R. v. Millan, 2022 MBPC 1

CITATION: R. v. Millan , 2022 MBPC 1 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) C. Reimer for the Crown ) ) - and - ) ) ) Ricky Millan ) ) K. Jones for the Accused Accused ) ) ) ) Reasons for Decision ) Delivered: January 5, 2022 Corrected Judgment: A corrigendum was issued on March 23, 2022; the corrections have been made to the text and the corrigendum is appended to this judgment. C.A. DEVINE, P.J. INTRODUCTION [ 1 ] Mr. Millan pleaded guilty to the offences of making child pornography pursuant to Criminal Code

section 163.1(2) between the dates of May 12 and 17, 2019, possessing child pornography pursuant to

section 163.1(4) between the dates of May 22, 2019 and May 23, 2020, and breaching a condition of his release order by possessing a password-protected, web-enabled cellular device with a camera, on August 6, 2020. The offence of making child pornography is strictly indictable with a mandatory minimum sentence of one year. The Crown proceeded by way of indictment on the possession of child pornography charge, which also carries a one-year mandatory minimum sentence. The Crown also proceeded by way of indictment on the release order breach. [ 2 ] Mr.

Millan has previous convictions for sexual offences against children. [ 3 ] The Crown is seeking a total jail sentence of approximately four years: noting the period of approximately 25½ months that Mr. Millan has been in custody awaiting trial and sentencing, plus an additional almost two years, in order to further protect children from him. She is also asking that I place Mr.

Millan on three years of supervised probation with strict, protective and rehabilitative conditions and several ancillary orders to protect children. [ 4 ] The defence is seeking a sentence of approximately 25½ months, that is, the time that Mr. Millan has been in custody, to be followed by the maximum period of probation that is, three years, arguing that the nature of the offences, while serious, is not as serious as the Crown contends.

FACTS OF THE OFFENCES [ 5 ] The police were alerted to uploads of child pornography images to a particular Internet Protocol (IP) address in Winnipeg and undertook an investigation. They obtained a warrant to search Mr.

Millan’s home and devices and discovered 25 digital image files on two cell phones found in his home, as well as written chats via email and text discussing child sexual abuse and incest. (It should be noted that ten of the images were accessible; 15 of them were in cached folders and were no longer accessible because they had either been deleted or accessed, as opposed to downloaded.) It should also be noted that when the police came to his home, Mr.

Millan told the police they would find about 10 images on the phones. [ 6 ] In addition to the 25 images that, without question, met the criteria to be considered child pornography, there were 261 images of “investigative interest”. The images of investigative interest might appear to the lay person as child pornography, but did not strictly meet all the criteria, for example, images that show a female without developed muscles or pubic hair or breasts could not be considered “child pornography” because their face was not showing.

Or, a close-up of only a vagina without pubic hair could not be considered “child pornography.” There were also images showing bestiality.

[7] The phones were found on the living room coffee table and on Mr. Millan’s bedside table. [8] Mr. Millan challenged the warrant, which was upheld in the written decision R. v. Millan, 2021 MBPC 36. Subsequently, hepleaded guilty to these offences. [9] He was arrested on May 28, 2020 and was released later that day, with several protective conditions including that he notpossess any devices capable of downloading or creating child pornography. After forensically examining the devices, the police went tohis home on August 6, 2020 to arrest him on further charges.

At that time, he was also arrested for possessing a cell phone capable ofdownloading from the internet and taking photos. He states that he found the phone two days previous, but did not use it. [10] He has been in custody since that time. [11] The written communications which constitute making child pornography involve graphic and disturbing chats on Kikmessenger, as well as regular SMS text exchanges between Mr. Millan, who was 55 years old at the time, and two different people whopresented themselves as adolescent girls. Mr. Millan posed as the “daddy” and the others posed as his daughters and sex toys.

He calledthe one “baby girl slave”. Mr. Millan started the conversation with the other person, who was labelled “16 yo TO” by writing that hewas “looking for a really young horny submissive girl to come live with me full time.” The material advocated and counselledincestuous and other forms of child sexual abuse activity between the accused and the purported females, with other girls, with daughtersthey would have together, and with animals. He talks of enjoying causing the females pain when describing graphic details of vaginaland anal intercourse and bondage.

He was obsessed with the idea of getting them pregnant so they can give birth to baby girls he canthen sexually abuse. He also asked about involving another transgendered girl. [12] All the talk is of the girls being young. He did not care how young they were, and as for the daughters they would create sothat he could have sex with them: “the younger the better.” [13] Even though the individuals involved in the chats presented as under the age of 18 and Mr. Millan communicated with them asif they were under the age of 18, the Crown was unable to prove their ages and Mr.

Millan did not admit that the people involved in themaking of the child pornography were under the age of 18. Mr. Millan says that he added the “16 yo in TO” moniker after someone, liketheir parents, intervened to advise that this was a “kids’ phone; text again and we report you to police.” Defence counsel argued that Mr.Millan ceased to communicate with that person and, as a result, labelled the chat “16 yo in TO” so that he would avoid chats with themin future. I also note, however, that “16 yo in TO” sent some photos of herself to Mr.

Millan which were not retrievable, but he referredto the photos as if the person was a pubescent girl, that is, someone with “big boobs” who was capable of becoming pregnant. [14] The 25 images involved naked, pre-pubescent girls as young as one year old, posing in sexually provocative ways, featuringtheir pubic and anal areas, to images where the infants and children being subjected to cunnilingus or penile penetration of their vaginas. ISSUE [15] One of the issues to be decided in this case is whether it is necessary to continue to separate Mr.

Millan from society, based onthe degree of risk he poses to children. The overall issue is to assess the seriousness of the offences he committed and his degree ofmoral culpability in order to impose a fit and appropriate sentence, within the context of recent sentencing directives from the SupremeCourt of Canada that increase sentences for sexual offences against children. SENTENCING PRINCIPLES [16] The fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of ajust, peaceful and safe society.

This is accomplished by imposing just sanctions that have one or more objectives. Those objectivesinclude: denouncing unlawful conduct and the harm done to victims, deterring the offender and others from committing offences,separating offenders from society where necessary, rehabilitation, providing reparations for harm done to victims or the community,promoting a sense of responsibility in offenders, and acknowledging the harm done to victims or the community. [17] Overarching those objectives is the fundamental principle of sentencing: proportionality.

