Court File and Parties

Court File No.: CR-25-0004 Date: 2025-09-11 Ontario Superior Court of Justice

Between: His Majesty the King and M.R.

Counsel: Michelle McKay, for the Crown Jill Gamble, for M.R.

Heard: August 20, 2025

Publication Restriction Notice

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Criminal Code, information that may identify the person described in this judgment as the complainant or witness may not be published, broadcasted or transmitted in any manner.

Reasons for Sentence

Chozik J.

[1] Guilty Plea and Charges

[1] On May 23, 2025, M.R. pled guilty to sexual interference, possession of child pornography, and making child pornography contrary to sections 151, 163.1(4)(a)(b) and 163.1(2)(a)(b) of the Criminal Code, R.S.C., 1985, c. C-46.

Facts of the Offences

[2] By way of a detailed Agreed Statement of Facts, M.R. admitted that a cell phone and a USB thumb drive seized by police from his home were his. He admitted that these devices contained videos and still images that meet the Criminal Code definition of child pornography. Many of these images depict M.R. sexually assaulting his three-year-old daughter, usually while she was asleep.

[3] A police investigation was triggered when the police became aware that a person on the internet known as Philwill029 had described to another internet user how he had sexually assaulted his three-year-old daughter while she slept by touching her face, anal region and vagina with his penis and then ejaculating on her. The police tracked down Philwill029 to M.R.'s address, from where his cell phone and the USB thumb drive were seized pursuant to a warrant.

[4] By way of the Agreed Statement of Facts, M.R. admitted that there were approximately 86,000 images on these two devices. These images were reviewed and categorized by Detective Constable Ian Noble, an officer employed by the Ontario Provincial Police. Detective Constable Noble prepared a detailed report as to his findings.

[5] The report sets out that the 86,000 images were categorized into three categories.

Category 1: Child Pornography

[6] Category 1 is child pornography as defined by the Criminal Code. This includes photos and videos or other visual representations that show a person who is, or is depicted as being, under the age of 18 years engaged in or depicted as being engaged in explicit sexual activity. It also includes images the dominant characteristic of which is the depiction for a sexual purpose of a sexual organ or the anal region of a person under the age of 18 years. Child pornography also includes any written material, visual representation or audio recordings that advocate or counsel sexual activity with a person under the age of 18 and any written material the dominant characteristic of which is the description for a sexual purpose of sexual activity with a person under the age of 18. Any audio recording that has its dominant characteristic as the description, presentation or representation for a sexual purpose of sexual activity with a person under the age of 18 also constitutes child pornography.

[7] M.R. had 19,130 images that fell into Category 1: child pornography. Of these, 1,221 were videos (totalling 60 hours, 40 minutes and 37 seconds of viewing time). In Category 1, Detective Constable Noble identified 1,035 images and 47 videos of M.R.'s three-year-old daughter.

Category 2: Child Nudity

[8] Category 2 is child nudity or images that are sexual in nature that depict children in various forms of undress including partial or full nudity but do not fit the strict definition of child pornography. Category 2 images may also include images and movies that contain nudity or pornography where the investigator is unable to ascertain the age of the person based solely on the video or image.

[9] M.R. had 2,754 images on his devices that fell into Category 2: child nudity. Of these, 37 were videos which totaled 1 hour and 14 minutes of viewing time.

Category 3: Other Digital Content

[10] The remaining 64,728 images fell into Category 3. These are all other digital images or video files contained on the digital device which may include adult pornography and obscene materials.

Nature and Severity of the Collection

[11] According to the report prepared by Detective Constable Noble, the videos and images not depicting a sexual assault or involving M.R.'s daughter, range widely in their level of severity and depravity. Most of them involved female children, from infants to preteens. The prevalence of infants in the collection was found by the officer to be significant. There were images that depicted newborns in hospital settings who appeared to be only days old. Many of these newborns were being sexually assaulted by adult males touching their penises to the infants' faces or positioning their penises inside of an infants' mouth. In some instances, an adult male was seen attempting to penetrate an infant digitally, anally or vaginally. There were other images where an adult male ejaculated on the infants' faces or in their mouths.

[12] The predominant ages of the female children being sexually assaulted in the images found on M.R.'s devices was between the ages of three and five. The children were shown performing fellatio or being anally or vaginally penetrated by one or more adult male penis. In other instances, males masturbated and ejaculated into the mouth of male or female children or elsewhere on their bodies.

