr. Gojer, the author of the Sexual Behaviours Assessment, that he accessed child pornography to try to understand why he sexually abused his niece and to try to “understand” child pornography.

   These excuses are examples of precisely the type of minimizing and myth-based reasoning that the Court of Appeal warned against in R. v. Pike, as discussed earlier in these reasons. Mr. Sawatis did not just stumble across child pornography in an effort to understand the world and his place in it. He chose to go looking for images of adults having sex with children. He found 6390 of those images. He downloaded them and saved them and viewed them, by his own account, for months. While Mr. Sawatis claims that he did not use the images for his own sexual gratification, that is irrelevant. He possessed them and, in doing so, contributed to the slow acid drip of trauma for the victims of the sexual abuse depicted within them.

   There is no evidence before me that Mr. Sawatis collaborated with other offenders, planned or organized his materials or accessed them in a sophisticated way. There is no evidence that he participated in the child pornography subculture. This is an aggravating factor that is not present in this case.

5. The absence of aggravating factors is not mitigating
   An offender may not have been involved in the production or distribution of child pornography. The images he possessed may not depict very young children. He may not have paid for the child pornography he collected. None of this is mitigating. “Courts must still address the distinct wrongs and harms inherent in the possession of child pornography and avoid the trap of imposing disproportionately low sentences in cases involving older preteen and teenage children. Courts must also recognize that people who do not pay for the child pornography they possess still motivate those producers of child pornography who seek to win respect rather than money.” [25]

   Counsel for Mr. Sawatis argued that the fact that there is no evidence that he paid for the child pornography that he possessed or gained anything financially from possessing it was mitigating. He also argued that the lack of evidence that Mr. Sawatis joined any chat rooms to participate in the child pornography subculture or produced any child pornography was also mitigating. Neither of these are mitigating factors. They are simply other potentially aggravating factors that are not present in this case.

6. Good character, employment, and stigma are less significant factors in sentencing people who possess child pornography and cannot function as disguised class discrimination.
   Prior good character and a history of employment should be given limited weight in sentencing for child pornography offences. Stigma also receives less weight because it is a predictable consequence of conviction for these offences. Lastly, expressions of remorse or evidence of the offender having insight into the effects of their offending behaviour should be assessed in terms of whether it is insight and remorse expressed about the harms done to the real children who were victimized by the offender’s behaviour. If the offender continues to engage in distorted thinking or minimization, expressions of remorse or insight should be given less weight. [26]

   Mr. Sawatis has a criminal record for sexual interference and sexual assault on a person under the age of 16. This is a significant aggravating factor. In March, 2014, when he was 27-years-old, Mr. Sawatis was sentenced to a 90-day intermittent jail sentence, followed by 3 years of probation for touching his then 11-year-old niece on her buttocks and inner thigh and attempting to touch her vagina as she lay on her stomach, asleep in her bed, until she was awoken by Mr. Sawatis touching her. [27] In 2016, Mr. Sawatis was sentenced to 90 days jail for failing to attend court, possession of cannabis and failing to comply with his probation order because he was in the company of a person under the age of 16 years [28].

   Mr. Sawatis attended counselling at the outpatient treatment program at the Royal Ottawa Hospital both before and after his sentencing for the sexual assault on his niece. [29] It was in order to support his continuing with this program that the intermittent jail sentence was ordered in 2014. There is no reference to any records or results from this treatment program in Dr. Gojer’s report.

   In her very thorough Gladue Report, Ms. Swamp refers to a counselling group that Mr. Sawatis participated in as part of his probation conditions on the sexual assault conviction. Mr. Sawatis told Ms. Swamp that what the program taught him was “messed up.” He said he was uncomfortable hearing other offenders share their stories and he “did not want to be in a room with a bunch of people like that” though he recognized that he is “not in any better situation [himself]” [30]

   I find it concerning that Mr. Sawatis has had the benefit of professional intervention in the past, after a hands-on sexual offence against a child, through the Royal Ottawa Hospital’s outpatient treatment program and through counselling offered by probation. Despite that professional intervention, he has gone on to commit the very serious offence of possessing child pornography. This indicates to me that Mr. Sawatis’ prospects for rehabilitation are limited.