The sentence imposed must beproportional to the gravity of the offence and the degree of responsibility the offender had when they committed the offence. [18]

Section 718.01 of the Criminal Code, which was enacted in 2005, requires that when the court is sentencing an offence thatinvolves the abuse of a child, primary consideration must be given to the objectives of denunciation and deterrence. [19] In the recent Supreme Court of Canada decision of R. v. Friesen, 2020 SCC 9, the Court characterized

section 718.01 as part ofa significant shift to “re-set the approach of the criminal justice system to offences against children” (citing Saunders J.A. in R. v.D.R.W., 2012 BCCA 454 at para 32). The Court characterized the amendment as follows:

Section 718.01 thus qualifies this Court’s previous direction that it is for the sentencing judge to determine which sentencing objective orobjectives are to be prioritized. Where Parliament has indicated which sentencing objectives are to receive priority in certain cases, thesentencing judge’s discretion is thereby limited, such that it is no longer open to the judge to elevate other sentencing objectives to anequal or higher priority (Rayo, at paras. 103 and 107-8).

However, while s. 718.01 requires that deterrence and denunciation havepriority, nonetheless, the sentencing judge retains discretion to accord significant weight to other factors (including rehabilitation andGladue factors) in exercising discretion in arriving at a fit sentence, in accordance with the overall principle of proportionality (see R. c.Bergeron, 2013 QCCA 7 (C.A.

Que.), at para. 37 ). (at para. 104) (Emphasis added.) [20] Writing for the Court in Friesen, Chief Justice Wagner and Justice Rowe discussed the role that denunciation plays,particularly when dealing with offences against children: Parliament’s choice to prioritize denunciation and deterrence for sexual offences against children is a reasoned response to thewrongfulness of these offences and the serious harm they cause. The sentencing objective of denunciation embodies the communicative

and educative role of law ( R. v. Proulx , 2000 SCC 5 , [2000] 1 S.C.R. 61 (S.C.C.) , at para. 102 ). It reflects the fact that Canadian criminal law is a “system of values”. A sentence that expresses denunciation thus condemns the offender “for encroaching on our society’s basic code of values”; it “instills the basic set of communal values shared by all Canadians” ( M. (C.A.) , at para. 81).

The protection of children is one of the most basic values of Canadian society ( L. (J.-J.) , at p. 250; Rayo , at para. 104). . . .(at para. 105) [ 21 ] The relevant sentencing objectives in this case are denunciation, deterrence, separation of the offender from society, rehabilitation and promoting a sense of responsibility in the offender and acknowledgement of the harm done to children and the community by the proliferation of child pornography.

PROPORTIONALITY: THE SERIOUSNESS OF THE OFFENCES [ 22 ] The creation and possession of child pornography are serious offences with harmful consequences for children and society. [ 23 ] The Canadian Centre for Child Protection (C3P) no longer uses the language of “child pornography” to refer to what they now more appropriately call “child sexual abuse material” because actual children are sexually exploited and abused in the creation of most “child pornography.” However, because the language of the Criminal Code continues to use the wording “child pornography”, that is the wording I will use in this judgment. [ 24 ] The leading case dealing with child pornography is R. v.

Sharpe , 2001 SCC 2 , where the constitutionality of the offence of possessing child pornography was challenged on the basis that it violated the Charter guarantee of freedom of expression. Both the majority and the minority decisions eloquently and pointedly described why child pornography is so harmful, both to individual child victims and to children generally. [ 25 ] In this case there are two forms of child pornography: first, images of actual child victims, those being the children whose images were downloaded from the internet, and secondly, conversations between Mr.

Millan and two other persons about having sex with children. I will discuss each of the forms and offences in turn. Possessing Images of Child Pornography [ 26 ] The possession of images and videos of child pornography should by now be well-known. And yet, it seems that Mr. Millan was surprised to learn, and was genuinely impacted, when he heard the following types of arguments made by Crown counsel at his bail hearing after his August 6, 2020 arrest.

They are worth repeating, as long as the proliferation of child sexual abuse images continues at an alarming rate. (I have copied the following paragraphs almost verbatim from an earlier judgment I wrote involving possession of child pornography, R. v. Nepon , 2020 MBPC 48 .) [ 27 ] Children continue to be victimized every time someone views pornographic images of them; their privacy, security of the person, integrity and sexual integrity are violated as images of them proliferate at an unprecedented rate on the internet.

The internet has indeed changed the complexion of child pornography and increased the harm caused exponentially. In Friesen , the Supreme Court stated: Technology can make sexual offences against children qualitatively different as well. For instance, online distribution of films or images depicting sexual violence against a child repeats the original sexual violence, since the child has to live with the knowledge that others may be accessing the films or images, which may resurface in the child’s life at any time ( R. v. Sharpe , 2001 SCC 2 , [2001] 1 S.C.R. 45 (S.C.C.) , at para. 92 ; R. v.

J.S., 2018 ONCA 675 , 142 O.R. (3d) 81 (Ont.

C.A.) [hereinafter S. (J.)], at para. 120). (at paras. 47 – 48). [ 28 ] In addition to the substantial physical and psychological harm caused to children in the production of child pornography and the ongoing harm that the presence of abuse materials on the internet causes, the Supreme Court in Sharpe discussed several other forms of harm connected with the possession of child pornography: • Promoting cognitive distortions: “Banalizing the awful and numbing the conscience, exposure to child pornography may make the abnormal seem normal and the immoral seem acceptable. (at paras 86 and 88 per McLachlan, CJ, and cited in R. v.

A.R. , 2018 ONCJ 613 at para 22 ) • Fueling fantasies that incite offenders (at paras 86 and 89 per McLachlin, CJ) • Grooming and seduction of victims (at paras 86 and 92 per McLachlin, CJ) • The very existence of child pornography endangers and undermines the integrity and dignity of children: . . . because degrading, dehumanizing, and objectifying depictions of children, by their very existence, undermine the Charter rights of children and other members of society. Child pornography eroticises the inferior social, economic, and sexual status of children.

It preys on preexisting inequalities. (at para. 158 per L’Heureux-Dubé, J) • Negative attitudes about children are supported and shaped by the existence of child pornography: “. . . child pornography creates a type of attitudinal harm which is manifested in the reinforcement of deleterious tendencies within society.” (at para 160 per L’Heureux- Dubé, J.) • The possession of child pornography creates and expands the market for it (at para 92, per McLachlin, CJ.) [ 29 ] In the Nepon sentencing, the Crown filed a Community Impact Statement (CIS) pursuant to

section 722.2 of the Criminal Code . The CIS was prepared on behalf of victims of child pornography generally and filed by C3P. Appended to the CIS is the executive

summary of a survey entitled Survivors’ Survey, published by C3P in 2017, also filed by the Crown in this sentencing. The survey is “the only research to date that brings together the collective voices of a number of victims of child sexual abuse material.” One

hundred and fifty survivors from all over the world were surveyed. Paragraphs 33 to 45 of Nepon state as follows: [ 33] The report details the common themes of harm experienced by children who have been depicted in child pornography. The common themes were: 1) the emotional impact of the material, due to its permanence and persistence, as well as the circumstances surrounding its production, distribution, and consequential psychological effect on the victims; 2) the physical impact of being abused; 3) the economic impact; and 4) fears for their security. [34] One respondent in the Survivors’ Survey stated: . .. .