[13] At the lower end of severity or intrusiveness, many of the images depicted female children ranging from three to ten years of age in various stages of undress, posing sexually for the photographer or videographer. In many of these images the children posed on their backs or on all fours exposing their anal and/or vaginal regions to the viewer. Despite the presence of underwear, in many of these images the garments lacked coverage and were often transparent.

Images of M.R.'s Daughter

[14] Within the 19,130 images that are child pornography, the police flagged 1,035 images and 47 videos of M.R. sexually assaulting his three-year-old daughter. Most of these instances appear to have occurred while the child was asleep. In these images and videos, an adult male penis was often seen rubbing against the child's upper legs and anal region, and frequently ejaculating onto the child's legs or anal region. There was one video where the adult male attempted to penetrate the child anally and another video where he attempted to penetrate her vaginally with his penis.

[15] M.R. was identified in a number of these videos and images by a distinct tattoo prominent on the back of his left hand. Most of the media showed his daughter topless but wearing underwear pulled up high into her anal region. There were some instances where her bottoms were removed, including the two videos described above where an attempt was made to penetrate her.

[16] To better understand the nature of the collection and these offences, I viewed a representative sample prepared by Detective Constable Noble of the still and video images. This did, indeed, assist me to better appreciate the nature of these offences. The report provides an outline or shadow of the images. The representative sample puts the report in a fuller context. Viewing a representative sample of the child pornography found on M.R.'s devices paints a very clear, and horrific, picture.

[17] M.R. admitted these facts, and I found him guilty of these three offences. A pre-sentence report was ordered. He is before me to be sentenced.

Positions of the Parties

[18] The Crown seeks 15 years' incarceration, broken down as follows:

• Nine years for sexual interference;
• Two years consecutive for the possession of child pornography;
• Four years consecutive for making child pornography.

[19] Relying on the decision of the Supreme Court of Canada in R v. Bertrand Marchand, 2023 SCC 26, the Crown urged the court to take a sequential approach to sentencing. This approach requires an assessment of an appropriate sentence in respect of each offence, individually, and then deciding whether the sentences should be served consecutively or concurrently. Then, it requires considering the principle of totality. This approach ensures separate consideration of the fit and appropriate punishment for each offence, provides clarity and transparency and allows a judge to weigh the seriousness of each offence to arrive at a fit sentence: paras. 89-97.

[20] Alternatively, the Crown submits that the 15-year sentence could be broken down as follows:

• 10 years for sexual interference;
• 5 years concurrent for each of possession and making of child pornography, but consecutive to the sexual interference.

[21] The Crown also seeks ancillary orders including:

• SOIRA for 20 years;
• DNA order (which is mandatory since sexual interference is a primary designated offence);
• A forfeiture order in respect of the two seized devices;
• An order under s. 743.2(1) of the Criminal Code that M.R. not communicate with his former wife and two daughters while serving his sentence in custody;
• An order under s. 161 of the Criminal Code for 20 years, or life.

[22] The defence position is that 10 years imprisonment is a fit sentence, less credit for pre-trial custody.

[23] M.R. has been in custody since his arrest on June 18, 2024. The Crown and defence agreed that his pre-trial custody to August 20, 2025 (the date I heard the sentencing submissions) was 429 days inclusive. He has served an additional 22 days since then. The total time he has spent in pre-trial custody is therefore 451 days. The Crown and defence agree that M.R. is entitled to the statutory 1.5 to 1 credit for this time, or 676.5 days, which I round up to 677 days.

[24] The defence takes no issue with any of the ancillary orders sought by the Crown, save one. The defence argues that the s. 161 order should be for five years. Since it would commence after M.R. serves whatever term of imprisonment is imposed, the defence argues that the order in effect would prohibit M.R. from being near his daughters in the future. If the order were for 20 years or life, it would be crushing to M.R. It would extinguish his hope that when he is released, he could see his daughters should they choose to have a relationship with him.

Principles of Sentencing

[25] The principles applicable to sentencing in this case are not disputed.

[26] The purpose of sentencing is described in the Criminal Code at s. 718, which states that "[t]he 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".

