CITATION: R. v. Khadem 2026 ONSC 3551

COURT FILE NOS.: CR-24-10000074-00AP & CR-25-10000044-00AP DATE: 20260618

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

MAHIR KHADEM AND KEVIN HUANGFU

T. Monteiro, for the Crown

I. Vilkhov, for Mr. Khadem

N. Whitfield, for Mr. Huangfu

S.A.Q. AKHTAR J.

On appeal from the sentence imposed on 8 November 2024 by Justice Kim Crosbie of the Ontario Court of Justice and on 29 May 2025 by Justice David Porter of the Ontario Court of Justice.

FACTUAL BACKGROUND AND OVERVIEW

Introduction

1This appeal concerns the imposition of sentences imposed in cases of the possession of child pornography, contrary to ss. 164.1(4) of the Criminal Code, R.S.C., 1985, c. C-46, as it read at the time of the offences. Mr. Khadem was sentenced by Crosbie J. to a conditional sentence of 18 months. Mr. Huangfu was sentenced to a conditional sentence of 2 years less 1 day.

2The Crown appeals both sentences arguing that they were demonstrably unfit. For the following reasons, I agree.

Background Facts: Khadem

3On 3 June 2022, Google servers detected child pornography videos being uploaded to a private Google cloud storage account. The company alerted the National Centre for Missing and Exploited Children in the United States (“NCMEC”). The NCMEC managed to locate the IP address used for the uploads and passed the information onto police services in Toronto who obtained a production order identifying the subscriber associated to the IP address.

4They discovered that the subscriber, Mr. Khadem, resided at an address in Toronto with his family. As a result, the police executed a search warrant at the residence on 5 October 2022 seizing the respondent’s laptop.

5A forensic examination revealed that 1141 videos and 347 images of child pornography existed on the computer.

6Approximately two thirds of the images depicted children from the age of infancy to pubescence. The majority of the images captured children under the age of six engaging in sexual activity with adult males. The activity included fellatio and vaginal penetration.

7One third of the pictures depicted male children - a large number showing the same boy who appeared under the age of six engaging in sex with an older female.

8The videos ranged in duration between 7 seconds and 1 hour and 27 minutes in length. Over 400 videos were less than a minute, 430 were between 1 and 2 minutes and 300 or over 3 minutes in length. The videos recorded male and female children between infancy and pubescent age. They depicted the children engaging in sexual activity with adults as well as each other. Moreover, the collection contained videos of the children engaging in acts of bestiality and bondage.

9Mr. Khadem pleaded guilty to the offence of possession of child pornography.

10The sentencing judge noted that the respondent had no criminal record and, at 24 years old, was relatively young. A psychological assessment concluded that the respondent was a low risk to reoffend although the nature of the material was not given to the psychologist when they prepared their report.

11Mr. Khadem had been a successful student at Toronto Metropolitan University and participated in a number of co-operative programs. He indicated he was willing to undergo counselling and was remorseful and demonstrated insight into the significant and continuing harm of child pornography.

12At the sentencing hearing, the Crown asked the sentencing judge to impose a custodial sentence of 18 months with a three-year probation order, a SOIRA order for 10 years and an order pursuant to s. 161 of the Criminal Code, for 5 years. The Crown also asked for a DNA order and forfeiture order in relation to the subject material.

13Counsel for Mr. Khadem argued that a conditional sentence order should be imposed or, in the alternative, a 6 month custodial sentence.

The Sentencing Judge’s Reasons: Khadem

14The sentencing judge acknowledged the need for denunciation and deterrence when sentencing the respondent and the existence of s. 718.01 of the Criminal Code which states:

718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

15The judge also found that the Supreme Court of Canada in R. v. Parranto, 2021 SCC 46, 2021 SCC 46, 463 D.L.R. (4th) 389, had indicated that denunciation and deterrence could not eliminate the overall objectives of sentencing and that sentencing judges have discretion over which objectives should be prioritised and those which might result in rehabilitation should be given more weight in some cases: at para. 45.