If you ask me, a crime that will never end is worse than one that is over; no matter how much more serious it may appear. and It is like I am just here for other people’s pleasure and am not a person myself with my own wants and needs. If you are looking at me, or any other child for that matter, then you are luring every one that you look at. Anyone who looks at those horrible pictures of me or other children are abusing us. (at p. 5) [35] An awareness that the pornography exists can delay reporting it to police or disclosing at all.

Some victims fear that the imagery might make them look responsible for the abuse. Sometimes the images are used to threaten or blackmail victims. One respondent stated: . . . the photographs were THE proof that I was ‘weak’, that I was a coward that didn’t have the guts to act when a grown-up pulled down my trousers. I was afraid that if other adult[s] were to know this about me, they would also start abusing me. . .

During the abuse situations, there were plenty of moments at which I was quite literally paralyzed by fear. (at p. 7) [36] Some respondents mentioned ongoing sensitivity to having their photos taken for any reason. [37] It must be recognized that the abuse suffered by a child who appears in a pornographic photo or video may not be confined to what was captured on film.

Some survivors reported that they had been threatened before, during and after the images were created and ordered to “smile, pose and show enjoyment in the images.” (at p. 8) Context is especially important when considering images of children posed in a sexual fashion. Instead of viewing these images as “less severe”, it is crucial to take a step back and ask questions about the circumstances preceding and following the creation of the imagery.

When respondents to the Survivors’ Survey were asked about whether their abuser gave them any directions during the production of the imagery, posing/performing was the most common answer. (at p. 9) [38] On that theme, the CIS refers to a victim impact statement from the case of R. v. A.M. , 2013 ONSC 6174 at paragraph 25, where the image was described as “not the most egregious” (a photo of the victim topless, taken by her step-father while she was sleeping). In her victim impact statement, the victim stated: The year of the offence, I found myself wanting to end my life. I had become a ‘cutter […].

Now I have a psychiatrist and I am taking pills for my nerves; and sleeping pills. I hate myself a lot and feel very guilty, I have no more self-esteem or even self-worth. . . I always feel dirty and am disgusted with myself. I have major trust issues now. . .(at p. 10) [39] Many victims reported the emotional impact of knowing how easily their images can proliferate and be shared on the internet: My child sexual abuse imagery is out there for anyone to see, I will forever be taken advantage of. . .

Being the adult I am now, my photos are still out there, as long as the internet exists my photos will always be out there. Sites will be taken down but new ones are somehow being put back up. As far as I know there is just no way of permanently deleting these photos. There is no way I can finally be done with abuse. I have to live my life guarded and can never full trust anyone. (at p. 11) [40] The majority of victims of child pornography have been diagnosed with psychiatric conditions or illnesses due to the abuse, including post-traumatic stress disorder and dissociative disorders.

Victims have suffered hospitalizations, addictions, suicidality and long-term disability.

Almost all survivors in the survey were or had been in therapy. [41] The CIS reports that the survey did not request information about physical impact, but that it was reasonable to infer physical sequelae from the psychological harm that the victims suffered (at p. 13). [42] There are also economic impacts to survivors because they are often unable to complete school work, have difficulty concentrating, are more often ill and absent from school and work, experience social anxiety at work, and have a fear of being recognized. (at p. 14) There are also direct costs to treat the consequences, such as therapy. [43] Victims fear that their images can be recognized into adulthood.

One victim stated: If I must summarize it, it’s as if I never have real ‘freedom’, never uninhibited, never without fear. . . If I’m somewhere and somebody looks at me, I’m always afraid that it’s because people know it, or recognize me. (at p. 15) [44] The CIS states that such a fear is not unfounded: . . . the truth is that there are online spaces dedicated to discussing and sharing child sexual abuse material and information about the victims of this exploitation.

Cybertip.ca analysts have seen numerous posts in discussion threads where individuals comment on a survivor’s current whereabouts or post other identifying information such as the school/university a survivor is attending, the name of a sports team a survivor is on, or images involving a survivor’s friends/acquaintances. (at pp. 15-16) [45] Some offenders have gone as far as posting the child’s name (at p. 16). Some victims have been contacted by other offenders

harassed, and one victim had an offender make a YouTube video using the previously-posted pornography. . . . I don’t get to live a normal life where I can take pictures at the beach and feel comfortable. I feel like I am constantly naked, like, I will never have a clear mind because I know somewhere someone is looking at my photos right now. It could be someone from another country or maybe even someone I work with. I am terrified for my life. I constantly have thoughts of someone finding out who I am and trying to hurt me (p. 17). [ 30 ] In this case, the pornographic material involved still images.

Pre-pubescent girls as young as one to three years old were required to pose nude, usually on their backs, with adult penises inserted into their vaginas, or the babies and children were subjected to cunnilingus or otherwise exposed their genitalia and anuses. Clearly, someone, presumably a trusted adult, made these girls pose or subjected them to penetrative sexual abuse. Making Child Pornography, Written Material [ 31 ] In 2015, Parliament increased the maximum sentence for making child pornography from 10 to 14 years.

In exhorting sentencing judges to increase sentences for child sexual abuse crimes, the Supreme Court pointed to the increase in maximum sentences as an indicator that sentences in individual cases must increase. [ 32 ] In this case, Mr. Millan, a former sex offender, created pornographic communications with two people who represented themselves, or allowed themselves to be treated as if they were, teenage girls. In the communications, he encouraged and requested the girls to participate in sexual acts with him, with others, and with animals like dogs.

He also requested that they send photographs of themselves nude or engaging in sexual activity. He also counselled them to have babies with him, who he could then have sex with; if they were girls, “the younger the better.” [ 33 ] Counsel for Mr. Millan argued that he did not realize this was a crime. [ 34 ] Defence counsel argued that because the people involved in the conversations cannot be proven to be children, no children were harmed. I disagree. The nature and content of Mr.

Millan’s conversations, along with the fact that the people presented as and were treated as teenage girls, transform these conversations from private imaginings to harmful communication. The content involved celebrating and counselling incest, bestiality and sex with young girls and infants. Detailed conversations about having rough sex with those girls, and imagining making babies with them, for the sole purpose of having sex with them, is dangerous. Such expressions normalizes the oppression and sexual objectification of, and violence against, very young children and infants. [ 35 ] Counsel for Mr.