[27] These sanctions intend to denounce unlawful conduct and the harm done to victims or the community by unlawful conduct. These sanctions also intend to deter a particular offender or others in the community from committing offences, to separate offenders from society where necessary, to assist in rehabilitating offenders, to provide reparations to victims or the community, and to promote a sense of responsibility in an offender: Criminal Code, s. 718(a)-(f).

[28] When offences are committed against children, especially sexual offences, the legislation enacted by Parliament and the cases decided by the courts in Canada have made it very clear: the primary consideration is denunciation and deterrence.

[29] A sentence expresses denunciation by condemning an offender for violating our society's basic code of values. It expresses deterrence by discouraging an offender and others from engaging in criminal conduct. Sometimes, considerations of general deterrence lead to an offender being punished more severely than he or she individually might otherwise deserve to send a message to others.

[30] Section 718.2 of the Criminal Code expressly requires the court to consider evidence that an offender abused a person under the age of 18, abused a position of trust, as well as evidence that the offence had significant impact on the victim because of their age and other personal circumstances as aggravating factors.

[31] In recent years, the courts have been clear that those who commit sexual offences against children must understand that severe jail sentences will follow. Rehabilitation, restraint, and other principles of sentencing cannot be given equal or greater priority than denunciation and deterrence in sentencing for these types of crime.

The Harm Caused by Sexual Violence Against Children

[32] In R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, the Supreme Court of Canada held that sentencing in cases involving the sexual violation of children must reflect the harm that is caused by such violence. Sentences imposed must also recognize the harm that results to the children's families and to communities at large: Friesen, at para. 5. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes for years, decades, and generations to come: Friesen, at paras. 56 and 81.

[33] The harm or gravity of sexual offences against children cannot be understated.

[34] Sexual contact with a child by an adult is inherently violent. A child cannot consent to the sexual activity because of their age. Sexual violence invades the child's personal autonomy, violates their physical and sexual integrity and gravely impacts their dignity. This is true regardless of whether the child seems to participate in the sexual activity, without additional force or coercion. I would add that this is true even if a child seems to be unaware, because of age or other circumstances, of the sexual violence at the time it is happening. A child should be able to grow up and develop free from sexual interference and exploitation by adults: Friesen, at para. 52. Therefore, the sentences imposed on those who commit such sexual violence must fully reflect and give effect to the profound wrongfulness and harm it causes. This harm is often life altering and long lasting.

[35] Harm includes not just physical harm. Sexual violence against children can cause serious emotional and psychological harm that may be more pervasive and permanent in its effect than any physical harm. Sexual violence can interfere with children's self-fulfillment, health and well-being, and autonomous development to adulthood precisely because children are still developing and learning the skills and qualities to overcome adversity. Even a single instance of sexual violence can permanently alter the course of a child's life: Friesen, at para. 56.

[36] Today, we are much more aware of the damage caused by sexual violence experienced in childhood. The effects of sexual violence can include overly compliant behaviour and an intense need to please; self-destructive behaviour, such as suicide, self-mutilation, substance abuse, and prostitution; loss of patience and frequent temper tantrums; acting out aggressive behaviour and frustration; sexually aggressive behaviour; an inability to make friends and non-participation in school activities; guilty feelings and shame; a lack of trust, particularly with significant others; low self-esteem; an inability to concentrate in school and a sudden drop in school performance; an extraordinary fear of males; running away from home; sleep disturbances and nightmares; regressive behaviours, such as bedwetting, clinging behaviour, thumb sucking, and baby talk; anxiety and extreme levels of fear; and depression: Friesen, at para. 80.

[37] As the Supreme Court of Canada observed, the long-term harm of sexual violence experienced as a child manifests during the victim's adult years. Children who are victims of sexual violence may have difficulty forming loving caring relationships with other adults. They may also be more prone to engage in sexual violence against children themselves when they reach adulthood. They may also be more likely to struggle with substance abuse, mental illness, post-traumatic stress disorder, eating disorders, suicidal ideation, self-harming behavior, compulsive behaviors, anxiety, depression, sleep disturbances, anger, hostility and poor self-esteem as adults as a way to manage their trauma or in response to it: Friesen, at para. 81. Thus, while physical injuries heal, the effects of the trauma of the sexual violence experienced as a child can last a lifetime.