16Significantly, the sentencing judge referred to the Court of Appeal for Ontario’s decision in R. v. Pike, 2024 ONCA 608, 173 O.R. (3d) 241, which she cited as explaining cases that had diverged from the Supreme Court of Canada’s decision in Parranto.

17The judge went on to identify the aggravating factors in Mr. Khadem’s case including the impact on children and the enduring existence of online images. The sentencing judge also found that there were a significant number of images and videos stored on the respondent’s computer.

18On the other hand, the sentencing judge further found a number of mitigating factors including the guilty plea, the expressed remorse, the respondent’s understanding of the harm done to children, the lack of a criminal record, the respondent’s relatively young age and his family support.

19The judge found that testing had shown that the respondent was at a low risk to re-offend. The judge also determined that the pre-sentence report showed a significant promise regarding the respondent’s academic ability.

20The judge held that even though she found denunciation and deterrence to be “paramount” she could not ignore the objectives of rehabilitation. In doing so, she found that a conditional sentence would meet the balanced objectives of both.

21The judge imposed a conditional sentence order of 18 months with the first 12 months placing the respondent under house arrest and the balance of the sentence requiring Mr. Khadem to comply with a curfew. The sentencing judge also placed Mr. Khadem on probation for 24 months. The judge also granted the ancillary orders sought by the Crown.

Background Facts: Huangfu

22Mr. Huangfu pleaded guilty to a single count of possessing child pornography, contrary to ss. 164.1(4) of the Criminal Code, as it read at the time of the offence.

23Police began their investigation into Mr. Huangfu on the 10 October 2023 and discovered he had accessed several child pornographic images through a Google Drive account on 5 July 2023. Police executed a search warrant on the 5 December 2023 at Mr. Huangfu’s home address and seized a number of electronic devices and magazines. When they searched his mobile phone and a hard drive, they found child pornography images. Whilst in custody Mr. Huangfu provided a video statement in which he admitted to having downloaded the offending material.

24Police found 544 videos and 2,313 unique images that met the definition of child pornography; however none of the images involved real children and were anime characters. Mr. Huangfu admitted that he had downloaded the images and the videos from the Internet and obtained the magazines by ordering them from a website, as well as purchasing magazines whilst on a visit to Japan and bringing them back into Canada.

25After his plea hearing the Crown sought a sentence of 12 months' imprisonment, accompanied by a two-year probation order as well as a SOIRA order for 10 years. Counsel for Mr. Huangfu sought a conditional sentence in the range of 18 months to two years less one day, or in the alternative a 45-day intermittent sentence. The sentencing judge acceded to the defence request and imposed a conditional sentence order of two years less one day with house arrest conditions, as well as a requirement that Mr. Huangfu perform 240 hours of community service with two years' probation, with a further 180 hours of community service attached to that probation.

26The Crown appeals the sentence, arguing that it was manifestly unfit.

The Sentencing Judge’s Reasons in Huangfu

27The sentencing judge identified “several aggravating features” including the nature of the child pornography which depicted bondage, bestiality, group oral and vaginal sex with young children. The sentencing judge also referred to the size of the collection: 544 videos and 2313 images.

28By contrast, the judge referred to “important mitigating circumstances” such as the fact that all of the child pornography was anime and so "no actual children were used in the creation of the child pornography”. He accordingly concluded that “one of the serious aspects of the harm associated with child pornography is not present in this case”.

29The sentencing judge also noted that Mr. Huangfu had no criminal record and was a youthful first time offender. Moreover, Mr. Huangfu provided a psychiatric assessment showing that he had undertaken extensive rehabilitative work.

30The sentencing judge also found that Dr. Gojer, one of the psychiatric experts retained by the defence, indicated that Mr. Huangfu was an active participant in group counselling in which he would continue to be involved if given a non-custodial sentence. Dr. Gojer expressed the opinion that Mr. Huangfu was a low risk to reoffend.