Millan also argued that the children being fantasized about were not real children, unlike cases where specific children are represented or discussed, such as R. v. A.R. , 2018 ONCJ 613 , where the offender wrote about his daughters and, when they learned of it, they were anguished. While I agree that those circumstances make the production of child pornography more egregious, there is still danger in these discussions. [ 36 ] The making of child pornography, including written child pornography, is inherently harmful.

The definition of written child pornography in the Criminal Code includes that which “advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act” (s. 163.1(1) (b)), or “whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act” (s. 163.1(1) (c)). [ 37 ] It should be remembered that the Sharpe case involved many forms of child pornography, including written child pornography.

The case predated the internet and the proliferation of the types of “chats” involved in Mr. Millan’s case. The Sharpe case involved old-fashioned stories and prose about the sexual abuse of young boys, some of which was stored on computers discs.

As the Supreme Court observed in Friesen , “New technologies have enabled new forms of sexual violence against children and provided sexual offenders with new ways to access children.” (at para 47) [ 38 ] The purpose of criminalizing the possession, distribution and making of child pornography was to protect children from the harmful effects of child sexual abuse and exploitation and to send a message to Canadians that children “are not appropriate sexual partners.” ( House of Commons Debates , 3rd Sess, 34th Parl., vol XVI, June 3, 1993, at p. 20328, cited in Sharpe , at para 34 ). [ 39 ] The communications in this case are disturbing.

If the people Mr. Millan was communicating with were indeed “kids”, as the final text in the chat from “16 yo TO” suggests, I cannot imagine how disturbing the content of these communications would be to a teenage girl. Even though they did not have any actual, physical contact with the offender, every aspect of their personal autonomy, bodily and sexual integrity, dignity and equality were trenched on during the vile sexual chats initiated and driven by the offender. The material is humiliating, objectifies the girls, exploits them, and shames them.

I infer that there would be emotional and psychological harm to any child engaged in the production and reading of this material. [ 40 ] This type of written child pornography, if the person is proven to be under the age of 18, would constitute the offence of luring. [ 41 ] Even if the people involved in Mr. Millan’s communications were over the age of 18, there is inherent harm in advocating and counselling sexual activity with children and babies, particularly the heinous activity involving incest, bestiality and bondage. Moreover, the material is no longer in Mr.

Millan’s control; the other person can distribute this material once it is “online.” [ 42 ] I do not accept defence counsel’s argument that this is harmless communication between two adults expressing their imaginations. [ 43 ] It is important not to correlate a case that does not involve real children as not harming real children. Generalized harm is not victimless which would necessarily attract far less serious punishment. The logical extension of the argument would be to limit the crime of possessing, making and distributing child pornography only to images or recordings involving actual children.

It would be dangerous to do so, and so I respectfully have a different view of the crime than the sentencing judge in R. v. Massey , 2021 ABQB 146 ,

who commented on statements from Friesen about the harm of visual representations of child pornography. The sentencing judge in that case found that those harms and concerns were only of limited applicability to chats involving an undercover police officer in the case before him: The Court observed that the legislative scheme in relation to sexual offences against children which Parliament adopted in 1986 shifted the focus from the sexual propriety of an offender’s conduct, to the wrongful interference with the sexual integrity caused by that conduct (para 55).

The Court said: [para 56] This emphasis on personal autonomy, bodily integrity, sexual integrity, dignity, and equality requires courts to focus their attention on emotional and psychological harm, not simply physical harm. Again, this observation appears to be of limited applicability to Mr.

Massey’s crime which did not involve actual violation of anyone’s personal autonomy, bodily integrity, sexual integrity, dignity, or equality, and which did not involve emotional, psychological or physical harm to anyone . (Emphasis added.). . . . . . while there can certainly be instances of that crime where there is a real live child victim, as where the pornography consists of a photographs or videos of a child being sexually abused, it is difficult to see how the harms so exhaustively discussed in Friesen arise in a case, such as Mr.

Massey’s, where the child pornography consists of a few text messages describing, advocating and counselling criminal sexual conduct sent to a police officer pretending, possibly unsuccessfully, to be a child. ( Massey , at paras 42 and 44 ) [ 44 ] Although the judge in Massey warned himself throughout the judgement not to place too much emphasis on this factor, the defence in this case urged me to consider the gravity of the offence as less serious because no real children were involved in the making of the child pornography. PROPORTIONALITY: THE CIRCUMSTANCES AND MORAL CULPABILITY OF THE OFFENDER [ 45 ] Mr.

Millan is now 57 years old. He grew up in Winnipeg with his parents. His father was an extremely violent, despotic and abusive alcoholic who physically and psychologically abused him throughout his childhood and even into his adulthood. The abuse was so bad that Mr. Millan was hospitalized on at least one occasion as a child. His father was also physically and psychologically abusive to Mr. Millan’s mother. [ 46 ] He was an only child. Both his parents and his uncles said or did inappropriate things involving women and sex. He has been married three times.

One of the victims of his previous sexual offences was a step daughter. He has no relationships with any of the children he has fathered or lived with in the past. [ 47 ] He has apparently always worked hard, starting at a very young age, including work as an apprentice electrician and truck driver. [ 48 ] As I indicated earlier, he has previously been convicted of sexual offences against children. He was convicted of two counts of sexual assault in 1986 for sexually abusing a 15-year-old when he was 20 years old. He was babysitting younger cousins, aged five and seven.

A 15 year old relative was also in the home. After she went to sleep, he sexually assaulted her by touching and sucking on her breasts. The next night, he was wrestling with her, and touched her breasts and kissed her. When she tried to push him away, he pushed her down, took his pants down to expose his penis, then pulled her pants down and laid on top of her; he put his penis on, but not in, her vagina.

He received an intermittent jail sentence of 60 days concurrent on each of these offences, followed by two years of supervised probation. [ 49 ] In 1994 he was convicted of sexual assault for sexually abusing his 12- year-old step-daughter when he was 30 years old. The offence involved repeated sexual assaults over six months, including kissing her, touching her breasts and pinning her down when she tried to get away.

He received a one-year jail sentence and three years of supervised probation, which included a condition that he receive sexual offender counselling. [ 50 ] The Pre-Sentence Report (PSR) filed in this matter indicates that Mr. Millan has made some connection between his own early victimization by an older female relative and his sexual offending. He has refused to ever discuss or receive therapy for the abuse, because he would not be able to face the trauma and “I would fall apart”. [ 51 ] Mr. Millan has been on probation for a total of five years in the past, after previous sexually offending.

He took the Core Sex Offender Program offered by Manitoba Justice when he was in custody for the 1994 conviction. He reportedly continued with the maintenance program upon being released on Probation. At that time, it was noted that, although he completed the programs, his growth was inhibited by his unhealthy choices, including financial mismanagement, frequently losing work, missing rent, and, most concerning, being in high-risk relationships, that is, being involved with women who had young children. Counsel for Mr.