   While Mr. Sawatis has been engaged in counselling since January 2024, the letter confirming those services from Ms. McKay [31] indicates that Mr. Sawatis reached out to “get support with ongoing life stressors, as well as to develop healthy coping and decision-making skills. It is not clear to me that Ms. McKay is even aware of the fact that Mr. Sawatis has been convicted of possessing a huge collection of child pornography. To suggest that Mr. Sawatis’ offending behaviour is as a result of the stress of life or unhealthy coping or decision-making skills is, in my view, an example of the minimizing language and attitudes that the Court of Appeal cautions strongly against in R. v. Pike.

   I also find it concerning that, as he reported to the police and to Dr. Gojer, the forensic psychiatrist who completed the Sexual Behaviours Assessment, Mr. Sawatis surreptitiously filmed his father’s 13-year-old stepdaughter walking around outside his father’s house. He also reported to Dr. Gojer that he video-recorded one other young girl passing by outside of his home [32]. He told the police he took videos of multiple random young girls passing by his home. [33]

Mitigating Factors Specific to Mr. Sawatis

1. Mr. Sawatis is an Indigenous person
   Section 718.2(e) of the Criminal Code provides that all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. As indicated in the Gladue Report prepared by Ms. Swamp, Mr. Sawatis is a 38-year-old Indigenous man from the Mohawk Territory of Akwesasne.

   As detailed in the Gladue Report, Mr. Sawatis’ Indigenous community has been deeply affected by measures taken by the government, throughout the community’s history, to assimilate the community by eradicating Mohawk culture, values and heritage. As a member of the Mohawk Territory of Akwesasne, Mr. Sawatis is “most likely to be affected by multi-generational trauma, which affected his elder generations and community members,” according to Ms. Swamp.

   Further, as also detailed by Ms. Swamp in the Gladue Report, Mr. Sawatis has been directly impacted by some of the residual effects of the government’s historical assimilation policies. His father grew up in an abusive household, attended an Indian Day School and struggled for acceptance within his community as a result of having one Indigenous and one non-Indigenous parent. Mr. Sawatis was diagnosed with Fetal Alcohol Spectrum Disorder as a result of his mother, who is not Indigenous, consuming alcohol while pregnant with him. Mr. Sawatis suffered significant abuse at the hands of his mother while he was a baby and was raised primarily by his father, as a single parent, due to his mother’s alcoholism. Mr. Sawatis has not had contact with his mother since he was 14-years-old. Like his father, Mr. Sawatis has struggled to be fully accepted by his community because one of his parents was not Indigenous. This perception of a lack of acceptance led him to reside outside of the Territory.

   One positive factor in Mr. Sawatis’ life is his father, with whom he lives. His father has attended court with Mr. Sawatis throughout this proceeding and continues to support and stand by him despite the fact that a significant rift has developed in the family as a result of Mr. Sawatis’ prior conviction for sexually assaulting his niece.

   It is clear that there are unique systemic and background factors relating to Mr. Sawatis and the fact that he is Indigenous that have played a part in bringing him before the Court. This is a significant mitigating factor.

2. Mr. Sawatis pleaded guilty
   Mr. Sawatis pleaded guilty thereby sparing the Crown from having to use scarce public resources to prosecute him through a trial. This is a significant mitigating factor.

3. Mr. Sawatis has deficits associated with his mother’s alcohol use during pregnancy and other cognitive deficits
   In his August 16, 2024, report, Dr. Gojer states at page 15:

   By history, it appears that Mr. Sawatis is a product of alcohol related brain impairment caused by his mother’s use of alcohol during her pregnancy with him. While a diagnosis of Fetal Alcohol Syndrome cannot be made at this time, his present condition is better understood as Fetal Alcohol Effects.