31The sentencing judge referred to Pike, noting that one of the offenders was significantly older than Mr. Huangfu and had imported his child pornography collection for a period of over three decades. The sentencing judge concluded that:

In my opinion, the balance of aggravating and mitigating factors in this case and the requirement that the sentence express denunciation for the serious offence of possession of child pornography, specifically deter Mr. Huangfu from re-offending, and deter other like-minded individuals from committing such offences, while reflecting the importance of restraint and rehabilitation for this youthful first offender means a two-years less a day conditional sentence with house arrest for the entire sentence is a fit and proportionate sentence.

LEGAL PRINCIPLES

32In R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11-12, the Supreme Court of Canada made clear that in the absence of an error of law or principle that has an impact on sentence, an appellate court cannot vary a sentence unless it is demonstrably unfit. Deference is owed to sentences imposed after trial. An appellate court may only intervene if the sentencing court has made an error in principle, failed to consider a relevant factor, overemphasised otherwise appropriate factors, or imposed a sentence that is demonstrably unfit: Lacasse, at para. 11; R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, at pp. 229-30; R. v. Lu, 2013 ONCA 324, 307 O.A.C. 40, at para. 37; R. v. Ramage, 2010 ONCA 488, 257 C.C.C. (3d) 261, at paras. 67-73.

33As the sentencing judge in Khadem’s case correctly pointed out, proportionality is an important principle in sentencing including cases where the victims are children.

34In R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 30-31 the Supreme Court of Canada explained:

All sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The principle of proportionality has long been central to Canadian sentencing (see, e.g., R. v. Wilmott, 1966 CanLII 222 (ON CA), [1966] 2 O.R. 654 (C.A.)) and is now codified as the “fundamental principle” of sentencing in s. 718.1 of the Criminal Code.

Sentencing judges must also consider the principle of parity: similar offenders who commit similar offences in similar circumstances should receive similar sentences. This principle also has a long history in Canadian law (see, e.g., Wilmott) and is now codified in s. 718.2(b) of the Criminal Code.

35The court added at para. 67:

Beyond the harm to families and caregivers, there is broader harm to the communities in which children live and to society as a whole. Some of these costs can be quantified, such as the social problems that sexual violence against children causes, the costs of state intervention, and the economic impact of medical costs, lost productivity, and treatment for pain and suffering (see Hajar, at para. 68; R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 37; United Nations, Report of the independent expert for the United Nations study on violence against children, U.N. Doc. A/61/299, August 29, 2006, at p. 12). In particular, children who are victims of sexual violence may be more likely to engage in sexual violence against children themselves when they reach adulthood (D. (D.), at paras. 37-38. Sexual violence against children can thus fuel a cycle of sexual violence that results in the proliferation and normalization of the violence in a given community (Standing Senate Committee on Human Rights, The Sexual Exploitation of Children in Canada: the Need for National Action, November 2011 (online), at pp. 10, 30 and 41). In short, the costs that cannot be quantified are also profound. Children are the future of our country and our communities. They deserve to have a childhood free of sexual violence (Hajar, at para. 44). When children become victims of sexual violence, “[s]ociety as a whole is diminished and degraded” (Hajar, at para. 67).

36In R. v. M.M., 2022 ONCA 441, at para. 16, the court remarked that:

Conditional sentences for sexual offences against children will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate – for example, where it gives rise to a medical hardship that could not adequately be addressed within the correctional facility. It would not be appropriate to enumerate exceptional circumstances here and we make no attempt to do so. Suffice it to say that no exceptional circumstances are present in this case. A sentence of imprisonment should have been imposed.

37Post Friesen, there have been a number of cases that have resulted in a custodial sentence after a guilty plea:

• R. v. Welter, [2024] O.J. No. 197 (OCJ) - 15 months - 10 unique images and 181 unique videos.

• R. v. Rousseau, [2024] O.J. No. 877 - 21 unique images of pre-teen females - 12 months.

• R. v. Kaardal, 2022 ONCJ 441- 276 images - the offender was 70 years old and had a military career spanning 32 years - 13 months imprisonment.

• R. v. Snead, 2021 ONSC 7017 - 6 images - no criminal record. The sentencing judge imposed a conditional sentence that was overturned on appeal and replaced by a 12 month sentence of imprisonment.