Millan argued that this information was based on archived pre-sentence reports, which she was unable to access. Mr. Millan countered that he has always worked. [ 52 ] Mr. Millan also reported to the PSR writer that he completed five years of trauma therapy from 2005 to 2010 when he lived in British Columbia. [ 53 ] In addition to his record of previous sexual offences against children, Mr. Millan has been convicted of false pretenses on four occasions, for a total of seven charges. His most recent offence is uttering threats, from 2006. [ 54 ] Counsel for Mr.

Millan argued that his moral culpability is affected by the fact he was also sexually abused as a child. I disagree. He is a previous child sex offender who had the opportunity to receive treatment and counselling to rehabilitate. As someone who has previously been convicted of sex offending against children, he should therefore be well-aware of his risks, triggers and offending cycle. Instead, he appeared to deny his sexual attraction to children, and he refused to fully participate in his rehabilitation by discussing his own abuse history as a victim.

His history of getting involved with women with young children is concerning, given the

current offences, where he is fixated on incest and having “daughters” that he can then sexually abuse. [ 55 ] He has very little community support. His mother is elderly and has recently entered a nursing home. She is not aware of these charges. He has no siblings. One friend who was contacted by the PSR writer had misinformation about the circumstances of the offences. Mr. Millan’s counsel argued that his friend is aware of the charges and speaks to Mr. Millan frequently. [ 56 ] Mr. Millan disagreed or justified several things in the PSR only at the time of argument by his counsel.

I observe that the PSR was available over two weeks before the beginning of the sentencing, and almost two months before the sentencing continuation date, but at no time prior to the sentencing did Mr. Millan take issue with the factual information in the PSR. Nor did his counsel advise the Crown that a Gardner hearing would be required. It is difficult to assess the weight I can attach to unsworn and untested evidence that Mr. Millan provided to the court in this circumstance. Moreover, it appears that this information and the timing of its disclosure is consistent with Mr.

Millan’s history of victim-blaming, minimizing, and excusing his criminal conduct. In that regard, the PSR states: Regarding the current offences Mr. Millan largely minimized or excused all of his actions, and diverted any blame to either the victim or police. . . He claimed to have no sexual interest in children or any of the sexual acts depicted in the chats, instead suggesting that he was attempting to anger the other person . . . Mr. Millan minimized his chat behaviour by stating he had no interest in hands-on offending and “nothing would have happened” had he and the victim met in person.

This should be considered within the context that the subject has a history of sexual offending against underage girls. Archived file information also indicated that Mr. Millan has a history of blaming others, excusing, minimizing and justifying his own actions. OTHER RELEVANT SENTENCING PRINCIPLES,

SECTION 718.2 Aggravating factors (s. 718.2(a)) [ 57 ] It is aggravating that Mr. Millan committed these offences as a previous child sex offender. It is aggravating that he has previously been given the benefit of rehabilitation and has either undermined it or not fully engaged with it. [ 58 ] It is aggravating that he minimized the offences and blames the victims for initiating the sexual talk.

A cursory review of the text and email conversations make it clear that he was the initiator and aggressor. [ 59 ] A useful list of the main aggravating and mitigating factors considered in child pornography offences was set out by Justice Malloy in R. v. Kwok , CanLII 2942 (ONSC), as follows; I have emphasized the relevant aggravating factors in Mr. Millan’s case by underlining them: Not surprisingly, each case turns on its own particular facts. However, an analysis of the case law does reveal an emerging consensus on the relevant factors to be taken into account: see, in particular, R. v. Parise , [2002] O.J.

No. 2513 (Ont. C.J.) ; R. v. Mallett , [2005] O.J. No. 3868 (Ont. S.C.J.) . Generally speaking, any of the following are considered to be aggravating factors: (

i) a criminal record for similar or related offences ; (ii) whether there was also production or distribution of the pornography; (iii) the size of the 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 child pornography thereby contributing to the sexual victimization of children for profit as opposed to merely collecting it by free downloads from the Internet. Generally recognized mitigating factors include: (

i) the youthful age of the offender; (ii) the otherwise good character of the offender; (iii) the extent to which the offender has shown insight into his problem; (iv) whether he has demonstrated genuine remorse; (

v) whether the offender is willing to submit to treatment and counseling or has already undertaken such treatment; (vi) the existence of a guilty plea; and (vii) the extent to which the offender has already suffered for his crime (for example, in his family, career or community). (at para 7) [ 60 ] It is statutorily aggravating, pursuant to s. 718.2(a)(ii.1), that he abused several children under the age of 18 both by possessing child abuse images of pre-pubescent children, and in creating dialogue about very disturbing, violent child sexual abuse involving very young children, including babies, incest, bestiality and explicit involvement of extra-vulnerable children, like transgendered, “black” and “Indian” children.

He either believed he was communicating with children under the age of 18, or acted as if they were girls under the age of 18. He did not stop until it appeared that parents intervened. Mitigating Factors,

section 718.2(a) [ 61 ] Several mitigating factors were also listed in Kwok . Again, I have underlined the mitigating factors present in this case. . . . Generally recognized mitigating factors include: (

i) the youthful age of the offender; (ii) the otherwise good character of the offender; (iii) the extent to which the offender has shown insight into his problem ; (iv) whether he has demonstrated genuine remorse ; (

v) whether the offender is willing to submit to treatment and counseling or has already undertaken such treatment ; (vi) the existence of a guilty plea ; and (vii) the extent to which the offender has already suffered for his crime (for example, in his family, career or community). (at para 7) [ 62 ] Mr. Millan has pleaded guilty, and, in fact, acknowledged the possession of the images to the police from the outset. [ 63 ] Despite his continuing refusal to acknowledge that he is sexually aroused by or interested in children sexually, he is agreeing to sex offender treatment.

I am guarded in my optimism about his commitment to treatment, however, given his denial of sexual interest in children, his continuing refusal to discuss his own victimization and his victim-blaming. I would describe his commitment to treatment as equivocal, but I expect he is more committed now as a 55 year-old man; moreso than he was as a young man. [ 64 ] It appears that Mr. Millan has come to some understanding and insight about his offending since the writing of the presentence report, in discussions with his counsel. I believe he expressed real remorse at the sentencing hearing.