   Mr. Sawatis has social skills deficits and ability to take care of his emotional, financial and sexual needs in an appropriate manner (sic). By history he has suffered from an Attention Deficit Disorder and now presents with a learning disability and likely limited intellectual functioning. In this context he has developed pedophilic interests and likely suffers from a problem with Non-Exclusive Pedophilia. This diagnosis refers to individuals who have an attraction to adults but also to children too.

   Later in his report, Dr. Gojer indicates that the results of Mr. Sawatis’ intellectual function testing showed that he does not have an intellectual disability but does suffer from some learning and attention deficits.

   While Dr. Gojer’s report, the Gladue Report and the Pre-Sentence Report all support the notion that Mr. Sawatis suffers from some cognitive deficits that affect his ability to maintain employment and social connection, it is not clear to me that there is a link between these deficits and his serious criminally offending behaviour in possessing child pornography. While this is a mitigating factor, I do not consider it to be a significant one.

   I note that Dr. Gojer commented, in the Sexual Behaviours Assessment, under the heading “Recommendations” that, in his opinion, Mr. Sawatis requires sex offender counseling in a specialized setting that uses individual and group therapy. He pointed to the Sexual Behaviours Clinic at the Royal Ottawa Hospital. This is exactly the intervention that Mr. Sawatis had the benefit of in 2014 before and after his conviction for sexually interfering with his 11-year-old niece. That intervention did not prevent him from accessing child pornography five years later.

   Dr. Gojer went on to opine that Mr. Sawatis is “likely to do very poorly in a jail setting and will be easily picked on and not be able to defend himself.” I give no weight to this aspect of Dr. Gojer’s report. It is not for Dr. Gojer to comment on whether or not an offender should go to jail. Further, there is no evidence before me that correctional authorities cannot or will not address Mr. Sawatis’ needs, including his need for safety in an institution. The Court of Appeal addressed similar concerns when dealing with the health issues of the offender in R. v. Pike. [34]

The Governing Range of Sentence for Possession of Child Pornography

[26] In R. v. Pike, the Court of Appeal updated the sentencing range for possession of child pornography to reflect the application of the child-centered approach mandated by the Supreme Court of Canada in the decision in R. v. Friesen, 2020 SCC 9 and to reflect the significant legislative increases to the maximum sentence available.

[27] The bottom line is that the Court of Appeal has now given clear guidance to sentencing judges that while the upper end of the range for sentencing for possession of child pornography was, until recently, three-and-a-half-to-four years, it is now five years. Further, the Court of Appeal affirmed that three-or four-year sentences will be imposed or affirmed on appeal, even in cases lacking significant aggravating factors and with significant mitigating factors.

The Appropriate Sentence for Mr. Sawatis

[28] I find that the fact that Mr. Sawatis is an Indigenous person is a significant mitigating factor, as is his guilty plea. That being said, given that denunciation and deterrence are the primary objectives of sentencing for child pornography offences and given the extremely serious nature of the offence and the violence involved in the victimization of the exploited children who appear in the images, I find that this is a case in which the practical reality is that the sentence of imprisonment for Mr. Sawatis as an Indigenous offender is close to or the same as the sentence that a non-Indigenous offender could expect to receive [35]. This is particularly so given the aggravating factors present in Mr. Sawatis’ case.

[29] I find that the huge size and extremely serious nature of the collection that Mr. Sawatis intentionally amassed and kept are significantly aggravating factors. His prior conviction for a hands-on sexual offence against a child is also highly aggravating.

[30] Mr. Sawatis violated, in a most egregious way, the privacy and dignity of each child depicted in each of the 6390 images he possessed each time he looked at each image. He chose to engage in that conduct. His choice to do so must be denounced in the strongest of terms. Mr. Sawatis must also be deterred, and anyone else who, like him, thinks to turn to images of children being violently sexually abused for his own gratification, that such conduct will carry severe consequences.