• R. v. Bekmambetov, 2021 ONSC 6219 - 9500 images and 283 videos. The offender had no criminal record and was found to have a low risk to re-offend. A sentence of 2 years was imposed.

• R. v. Jenkins, 2021 ONSC 2963 - Approximately 30,000 images and 1125 videos. The offender was 72 years old and had no criminal record. He was sentenced to 18 months.

The Decision in Pike

38In the more recent decision of R. v. Pike, 2024 ONCA 608, the court provided guidance for sentencing those found guilty of possessing child pornography. At paras. 166-173, the court identified the following factors to be considered:

• Criminal record

• Production and distribution

• Size of the collection

• Nature of the collection including the age of the children and degree of depravity depicted

• The perpetrator’s risk to children

• Payment for child pornography

39The court added that the size of the collection is not determinative and should be considered together with the number of real child victims, the degree of organization, and the ratio of videos to still images.

40Second, the seriousness of the collection’s nature turns on the depicted activity’s degree of harmfulness and wrongfulness. Thus, material depicting more physically intrusive activities that feature additional violence beyond that inherent in sexual offences against children is aggravating because those features may cause additional harm.

41Third, courts should consider whether the collection depicts real children.

42Fourth, duration, frequency, collaboration with other offenders, planning, organization, sophistication, and participation in the child pornography subculture should be counted as additional aggravating factors.

43Fifth, the absence of aggravating factors like the actual production and distribution of, the depiction of very young children, or payment to acquire child pornography is not mitigating.

44Sixth, good character, employment, and stigma are less significant factors in sentencing people who possess child pornography and cannot function as disguised class discrimination.

45Finally, a genuine expression of remorse on the part of the offender would be a mitigating factor.

46The court went on to consider the impact of Friesen on the sentencing ranges of possession of child pornography. The court indicated that it would raise the upper end of the sentencing range to five years to account for the Supreme Court of Canada’s observations in Friesen and Parliament’s increase to the maximum sentence for the offence.

47At para. 179, the court spoke of when conditional sentences might be available as an appropriate sentence stating:

This brings me to the appropriateness of conditional sentences for possession. First, judges should situate cases on the range and determine whether an under two-year sentence is appropriate before deciding whether it should be served in the community. They must also determine that a community sentence would not endanger community safety: McCaw, at paras. 20-26. Second, even if these conditions are met, courts must decide whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing, especially the fundamental principle, proportionality. This test requires considering not only personal circumstances and mitigating factors of people who possess child pornography, but also the severe wrongs and harms that they cause, their moral blameworthiness, and Parliament’s prioritization of deterrence and denunciation: McCaw, at paras. 27-29; R. v. M.M., 2022 ONCA 441 at paras. 15-16. As this court held in M.M., applying this second step ordinarily results in custodial sentences because Parliament has prioritized denouncing and deterring the wrongs and harms that people who possess child pornography cause real children: at paras. 15-16.

48The court concluded, at para. 181, in seeking to reconcile the jurisprudence since Friesen, that “while there is no presumption against conditional sentences, these post-Proulx changes require more compelling personal circumstances, mitigating factors, and/or the absence of aggravating factors, to justify a conditional sentence than might have been the case when Proulx was decided more than two decades ago”.

49In Pike, the court found that possession by Mr. Scott of 1500 files, an amount built up over decades, should have resulted in a three year custodial sentence rather than the conditional sentence imposed by the sentencing judge.

ANALYSIS

Mr. Khadem’s Sentence was Unfit

50In light of these principles I find that the sentence in Mr. Khadem’s case was unfit.

51I agree with the Crown that the judge overemphasised the mitigating factors in this case at the undue expense of denunciation and deterrence.

52This was a large collection of prohibited material: 1141 videos of children and 347 images. Approximately two thirds of the images included girls under the age of six engaging in explicit sexual acts with adult males. The remaining one third included images of young boys, under the age of six. The majority of the videos contain graphic scenes involving pre-pubescent children which depict explicit sexual acts. Some videos include acts of bestiality and bondage.