[38] No less significant are the consequences of sexual violence against children on their families and communities. The Criminal Code, in sections 2 and 722, recognizes that victims could include parents, caregivers and family members, who often suffer deep emotional, psychological, and financial harm. This harm can include feelings of guilt, loss of trust, strained relationships, and the strain of supporting a child through recovery. The harm also extends to communities and society, with measurable costs like increased need for state intervention, medical treatment, and lost productivity. Moreover, sexual violence can contribute to a cycle of abuse, as victims may be more likely to offend later in life, leading to the normalization of such violence in communities. Ultimately, sexual offences against children diminish the well-being of families, damage communities, and degrade society itself: Friesen, at paras. 62-64.

Moral Blameworthiness and Breach of Trust

[39] An offender who sexually abuses a child has a high degree of moral responsibility. He is an adult. He will usually have at least some awareness of the profound physical, psychological and emotional harm that his actions may cause a child. A parent's grooming of his own child for sexual activity is the greatest breach of trust and carries the highest moral blameworthiness: Friesen, at para. 125.

[40] As the degree of breach of trust increases, so does the moral blameworthiness of an offender. The court explained this in Friesen, at para. 129, as follows:

An offender who stands in a position of trust in relation to a child owes a duty to protect and care for the child that is not owed by a stranger. The breach of the duty of protection and care thus enhances moral blameworthiness. The abuse of a position of trust also exploits children's particular vulnerability to trusted adults, which is especially morally blameworthy. [citations omitted]

Thus, the abuse of a position of trust is especially morally blameworthy, in my view, because it is especially harmful.

Factors for Sexual Interference

[41] For the sexual interference count, the specific factors I must consider are the likelihood to re-offend, the abuse of a position of trust, the duration and frequency of the abuse, the age of the victim, and the degree of physical interference: Friesen, para. 122-147.

Child Pornography Offences

[42] The sentencing considerations I have outlined that apply to sexual offences apply to the offences of making and possessing child pornography.

[43] Making child pornography involves the exploitation and abuse of real children. Possession of it is no less harmful. Possessing child pornography involves viewing images created through the exploitation and sexual abuse of real children. Those who possess child pornography perpetuate the violation of a child's dignity by treating the child as an object to be collected and exploited. Possessing child pornography deeply offended a child's rights and humanity. It also undermines society's respect for children by falsely portraying them as willing participants or property, normalizing abuse and weakening adult responsibility to protect them: R. v. Pike, 2024 ONCA 608, 171 O.R. (3d) 241, at paras. 147-156; Friesen, at paras. 53, 57.

[44] Making or possessing these images invades children's privacy by allowing uncontrolled distribution of records of their abuse. Children lose control over who sees these permanent images, worsening the sexual violation. Viewing and possessing child pornography causes ongoing emotional trauma to children. Victims of sexual abuse suffer repeated trauma knowing others are or may be viewing their abuse. This "revictimization" makes recovery for victims more difficult. Children whose sexual abuse is recorded feel powerless. They fear being recognized or targeted again. They feel humiliated. The images often falsely portray them as consenting or participating in the sexual abuse. This increases their shame. Their anxiety can last into adulthood. Pike, at paras. 147-156.

[45] Possessors of child pornography fuel demand for child pornography. They sustain and expand the market that drives the sexual abuse of children. Without possessors, producers would have less incentive to create such material. Also, child pornography may be used to groom, manipulate or blackmail children into further exploitation. Those who possess child pornography may join communities that encourage making and distributing increasingly abusive content, escalating the offending behaviour and the harm that flows from it: Pike, at paras. 146-156.

Sentencing Factors for Child Pornography

[46] Some of the factors courts consider in respect of sentencing for child pornography offences include:

• (i) whether the accused has a criminal record for similar or related offences;
• (ii) whether in addition to possession, the accused made or distributed the child pornography;
• (iii) the size of the child pornography collection;
• (iv) the nature of the collection (including the age of the children involved and the relative depravity and violence depicted);
• (v) 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); and
• (vi) whether the offender has purchased or sold child pornography thereby contributing to the sexual victimization of children for profit as opposed to merely collecting it by free downloads from the internet: Pike, para. 166-173; R v Kwok, [2007] OJ No. 457 at para. 7.

[47] The size of the collection is not determinative. Size must be considered together with the number of real child victims it depicts, the degree of its organization, and the ratio of videos to still images. The number of different children depicted is more aggravating than a large collection. A more sophisticated level of organization of the collection is aggravating. Videos within the collection are more aggravating than still images. The depiction of real children is more aggravating than the depiction of virtual or fictional children.