This contributes to the ability to

impose a sentence with a rehabilitative component and mitigates from the requirement of lengthy separation from society for the protection of children. Parity (section 718.2(b)) [ 65 ] Subsection 718.2(2) (

b) of the Criminal Code requires that: A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 66 ] The Supreme Court’s discussion of parity and proportionality in Friesen focused on addressing the ongoing and concerning degree of child sexual offending in our society, particularly in the multi-faceted manifestations allowed by computer and communication technology. The Supreme Court made it clear that sentences for child sexual offences were too low in the past. They must increase. Any cases that pre-date Friesen are therefore of limited value ( A.R. involved

summary proceedings with mandatory minimums of six months and three months for the respective charges; in R. v. Levin , 2015 ONCJ 290 , the mandatory minimums for possessing and making child pornography were, respectively, six months and 12 months and there was a joint recommendation that the minimums be imposed for those offences). [ 67 ] The case of R. v. A.A.J.T. , 2021 MBQB 3 is also of limited value because the nature of the offences and circumstances are so egregious in comparison to this case.

The offences involved horrific sexual assaults of a four year-old by the accused and the child’s mother, possession and creation of child pornography involving the victim, as well as over 500 child pornography images of children other than the child of the mother. The written child pornography involved discussions with various people on social media platforms about sexually abusing children, in which the offender “normalized and glorified” sexual acts between adults and children. He was essentially an evangelist for the sexual abuse of children.

He had an unrelated criminal record of two impaired driving offences. He received a sentence of 10 years for the making of child pornography and two years consecutive on the possession of child pornography. The total sentence in that case was reduced from 30 years to 22 years for totality. I note that the possession of child pornography offence in A.A.J.T. involved 500 images of children, whereas Mr. Millan’s involved only 25 images; for the possession of 500 images, the sentence imposed was two years. [ 68 ] The case of R. v.

Bell , 2018 BCPC 187 involved a 36 year-old offender without a criminal record, who pleaded guilty to luring, making child pornography consisting, in part, of written communications, as in this case, and distributing child pornography. There were 110 images and one video in his pornography collection, which demonstrated a similar degree of seriousness as in this case, that is, involving nude pictures of girls made to pose provocatively and girls subjected to penetrative sexual activity, but only one-quarter as many images in number.

The offender believed the child he was involved in chatting with on Kik messenger was 14 years old. The content of the conversations was extremely aggravating; they involved a similar theme as the communications by Mr. Millan, that of “incest families”. The Court noted the harm in distributing written pornography, which could incite violence against children, as well as normalize and promote harmful sexual victimization of children. In Mr. Millan’s case, there was no distribution of the communications he had with the other people, but it is possible they have been distributed by those people. Unlike Mr.

Millan, the offender did not have a criminal record and was considered a low to moderate risk to reoffend. He was sentenced to two years on the making child pornography offence. I note this case pre-dated Friesen . [ 69 ] In R. v. Walker , 2021 ONSC 837 , the offender was found guilty after trial and was sentenced on the offences of possessing (s. 163.1(4)) and making child pornography available (s. 163.1(3). He was 46 years of age at the time of sentencing, with a steady work history, no criminal record and significant community support. Mr.

Millan is similarly aged, has a steady work history, but limited, if any, community support and a related record of three sexual offences. He pleaded guilty, albeit after challenging the warrant. Mr. Walker’s “collection” involved 43 videos and 17 images of children between the ages of three and 14 years old, involving penetration by adults and some additional egregious acts not present in this case. Justice Fowler Byrne applied the list of six “significant factors” outlined in Friesen for determining a fit sentence for child sexual abuse offences.

She found that the offender presented no evidence that he was a low risk to reoffend, that there was no breach of trust, that his file-sharing allowed for unlimited frequency of the children in the videos and images being re-victimized by other watchers, that the young ages of some of the victims was extremely aggravating, that the types and nature of the acts perpetrated against the children were extremely violative and aggravating, and that there was an absence of victim participation. The circumstances of the offences in Walker are more aggravating than in Mr.

Millan’s case, in terms of the existence of video, and the nature of the acts perpetrated on the children. A sentence of two years was imposed for the possession of child pornography and a concurrent three years for the offence of making pornography available. [ 70 ] In R. v. Murty , 2021 ONSC 2801 , the offender, who was approximately 50 years old, pleaded guilty and was sentenced for possession of child pornography and making child pornography available. He was trading and streaming child pornography and providing others access to an online conference room where the host could stream video.

He was communicating with individuals in the “conference room” including an undercover police officer. The collection was large: 1770 images and 832 videos many in plain sight, and several more hidden. The victims were mainly boys and babies under the age of 12, many of them toddlers and babies, with anal and oral sex inflicted on them. The size of the collection was much larger than the collection in Mr. Millan’s case. The offender was raised by his biological parents and was the middle child of three; his parents did not accept his sexual orientation when he told them at the age of 16 that he was gay.

It appeared to have impacted him profoundly. He was diagnosed as suffering from anxiety disorder and persistent depressive disorder by the psychiatrist who assessed him for the sentencing. He had previously attempted suicide three times. He was underemployed and then unemployed. He denied many aspects of the offences and being sexually attracted to children. He was diagnosed as pedohebephilic (sexual interest in prepubescent children). He lived without support and was a recluse. He did not have a criminal record. The Court relied on Friesen and R. v.

Inksetter , 2018 ONCA 474 in imposing the sentence of three years concurrent on each of the offences. [ 71 ] The child pornography collection found in R. v. Jerrett , 2021 ABQB 87 , was huge: 17, 657 images and 108 videos of children between infancy and their teens. He was found guilty of the charges of possessing and accessing child pornography. The issue of separation from society in this case was moot, given that the offender was serving a life sentence for murder.

The Crown sought a concurrent sentence (to the murder) of two years on each offence; the self-represented accused requested the maximum five year sentence on each offence. The Court found that there were no mitigating factors, the nature of the pornography was on a medium scale

of depravity, and, taking Friesen into account, the sentence should be significantly greater than the mandatory minimum. He was sentenced to two years concurrent on each offence. [ 72 ] In R. v. Rule , 2021 ONCJ 264 , the 70-year-old retired teacher pleaded guilty to accessing and possessing approximately 100,000 images and videos of child pornography. The C3P was able to identify three of the victims in the images or videos, who provided victim impact statements to the court.

The offender did not have a criminal record, had a sterling reputation in his community, and was the primary caregiver for his 92-year-old mother. In addition, he had significant medical issues, including rectal cancer which was at the post-treatment stage, although there were ongoing issues with his stoma and ostomy bag, as well as COPD. The defence sought a finding that the mandatory minimum sentence was unconstitutional and should not be applied to him; rather, a conditional sentence order should be imposed.

Justice Baxter found that this was not an extraordinary case warranting a departure from the stiffer sentences required for child sexual abuse offences, and imposed a concurrent 22-month sentence. The size of the collection dwarfs that of the collection in Mr. Millan’s case. Otherwise, many of the mitigating factors present in this case are absent in Mr. Millan’s case. [ 73 ] In R. v. Massey , 2021 ABQB 146 , the offender was sentenced for making child pornography similar to this case, that is, based on text message conversations he had with an under-cover police officer posing as a 13-year-old girl.