53The trial judge referred to the aggravating features of this material but failed to properly factor them into the sentence imposed.

54Instead, the sentencing judge focussed on the fact that the offender was youthful; had pleaded guilty; understood the significant harm done to children; had no record; was youthful; had family support; was at low risk to reoffend; was a successful student of Toronto Metropolitan University; had done a number of co-op programs, had indicated that he was willing to do counselling; was remorseful and had insight into the continuing harm that images of the sexual exploitation of children cause.

55Moreover, the sentencing judge added that the offender was “quiet and reserved” and this would mean that the impact of prison would be greater on him.

56These factors, whilst correctly viewed as mitigating, do not constitute compelling personal circumstances warranting the imposition of a conditional sentence. Other cases such R. v. Crump, 2023 ONCJ 132; R. v. Tcheong, 2023 ONCJ 205; and R. v. Welter, [2024] O.J. No. 197 featured first offenders and/or guilty pleas. All received custodial sentences.

57Other factors such as the support of a loving family, helping them around the home, checking their blood sugar for them; and the fact that the offender was a good student are all to Mr. Khadem’s credit but constitute factors of less significance in cases of child pornography: Pike, at para. 172.

58Nor is it clear why Mr. Khadem being “quiet and reserved” would play a significant role in the sentencing process. The sentencing judge cited, as authority, the para. 135 of R. v. Hills, 2023 SCC 2, 1 S.C.R. 6, a case dealing with the constitutionality of the mandatory minimum sentence for discharging a firearm in a public place, as authority for the fact that a sentence could be reduced for Mr. Khadem’s demeanour, reserved quiet nature and the fact that he is young.

59Respectfully, I see nothing in the paragraph cited that would support the sentencing judge’s interpretation of that dictum. The court in Hills was referencing offenders who would suffer harsher experiences of imprisonment, like those who were in law enforcement, had disabilities, or who might experience prison more harshly because of systemic racism. There is nothing to suggest that Mr. Khadem would suffer a harsher experience simply because of his quiet and reserved demeanour. Even if that was the case, it would not justify the imposition of a conditional sentence for such a serious offence.

60On reading the reasons as a whole I agree with the appellant Crown that whilst the judge acknowledged the seriousness of the offence, she failed to give the appropriate weight to it and placed an over reliance on the personal circumstances of Mr. Khadem - none of which comprised compelling reasons to impose a conditional sentence.

61As noted, this was a serious offence with a substantial amount of child pornography in the form of videos and images. Under s. 718.01 of the Criminal Code, the judge was required to give appropriate weight to denunciation and deterrence. She did not do so in this case. In my view, the appropriate sentence in this case should have been 12-18 months imprisonment.

62As in Pike, even though I find that the sentencing judge erred and imposed a manifestly unfit sentence, I am reluctant to now send Mr. Khadem into custody because he has served a significant part of his conditional sentence.

63For these reasons, I dismiss the appeal.

The Sentence in Huangfu Was Unfit

64As with Khadem, I find that the sentencing judge erred in imposing a conditional sentence which, in my view, was demonstrably unfit in the circumstances of this case.

65The sentencing judge made a number of errors in this case which justify intervention.

66First, and most significantly, the sentencing judge held that the fact that child pornography consisted of anime images was a mitigating factor. He made this comment on two occasions. On the second occasion he said the following:

It is a significantly mitigating factor in the case at bar, following the guidance of the Court of Appeal in R v Pike and Scott, that all of the child pornography in this case involved anime and no real children, so the terrible harm done to the real children used to create child pornography in many cases is absent here. [Emphasis added]

67Whilst there is no doubt that possession of anime images is less serious than the possession of child pornography depicting real children, it is not a mitigating factor. In Pike, the court held that images of real children were to be considered more serious than animated ones. However, the court also observed, at para. 169:

Third, courts should consider whether the collection depicts real children. Some people who possess child pornography collect stories or virtual images and videos that do not depict real children. Possessing this material is unlawful and serious because, like real child material, it incites and facilitates sexual offences against children, spreads lies about children that normalize sexual activity between adults and children, and may act as a gateway that leads people who possess it to seek material depicting real children. However, the possession of recordings of virtual or fictional children is less than serious recordings depicting the abuse of real children because the former's production does not victimize real children. [Citations omitted.]