[48] Evidence as to an offender's collaboration with other offenders, any planning, organization, sophistication, and participation in the child pornography subculture are additional aggravating factors. Depictions of more harmful or violent acts increase the severity with which the court views the offence, but it must be recognized that even non-violent exploitation (like sexualized posing) is seriously harmful: Pike, para. 166-173. I viewed several examples of such disturbing images within the representative sample of M.R.'s collection.

[49] The seriousness of the offence ultimately turns on the nature of the collection, and the degree of harmfulness and wrongfulness of the activity depicted, rather than size.

Proportionality and Individualization

[50] The sentence I impose must recognize the profound harm caused by M.R. to his daughter, her family and the community at large. I must also weigh the various factors in respect of each offence individually. At the same time, it must also reflect M.R.'s personal circumstances and the specific circumstances of these offences. Fundamentally, sentencing is a highly individualized exercise: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089. What this means is that there is no one size fits all sentence. The fundamental principle of sentencing is proportionality. This means that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[51] Recognizing that the approach to the sentencing in this case must follow these principles, I now turn to their application in this case.

Victim Impact

[52] A victim impact statement was prepared by M.R.'s former spouse, A.R.. She is the mother of their two young children, including the direct victim of M.R.'s offences. It speaks of the profound trauma she suffered because of M.R.'s crimes. As she describes it, his crimes have changed her and the children's entire life. She trusted M.R. with the children. She never thought that he could hurt them or use their youngest daughter, who loved him with all her heart, as he did. He was A.R.'s partner for 17 years, since she was a teenager. They separated in 2021. His betrayal of her, and of their children, is devastating. She feels pain for the children and must also bear her own pain.

[53] In her victim impact statement, A.R. states that she does not know how to live normally again or whether she or the girls will ever be okay. It is hard to imagine how one would live "normally," though I sincerely hope that they will find a way. A.R. describes being depressed, spending an entire summer crying on her couch, engaging in self-blame and not being able to forgive herself for "letting this happen". Doing the things that she used to do with the children has been a struggle. She also expresses a great deal of fear about the future, particularly about what would happen if people found out what M.R. did and the consequences of this for the children.

[54] A.R. had to take time off work. As a result, she cannot afford many of the things that she has in the past provided for the children. She fears about her ability to provide for them in the future. She has been unable to enjoy her regular day-to-day activities.

[55] A.R. indicated in her statement that she is making progress in her healing but is terrified that the smallest thing, such as hearing M.R.'s voice, or him contacting her or trying to contact the girls when he gets out of jail, would undo all the progress that she has made. In other words, she feels that her healing thus far is very fragile.

[56] It is clear that M.R. by his criminal conduct caused profound trauma to A.R. His breach of trust has had a severe impact on her mental and physical health, and all aspects of her life and wellbeing.

[57] Obviously, M.R.'s daughter is too young to appreciate or communicate the impact his crimes have had or will have on her. For now, she appears to have been shielded from the knowledge of what her father has done, but the bubble is not likely to last forever. I have outlined the harm these offences are known to cause, and I infer that these offences will have a life-altering impact on M.R.'s daughters.

[58] I imagine that it will be difficult to keep secret from either of the children as to what happened. One day, each is likely to find out that one of them was sexually used and objectified in this way by their father. They will likely wonder whether the other one was too. They will likely agonize over whether any of those images that M.R. made of their sexual violation found its way onto the internet. They will likely be revictimized each time the thought crosses their mind that someone might be getting sexual gratification from watching one of those images.

[59] They will each be impacted emotionally, psychologically and sexually. They will be traumatized not only by their father's crimes, but also by his sudden disappearance from their lives and because they will grow up without him. The paradox of wanting him and hating him will likely haunt them. They will wonder why he is gone, and why he did what he did. There are no easy answers. Each of these children will have to do a lot of work for the rest of their lives to hopefully heal from these events.

[60] I have no hesitation in finding that these offences have had and will continue to have a deep and profound impact on A.R., M.R.'s two young children, the whole family and the community for many years, if not decades, to come.

Circumstances of the Offender

[61] M.R. is 41 years old. He was born in Cambridge, Ontario but raised in Owen Sound. His parents remained married until his mother passed away. M.R. recalls having a good childhood with a stable home environment. At the same time, he said that his father used a belt as a form of punishment. He also disclosed that he was sexually assaulted as a child by an older woman.