There are several distinguishable factors in the case: first and foremost, that the sentencing judge found that the Supreme Court had not addressed the kind of situation where a police officer is posing as a child, such that the focus on the harm caused to children was not relevant in Mr. Massey’s case, so that the upward push in sentences that was strongly suggested in Friesen was not a relevant factor, according to the sentencing judge.

There were other significantly mitigating factors in Massey , including that the offender did not have a record of sexual offences against children, or any criminal record at the time of the offence; that he was genuinely remorseful and insightful; that he worked as a volunteer and then paid capacity at a food bank; that he had significant home and community support; and that he filed many supportive letters of reference. The accused had also challenged the mandatory minimum, which the Crown conceded was unconstitutional. A sentence of three months to be served intermittently was imposed.

A FIT AND APPROPRIATE SENTENCE [ 74 ] The Supreme Court of Canada in Friesen offered a checklist of significant factors to be considered when sentencing child sexual abuse offences. The following applies these factors to Mr. Millan’s case. Likelihood to Reoffend [ 75 ] The Supreme Court stated that likelihood to reoffend was a significant factor to consider in determining a fit sentence for offenders convicted of child sexual offences. [ 76 ] Mr. Millan faces an increased likelihood of reoffending. He has convictions for sexually offending against children, in 1986 and 1994.

He has gravitated to relationships with women who have young children. He was victimized sexually as a child between the ages of four and 11 by an aunt and the abuse has not been treated. He had the benefit of sex offender treatment, yet has reoffended and remained intransigent to fully address this victimization as the only way to protect children from him in future.

It was not until after these offences were committed that he told the PSR writer that he “is eager to complete offence-specific programming to “learn more” about himself” and his counsel stated at this sentencing that he now wishes to undertake sexual offender treatment. He has been on probation for lengthy periods in the past, after being sentenced for his previous sexual offences against children, but he was not rehabilitated.

These circumstances, coupled with his fixation on having incestuous sex with babies and very young children as evidenced in the chats, are further indications of the present risk. [ 77 ] The PSR states that he is a high risk to reoffend in a general manner and that he is a “well above average risk” to reoffend sexually. He is in the 94 th percentile of sexual offenders in routine correctional samples, which means that out of 100 sexual offenders, 92 would have a lower score and four would have a higher score. Counsel for Mr.

Millan took issue with the accuracy of the scoring assigned to various risk factors, and, in her review, would have arrived at a different score that would categorize Mr. Millan as a medium risk, rather than “well above average” risk. [ 78 ] The PSR writer has additional concerns about Mr. Millan, above and beyond what the Static 99R sexual offender risk tool measured and she concluded that he was not a suitable candidate for supervision in the community at this time: Of particular concern is that Mr. Millan has reoffended after completing offence-specific programming. Additionally, Mr.

Millan has not demonstrated any insight into his behaviour or empathy towards the victim. Another consideration is that Mr. Millan not only minimized and excused his behaviour for this offence but has reportedly consistently done so throughout his time in the justice system. Upon consideration of these factors as well as his history of sexual offending, his high risk to reoffend in a general manner and above average risk to reoffend in a sexual manner it is this writer’s respectful opinion Mr. Millan not be considered a suitable candidate for community supervision at this time. [ 79 ] Counsel for Mr.

Millan argued that he was unaware of the harm that pictorial images of child pornography caused to real children until his bail hearing. He obviously did not communicate this to the PSR writer. [ 80 ] He also alleged that he participated in five years of trauma therapy, which, again, has not prevented him from reoffending in a sexual manner against children. His counsel also argued that 30 years ago, when he last participated in counselling, the electronic chats he engaged in would not have been contemplated. [ 81 ] At the time these offences, Mr. Millan was living across the street from an elementary school.

Again, counsel for Mr. Millan stated that it was chosen as affordable housing, not as housing where young children congregated, for any pedophilic purpose. [ 82 ] These are faint comfort in light of Mr. Millan’s history of offending, the nature of the current offences, and his history of minimizing and redirecting concerns that justice authorities have about him. [ 83 ] The Supreme Court has directed that individuals who have a likelihood to reoffend should be separated from society. Chief

Justice Wagner and Justice Rowe stated as follows in Friesen : Where the sentencing judge finds that the offender presents an increased likelihood of reoffending, the imperative of preventing further harm to children calls for emphasis on the sentencing objective of separating the offender from society in s. 718 (

c) of the Criminal Code . Emphasizing this objective will protect children by neutralizing the offender’s ability to engage in sexual violence during the period of incarceration (see J. (K.R.) , at para. 52). The higher the offender’s risk to reoffend, the more the court needs to emphasize this sentencing objective to protect vulnerable children from wrongful exploitation and harm ( M. (L.) , at para. 30; S. (J.) , at paras. 39 and 84). (At para. 123) [ 84 ] As the Supreme Court noted in its discussion of the likelihood to reoffend in Friesen , this factor also engages the objective of rehabilitation.

Barring the confinement of Mr. Millan to custody for the rest of his life, protection of children requires that he heal and rehabilitate so that he no longer represents an unmanageable threat to children. Clearly, the Crown had this in mind when seeking a jail sentence that would still allow for a lengthy probationary term. ( Friesen , at para. 124 ) [ 85 ] Mr. Millan has also expressed an interest in learning more about the harm caused by child pornography and is willing to receive meaningful sex offender treatment. He has not done any rehabilitative work while in jail on remand status.

While I recognize that sex offender treatment is generally not available when a person is on remand status, and COVID has greatly reduced programming generally, I have seen many remand inmates over the past two years who have made commitments to their rehabilitation and have done a lot of work in individual counselling sessions, workbooks, seeing elders or spiritual care givers and so on. Abuse of a Position of Trust or Authority [99] The children involved in these offences were strangers to Mr. Millan. This factor does not play a role in his sentence.

Duration and frequency [100] This was not a factor in this case, unlike in A.A.J.T. , where the accused was communicating with and counseling others to commit sexual offences against children, or engaging in sexual assaults on his step daughter, on a daily basis with multiple instances per day. Age of the victims [101] This is an aggravating factor in this case. The images involve girls as young as one year old. The written communication is promoting incest on children as young as infants. Degree of physical interference [102] There was no actual physical contact in this case, so it is not a factor to consider.

Victim Participation [103] Because the Crown cannot establish that the people Mr. Millan was communicating with were under the age of 18, I cannot find that the victims participated. However, if they were under the age of 18, they participated fully in the discussion of him abusing and debasing them and the babies they would have for him. SENTENCE [104] The sentence I am imposing is because not only are the objectives of denunciation and deterrence engaged, the objective of separating the offender from society is also engaged. This is because of the risk Mr. Millan poses to children to this day.