[31] I find, after considering carefully all of the evidence that was tendered by the parties on the guilty plea and the sentencing as well as the authorities filed and the submissions made by both counsel, that the appropriate sentence in this case is one of three and a half years in the penitentiary.

[32] Given that a conditional sentence is not an available option for sentences of two years in jail or more, it is not an available sentence in this case.

[33] There will also be a number of ancillary orders as follows:

1. A DNA Order pursuant to s. 487.051(1). Possession of child pornography is a primary designated offence;
2. A weapons prohibition pursuant to s. 109 for a period of 10 years;
3. A no-contact order pursuant to s. 743.21. During the custodial period of your sentence, you are not to communicate directly or indirectly with any person under the age of 18 years;
4. An order pursuant to s. 161 that begins on the date you are released from incarceration and will be in place for 20 years. This order will prohibit you from attending a public park or public swimming area where persons under the age of 16 years are present or reasonably expected to be present or a daycare centre, schoolground, playground or community centre. It will also prohibit you from seeking, obtaining or continuing any employment, whether or not it is paid employment, or becoming a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years. You will also be prohibited from having any contact, including communicating by any means, with any person under the age of 16 years unless you are in the physical presence of your father or any other adult designated by the court and you will be prohibited from using the internet or other digital network unless you are under the supervision of your father or any other adult designated by the court;
5. An order requiring you to comply with the Sex Offender Information Registration Act, pursuant to s. 490.012(1) for a period of 20 years pursuant to s. 490.013(2)(b); and
6. Pursuant to s. 743.2, I order that a copy of my sentencing decision as well as the Pre-sentence Report, the Gladue Report and the Sexual Behaviours Assessment are to be forwarded to the Correctional Service of Canada.

The Honourable Justice Lia Bramwell
Released: January 2, 2025

Endnotes

[1] R. v. P.M., 2012 ONCA 162, [2012] O.J. No. 1148 (C.A.) at para. 25.
[2] When the representative sample of images were viewed in court, the Crown also provided a written summary of what is depicted in each image. I was not aware that that was the Crown’s intention when I ruled that I would view the images.
[3] R. v. Wickramasinghe, 2022 ONCJ 331
[4] R. v. Subia, 2022 ONSC 1693
[5] R. v. Kaardal, 2022 ONCJ 441
[6] R. v. Marratt, 2019 ONCJ 618
[7] R. v. GKS, 2019 ABPC 75
[8] R. v. Pike, 2024 ONCA 608
[9] R. v. Pike, supra, at para 147
[10] R. v. Pike, supra, at para 148
[11] R. v. Friesen, 2020 SCC 9
[12] R. v. Pike, supra, at paras 149-150
[13] R. v. Pike, supra, at para 151
[14] R. v. Pike, supra, at paras 152-153
[15] R. v. Pike, supra, at para 155
[16] R. v. Pike, supra, at para 157
[17] R. v. Pike, supra, at paras 158-159
[18] R. v. Pike, supra, at para 160
[19] R. v. Pike, supra, at para 161
[20] R. v. Pike, supra, at para 165
[21] R. v. Pike, supra, at para 164
[22] R. v. Pike, supra, at para 167
[23] R. v. Pike, supra, at para 168
[24] R. v. Pike, supra, at para 169
[25] R. v. Pike, supra, at para 171
[26] R. v. Pike, supra, at paras 172-174
[27] Witness statement of S.S. dated Jan. 2, 2014, admitted on guilty plea.
[28] Report of Dr. Gojer dated Aug. 16, 2024, page 6.
[29] Transcript of sentencing before Giamberardino, March 31, 2014, page 1, line 27-31.
[30] Gladue Report of Darilee Swamp dated March 28, 2024.
[31] Letter of Ashley McKay dated August 27, 2024.
[32] Report of Dr. Gojer dated August 16, 2024, pages 5-6.
[33] Crown Brief Synopsis, page 3.
[34] R. v. Pike, supra, at para. 190.
[35] R. v. Gladue, [1999] 1 S.C.R. 688; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207.