[62] M.R. reported being involved in some extracurricular activities as a child at school. He admitted that truancy was an issue. He attended school until Grade 11, then started working. He left home when he was 19 years old. M.R. said that he was "gainfully employed for most of his life", but also said he received social assistance at times. He has a 20-year-old son from a previous relationship, with whom he said he remains in contact and of whom he had shared custody. As I have mentioned, he was together with A.R. for 17 years, since she was a teenager. They separated in 2021. He told the author of the pre-sentence report that it was "a great relationship".

[63] M.R.'s presentation of himself in the pre-sentence report is not entirely supported by those who know him. For example, A.R. explained that their marriage was a toxic one. She stated that there was a lot of stress and drama, infidelity and abuse. She reported that M.R. was intimidating to her, sometimes extremely so. He was charged with intimate partner violence offenses against her. She described his life as "not an easy one": his mother passed away from complications from a surgery and his sister died from a heart attack at around the same time. His sister had donated a kidney to his mother. He had a close relationship to both women. A.R. reported that M.R. had a history of intermittent employment. She said that he had never paid child support either to her, or to the mother of his other child.

[64] By all accounts, alcohol appears to be a problem for M.R. A.R. described M.R. as an alcoholic who drinks daily. She found him using methamphetamine once. That was one of the reasons they separated. His father also said that M.R. struggles with alcohol use.

[65] M.R. confirmed that he used methamphetamines for approximately a year. He said that he began to drink heavily only a few years ago. He said that it was due to his failing marriage and the passing of his mother and sister that he began "leaning into" alcohol to cope. He said he began using marijuana at 14 and that by 20 his use of it became "regular". He attributed his anger problems to alcohol use.

[66] M.R. was prescribed antidepressants in custody and advised that this seemed to have made a difference to his behavior. He described himself as a good guy and a leader when he is sober. He said that he believes that all his issues, especially anger management, is fueled by his alcohol use. He expressed, to the author of the pre-sentence report and to this court, wanting to be a better person. He repeatedly stated that he needs "treatment".

[67] I note that M.R. is not a first offender. He has a prior criminal record that includes at least six entries. Most of the entries are for failing to comply with court orders. He also has two convictions for criminal harassment and one conviction for trafficking in a schedule 2 substance. He has never served a period of incarceration. He has more than once received either a suspended sentence with probation or a conditional sentence. He was superficially compliant with those.

[68] I find that his prior sentences are not without significance. While his prior convictions do not appear related to the offences before the court, M.R. is not someone who is encountering the criminal justice system for the first time. Ordinarily, someone on community supervision has at least an opportunity to access supports and therapy to gain some insight into one's patterns and behaviors. Given the collateral reports that he has been an alcoholic for years, I do not accept that his claims that alcohol use has become an issue for him in only recent years. It appears that despite opportunities to access support while on probation or serving a conditional sentence, M.R. has not done so.

[69] In assessing M.R.'s rehabilitative prospects, I must consider any insight that he has into these offences, their impact on the victims or himself. I find that he knows what he did is profoundly wrong. I also find that he has little insight into why he did what he did or how to change. He said he needs "treatment" and that he wants to be a better man. I accept that he is sincere in these desires. However, these desires alone do not translate into intention, insight or action. Indeed, it appears to me that at this moment he lacks the necessary insight that is the starting point for any meaningful change.

[70] M.R. appears to be in denial about many of the complex issues that drive him. He appears to me to present with a complex history of trauma, substance abuse and criminal behavior. He blames his conduct on alcohol. Alcohol is not a cause of someone's behavior, but a symptom of whatever causes it that lies deep within. M.R. has expressed a desire to change, which is positive, but he has not done anything to date to show he has dug deep, or at all, or meaningfully reflected upon himself. He has taken responsibility for his crimes, and acknowledged the need to address his substance use, but he does not seem to have any idea how meaningful change happens.

[71] Change is hard. Change comes from within. Self-reflection is a lot of work. M.R. has a lot of work and a long road ahead to make his stated desire to become a better man a reality. "Treatment" is only part of the solution. As a result, while I encourage him to do the work, and I am somewhat optimistic that he will, I am unable to find that he has any significant insight or is a low risk to re-offend.