I am hopeful that he will commence rehabilitative programming and treatment while in custody so that by the time he enters the community, he can be safely supervised and will continue to receive necessary treatment for the protection of children in the community and for his well-being.

As his rehabilitation progresses, he will incorporate a better understanding and appreciation for the offences he has committed to acknowledge the harm done and make reparations. [105] The sentence reflects the gravity of the offence, his moral culpability in committing it, and the new regime of sentencing child sexual offences signaled by Friesen . In reviewing all the cases filed, I have sought to impose a sentence that balances the much smaller collection of child pornography images involved in Mr.

Millan’s case than in most of the cases filed, with his elevated moral culpability because of his previous sexual offending against children, as well as the fact that he has had opportunity to address his offending behaviour in the past. [106] The sentence on making written child pornography materials will be two years. The content of the written communications was particularly violent, repugnant and offensive to children and society.

It was frightening because of his past offending against children and pattern of behaviour suggesting he wanted to place himself near children. [107] The sentence on possession of child pornography will be 17 months, mostly in consideration of the small size of the collection, balanced with the serious content involved. The sentence will be consecutive because, although it is not required statutorily by

section 718.3(7), I am imposing it consecutively because the offence is different and there are different victims. [108] The sentence for breach of the release order by possessing a cell phone with camera, password and internet capabilities will be one month consecutive. [109] That is a three and one half year sentence. Expressed in days, that is 1,314 days. [110] It will be reduced by the time Mr. Millan has been in remand custody, which, when credited at a rate of one and a half days for

every day he has spent in custody, is 777 days. (In years, that is 2 years, one month, 2 weeks and 2 days.) Mr. Millan’s remaining sentence will therefore be 537 days. That is just under 1½ years. [111] Mr. Millan’s jail sentence will be followed by three years of supervised probation.

The conditions of the Probation Order are: • You must report to your probation officer within two working days after your release and thereafter as directed; • You must notify your probation officer of any change of address or occupation; • You must attend, participate in, and complete any and all assessments/counselling/programming recommended by your probation officer, including sex offender treatment; • You shall not possess, view, or access any pornographic images or videos; • You shall not possess, view, or access any images of children who are depicted to be or who appear to be under the age of 18 years, and who are naked or portrayed in a sexual manner; • You must not use the internet or other digital network except under the following conditions, and while in compliance with all remaining conditions in this order: o For purposes directly relating to legitimate education, employment, banking, formal rehabilitative treatment, online streaming of non- pornographic television/movies, online news, or communicating with government agency; o You may use a telephone only for communications with persons confirmed to be over 18 years of age; o You must not communicate with anyone under 18 years of age or anyone purporting to be under 18 years of age. • You shall not access or use any peer to peer/file sharing networks; • You must not use or access any social media or dating websites or apps or any chatrooms, including but not limited to: o Adult Friend Finder (AFF) o Facebook o Kick interactive Inc. o Google Hangouts o Instagram o Telegram o TikTok o Snapchat o Discord o Whisper • You shall not distribute, publish, post, or make publicly available in any way, information, including comments and images which refer to or depict sexual activity involving persons under 18 years of age or who are depicted to be under 18 years of age; • You shall not access or use any social media websites or apps to upload, download, receive, or send any images or videos; • You shall not use or access any Cloud server (i.e. external storage device) for the purpose of uploading or saving images/videos obtained from the internet; • You shall not possess or use any encryption or any computer wiping software or other means or device that could preclude access for a forensic examination of any computer system, cell phone, electronic storage device, data storage device, memory card, or portable media device in your possession or which you can access; • You must not password protect any device in your possession, unless it is a device used solely for employment purposes and owned exclusively by an employer who requires that it be password protected; • You shall submit to any demand by your probation officer or a Peace Officer, without warrant or reasonable and probable grounds, to do a basic search or a forensic analysis on any computer system in your possession under the following circumstances: o Up to twice a month, during the hours of 7:00 a.m.-9:00 p.m. for the purpose of verifying compliance with these conditions, o You shall provide any password on a device in your possession to the officer to enable the search or forensic analysis, o You shall provide any user information and password for any personal accounts (server, app, or website) to the officer to enable the

search or forensic analysis. • You are not to attend any public swimming area where persons under the age of 18 years are present or can reasonably be expected to be present, or a daycare center, school ground, playground or community center; • You are not to seek, obtain, or continue employment, become a volunteer in a capacity that involves being in a position of trust or authority over a person under the age of 18; • You must not have any contact, including communication by any means, with a person who is under the age of 18 years, except in unavoidable encounters in public places where persons under the age of 18 years are not reasonably expected to be present. [112] I will not impose a victim surcharge, given that Mr.

Millan will continue to be in custody for some time. [113] The following ancillary orders are also made: • SOIRA –

section 490.013(2.1) and (4) - Lifetime • DNA – primary designated offence •

Section 109 – 10 years • Forfeiture –

section 164.2 o LG Smartphone LG-H812 (exhibit S2 – E1) o Samsung Smartphone SM-A520W (exhibit S2-E2) •

Section 161 Prohibition (Lifetime) o You are not to attend any public swimming area where persons under the age of sixteen years are present or can reasonably be expected to be present or a daycare center, school ground, playground or community centre; o You are not to seek, obtain or continue employment, become a volunteer in a capacity that involved being in a position of trust or authority over a person under the age of 16; o You must not have any contact, including communication by any means, with a person who is under the age of 16 years except in the following circumstances: - Unavoidable public encounters; o You must not use the internet or other digital network except for under the following circumstances: - For purposes directly relating to legitimate education, employment, banking, formal rehabilitative treatment, online streaming of non- pornographic television/movies, online news, communicating with government agency. - You may use a telephone for communication with persons confirmed to be over 18 years of age. - You must not possess or access any pornography online. - You must not communicate with anyone under the age of 18 years of age or anyone purporting to be under the age of 18. o You must not use or access any social media or dating websites/apps or any chatrooms, including but not limited to: - Adult Friend Finder (AFF) - Facebook - Kik Interactive Inc. - Google Hangouts o You must not distribute, publish, post or make publicly available in any way, information, including comments and images which refer to or depict sexual activity involving persons under the age of 18. o You must not possess, use or access any peer to peer file sharing programs. o You must not possess or use any software for the purpose of encryption. o You must not password protect any device in your possession, unless it is a device used solely for employment purposes and owned exclusively by your employer who requires that it be password protected. o You shall submit to any demand by a peace Officer, without warrant or reasonable and probable grounds, to do a forensic analysis on any computer system (as defined in

section 342.1(2) of the Criminal Code ) in your possession, up to once a month, during reasonable hours, for the purpose of verifying compliance with this order.

”Original signed by:” C.A. Devine, P.J.