68In other words, although obviously less serious than images of real children, the fact that these images were anime cannot in any way said to be mitigating, rather, this fact is simply not aggravating. The “gateway” effect warned of in Pike can lead to the production and possession of far more degrading images involving real children.

69As in Khadem, the sentencing judge failed to adequately consider proportionality and the harms caused by possession of child pornography. By referring to the fact that the child pornography was anime as being “an important mitigating factor” and “significantly mitigating factor”, the sentencing judge appeared to downplay the seriousness of the offence whilst at the same time ignoring the denunciation and deterrence that was necessary in any sanction.

70These videos showed images of children in bondage, crying and being tortured. The treatment of these images as being “mitigating” - as opposed to not aggravating - appears to have led the sentencing judge into error and imposing a reduced sentence.

71I also agree with the Crown that the sentencing failed to recognise a number of aggravating factors listing only two of the criteria set out in Pike - the size and serious nature of the material.

72The sentencing judge failed to refer to the fact that Mr. Huangfu had paid to order the magazines online and when purchasing them in Japan. This was not a momentary download but material in possession of Mr. Huangfu kept for at least five months and duplicated on another device. Moreover, Mr. Huangfu had physically brought the magazines into Canada. In Pike, the court, in a footnote to para. 143, noted that:

The trial judge stayed the possession count pursuant to R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, because it was based on the same facts as the importing count of which he convicted Mr. Scott. My guidance still focuses on the possession count because the additional importing element that distinguishes the importing offence from the possession offence was less significant in this case, as the Crown did not prove that Mr. Scott obtained the material outside Canada or imported it to distribute it.

73It should be noted that in Pike, Mr. Scott had a collection of approximately 1500 images and videos but only 166 were those of real children with the vast majority being anime. There, the court held that the appropriate sentence would have been a three year sentence of imprisonment.

74I also share the Crown’s concern that the sentencing judge’s reliance on Dr. Gojer’s report was misplaced. Dr. Gojer wrote that Mr. Huangfu was a low risk to reoffend and stated that Mr. Huangfu had no sexual interest in children. However, Mr. Huangfu had told Dr. Gojer that “maybe” and there was “definitely a possibility” that he was attracted to child abuse material which involved real children. It was clear that that Dr. Gojer’s assessment that Mr. Huangfu was a low risk to reoffend could not be accurate.

75The size of the collection in this case along with the other aggravating factors referred to above demanded a custodial sentence. The sentencing judge erred by imposing a conditional sentence. In my view, the judge should have acceded to the Crown’s submission and imposed a 12 month custodial sentence.

76Again, as with Mr. Khadem, I find that even though the judge erred in imposing a conditional sentence I decline to incarcerate him because he has served a substantial part of his sentence.

CONCLUSION

77Despite my conclusion that both Mr. Khadem and Huangfu should have been sentenced to terms of imprisonment, I decline to send them to prison.

78This is a close call but I find that it is not in the interests of justice to incarcerate either one of them. Both have served a significant part of their sentences and I find that it serves the interests of justice - very narrowly - to allow them to continue with their conditional sentences.

79As in Pike, it would be counterproductive to allow the Crown’s appeal and stay the sentences because it would mean that the conditional sentences would no longer be operative, benefitting both respondents: at para. 195.

80Accordingly, I dismiss the Crown’s appeals but make clear that their arguments have succeeded.

S.A.Q. Akhtar J.

Released: 18 June 2026

CITATION: R. v. Khadem 2026 ONSC 3551

COURT FILE NOS.: CR-24-10000074-00AP & CR-25-10000044-00AP DATE: 2020618

ONTARIO

SUPERIOR COURT OF JUSTICE