Aggravating Factors

[72] There are many significant aggravating factors in this case. First and foremost, the breach of trust is profound. M.R. repeatedly sexually violated his own three-year-old daughter while she slept, recorded his sexual violations of her and may have bragged about these on the internet to a stranger. It is difficult to imagine a more egregious breach of trust.

[73] The additional aggravating factors are the age of the victim, who was only three years old, as well as the duration and frequency of the abuse. He had 1,035 images and 48 videos of his sexual abuse of this child.

[74] His collection of child pornography is very significant: 19,130 images including 1,221 videos totaling over 60 hours of sexual abuse of children. It contains images of very young children, infants being sexually abused by adult males. The images depict intrusive sexual violations of these children, including penetration of their anal and vaginal regions. These images humiliate, degrade and sexually objectify the children. I find that M.R.'s collection of images containing child nudity is also aggravating.

Mitigating Factors

[75] The significant mitigating factor in this case is M.R.'s guilty plea.

[76] The Crown argues that this factor ought not be given much weight because the case against M.R. is overwhelming. I disagree.

[77] The case is overwhelming. But I am satisfied that this is not a case where the accused pled guilty just because he is facing an overwhelming case.

[78] I have seen M.R. in court more than once. I conducted an extensive plea comprehension inquiry of him directly before he pled guilty. I observed how he responded to my questions about his intended guilty plea. I have observed his reactions to the statements made during these proceedings. I read what he said to the author of the pre-sentence report. I listened carefully and heard what he had to say prior to sentencing.

[79] I find that his remorse is genuine. I find that his guilty plea reflects a genuine acceptance of responsibility for his wrongdoing. It was intended as an expression of profound remorse and a sincere wish not to put his children and former wife and the state through a trial. I note that when he spoke at the sentencing, he even apologized to the investigating officer for having had to watch the child pornography in his collection.

[80] I conclude that his guilty plea and expression of remorse are genuine, despite the overwhelming nature of the evidence in this case. As such, M.R.'s guilty plea is a mitigating factor entitled to significant consideration.

Range of Sentences

[81] Based on the authorities presented to me, I find that the applicable range of sentence for these offences globally is 10 to 18 years' incarceration. While sentences imposed on other offenders in other cases are a guide as to where a fit sentence might fall, each case involves unique facts and circumstances. No other case is exactly like this one. A range is not a binding set of numbers, but a ruler against which to measure the sentence to be imposed to ensure it reflects the principle of parity.

[82] In R. v. J.S., 2018 ONCA 675, 142 O.R. (3d) 81, a sentence of 18 years imprisonment was upheld on appeal. In that case, the accused pled guilty to making child pornography, distributing it and possessing it. He also pled guilty to sexual assault with a weapon and three counts of sexual interference. The offences involved him sexually abusing his three nieces, who were six-month old twins and four years of age. He filmed the abuse and distributed the photographs and movies on an internet site devoted to the sexual abuse of children. He also had an extensive collection of images and files of "sadistic" sexual abuse and sexual degradation of very young children.

[83] One of the key factors that distinguishes that case from this one is that there is no evidence of M.R. distributing the child pornography he made on the internet. There is also no evidence of a weapon being used by M.R. in committing any of the abuse. J.S. directly victimized three young children to whom he stood in a position of trust, whereas there is one direct victim in this case. The website used by J.S. is described by the court as a secret website devoted to distribution and trading between producers and consumers of "extreme forms of child pornography": J.S., at para. 7. It was the "upper echelon" of the child pornography industry, and involved "hands on" offenders: J.S., at para. 15. There is no evidence of M.R.'s involvement in the child pornography industry to the same extent.

[84] M.R.'s collection, while depraved, does not contain images of sadistic torture of children for sexual pleasure. Many of the images in J.S.'s collection did. J.S.'s collection, while smaller, contained images of vaginal and anal penetration of young children, penetration of children with objects and fingers, and a movie of the anal rape of a boy under two years of age, whose arms and legs were bound by electrical tape, and an image depicting bondage of a four-year old girl.

[85] In several of the child pornography videos J.S. made of his nieces, the child was aware of what was happening and crying during the abuse. His collection was described by the investigating officer as "the most intrusive collection" she had ever had to categorize. She said she saw things in that collection she had never seen before in six years. It included sadistic sexual acts committed against children as well as penetration with a range of instruments. J.S.'s collection was marked by images in which it was the discomfort of the child that was sexually pleasing to the viewer: J.S., at para. 12. The same cannot be said about M.R.'s collection.

[86] J.S. was found by the court to be a high risk to re-offend. There was evidence from several sources in that case before the sentencing judge as to his lack of insight into his crimes. While I cannot say that M.R. is a low risk to re-offend, I do not find M.R. to be a high risk to re-offend. Unlike J.S., M.R. is genuinely remorseful.

[87] A review of the other cases presented from Ontario, squarely puts the range in the 12 to 15 years when the principle of totality is applied. For example:

• In R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, the accused was convicted after trial of sexually assaulting his four-year old daughter and of making, distributing, and possessing child pornography. The Quebec Court of Appeal reduced the sentence from 15 years to nine years, but the Supreme Court of Canada restored the original 15-year sentence imposed by the trial judge: at para. 8.

• In R. v. T.L., 2018 ONCJ 107, the stepfather of a seven-year-old child pled guilty to sexual interference, the making and possession of child pornography, and voyeurism. He received a sentence of 13 years: at paras. 96-99.

• In R. v. R.W., (August 10, 2021), Simcoe, CR-20-13 (Ont. S.C.), the accused engaged in various hands-on offences against his two-year-old daughter. He pled guilty to sexual interference, sexual assault, and making available child pornography. He received a sentence of 15 years: at paras. 112-113.

• The accused was a daycare worker and an investigation revealed photos taken of toddlers' genitals and a collection of child pornography. S.C. pled guilty to sexual assault, and making and possession of child pornography. He received a nine-year jail sentence: R. v. S.C., 2019 ONCA 199, 145 O.R. (3d) 711.

[88] It seems that the range of sentences for these offences in Manitoba might be higher than in Ontario. I have reviewed and considered the cases from Manitoba cited by the Crown. In those cases, sentences of 16, 20 and 22 years were imposed: see R. v. R.D.S., 2021 MBQB 264; R. v. A.A.J.T., 2021 MBQB 3, aff'd 2022 MBCA 47; R. v. J.A., 2019 MBQB 112.

Application and Conclusion

[89] In my view the sentence of 15 years incarceration proposed by the Crown, while in the range of appropriate sentences, does not adequately take into account M.R.'s guilty plea, his acceptance of responsibility and genuine remorse. The sentence of 10 years' incarceration proposed by the defense is not outside the range. However, I find that it does not adequately reflect the seriousness of the offences, M.R.'s moral blameworthiness, the egregious breach of trust, and the size and nature of his child pornography collection.

[90] Balancing the various factors I have outlined, I find that a fit sentence is 12 years imprisonment. This will be apportioned as follows:

• Seven years (2,555 days) imprisonment for sexual interference.
• Two years consecutive (730 days) for possession of child pornography.
• Three years consecutive (1,095 days) for making child pornography.

[91] In my view, 12 years is a fit sentence whether I adopt a sequential approach as proposed by the Crown or a global approach described in R. v. Stuckless, 2019 ONCA 504, 146 O.R. (3d) 752. Either way, I arrive at the same result.

[92] The total sentence shall be expressed in days. The total sentence is 12 years or 4,380 days incarceration. From this total of 4,380 days a credit for pretrial custody of 677 days will be deducted. This deduction shall apply to the sexual interference count. The remaining sentence to be served is therefore 3,703 days (or approximately 10 years and 1 month and 20 days).

[93] The ancillary orders sought by the Crown shall issue.

[94] With respect to the s. 161 order, I do not agree with the defence that the term of the order should be for 5 years. Section 161 aims to protect children under the age of 16 years by keeping those who pose a risk to offend against them away from places they frequent. Even if I accede to the defence submission, and impose the s. 161 prohibitions for only five years, by the time M.R. serves his sentence and the five years pass, his daughters will be over the age of 16 years. The s. 161 order will not apply to them.

[95] In my view, the s. 161 is necessary to protect other vulnerable children from any risk posed by M.R. The s. 161 order shall issue for 20 years, except in respect of s. 161(1)(a.1) in respect of M.R.'s daughters. The terms under s. 161(1)(a.1) shall apply until each child is at least 21 years of age. By the time each girl is 21 years of age, she can decide whether or not she wishes to have any contact or relationship with M.R.

Chozik J.

Released: September 11, 2025