R. v. R.(A.), 2013 ONCJ 221

WARNING The court hearing this matter directs that the following notice should be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 Offence. —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. COURT FILE No.: 12-10389 DATE: April 15, 2013 London, ON Citation: R. v. R.(A.) , 2013 ONCJ 221 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — A.R. Before Justice J.C. George Heard on February 4 & 25, 2013 Reasons for Decision on Sentence released on April 15, 2013

C. Yih ........................................................................................................................ for the Crown C. Dobson ......................................................................................................... for the accused A.R.

GEORGE J.: CHARGES [ 1 ] A.R. pleaded guilty to and was found guilty of the following offences: -making available child pornography in the form of a digital image; -two counts of surreptitiously observing and recording a person who could reasonably expect to be nude; -accessing child pornography in the form of a computer picture file; and -possessing child pornography in the form of a computer picture file. [ 2 ] The dates of the offences are from January 1st, 2008 through to December 2nd, 2011. FACTS [ 3 ] The facts are as follows.

On April 5, 2012 A.R. accessed an internet website and purchased pornographic photographs. I'm told he believed he was conducting a legal transaction and as such provided his name, address, email address, and phone number to the seller. He received six separate files at a cost of $53.70, downloading them directly from the website. [ 4 ] These were described as high quality images, many of which met the definition of child pornography; including images of prepubescent children lying on their backs with their legs spread apart exposing their undeveloped sex organs.

In June, 2010 he purchased additional photographs from this same website, using the same information, this at a cost of $14.95. These files contained 315 separate digital images depicting nine to thirteen year old boys playing games naked. [ 5 ] After an investigation, and upon the police reviewing these images, a search warrant was obtained for A.R.’s residence. This warrant was executed with the search yielding thousands of images and videos almost all falling within the definition of child pornography.

Examples of these included prepubescent males naked, some showing them engaged in sex acts (both with other prepubescent males and some with adult males), including touching, fellatio, and anal intercourse. [ 6 ] A second search warrant was obtained and executed. During this search the police seized a computer tower and digital camera. These devices contained surreptitiously captured video recordings of a bedroom occupied by A.R.’s thirteen year old nephew, and inside a bathroom used by that child. These show the young boy changing his clothing, and using the toilet.

Respecting the voyeurism counts, an order was made protecting the identity of the nephew, and the written version of these reasons will reflect that. [ 7 ] A.R. accepts full responsibility for hiding the camera and recording his nephew. He acknowledges accessing and possessing child pornography, going so far as to tell the officers that he had upgraded to a particular software program that they had not yet discovered (gigatribe membership). This in turn led to a further forensic examination of his computer, and of a folder contained in an external hard drive.

This folder was divided into 45 subfolders, which contained pictures of child nudity and some with children engaged in sex acts. [ 8 ] A.R. acknowledges that he shared some of the child pornographic images on the internet with others. He did not distribute or share the videos of his nephew.

[ 9 ] In total, 7581 images and videos were reviewed. I was told that several thousand more files were located, but not analyzed, given the nature of what was already seen and with a view that it was not reasonable to look at and analyze everything, given the volume. [ 10 ] The facts were acknowledged by A.R. with his counsel pointing out that he was at all times cooperative. I was told that he advised the police of his gigatribe membership and provided them with all of his passwords.

I learned as well that A.R. had discontinued his membership prior to police involvement, which is tempered by the fact that he was, obviously, still in possession of the images obtained through that membership and had not deleted or disposed of them. It is therefore reasonable to conclude he was still using them for his own gratification. [ 11 ] The Crown specifically requested that I view a sampling of the images, with the defence only mildly objecting, pointing out that the Court need not view them should they so choose.

In these circumstances, given the application that specifically requested a viewing, and upon me being confident that such a presentation would not unduly prejudice me or render these proceedings unfair, I did view a small sampling. I viewed them in the presence of both counsel and the investigating officer. POSITIONS OF PARTIES Crown [ 12 ] The Crown seeks a three year jail sentence. It seeks several ancillary orders including a DNA order; a SOIRA order; forfeiture orders relative to all items seized (except for any family photos on the various devices); and a twenty year prohibition order under

section 161, subsections (a), (b), (

c) and (d). [ 13 ] Highlighted were the aggravating features of this matter, not the least of which is the enormity of the collection, which obviously took considerable time and effort to compile and organize. The nature of the collection is most concerning, which was described earlier. The Crown asked that it not be lost on me the global nature of child pornography, and how many of the images and videos were produced abroad. The point being the victimization is wide-spread and not confined to any particular country or region.

The re- victimization is perpetuated by A.R. and those of like mind. [ 14 ] The Crown, in acknowledging the mitigating aspects of this matter including the mental health issues, the guilty plea, and lack of record, submits that rehabilitation should be a goal secondary to those of deterrence and denunciation.

That is, at least to denunciation, the sentence must be of sufficient length to send the message to the public that this type of behaviour will not be tolerated and will attract significant consequences. [ 15 ] In addressing all of the relevant sentencing principles and factors, the Crown stresses the need to separate A.R. from society for a period of time, submitting this need not be mutually exclusive to his rehabilitation. In support of a three year penitentiary sentence the Crown points out that, relative to the voyeurism counts, this was a breach of trust which is a statutorily mandated aggravating factor.

It further asks that I conclude A.R. is a pedophile which, if I did so conclude, should be considered in aggravation. [ 16 ] Notwithstanding any sincere desire to get help, which the Crown concedes A.R. has, it submits this desire has in the past become overwhelmed by his sexual deviances. In that sense, the public needs to be protected for as long as is reasonably allowable.

The Crown characterizes A.R. behaviours as escalating over the course of several years, becoming more pronounced, riskier, to the point of directly and negatively impacting a young family member, and his ability to maintain his marriage and be a responsible family man. Defence [ 17 ] Counsel for A.R. takes no issue with the ancillary orders sought, but suggests a jail sentence that significantly varies from the Crown's position. Cases were filed and referred to which set out a breadth of sentencing options, all of which include the imposition of some jail.

[ 18 ] The aggravating factors are not disputed, but for one. The defence objects to any finding that A.R. is a pedophile relying on the report and evidence of Dr. Mejia, which I will discuss in a moment. [ 19 ] Quite apart from anything to be considered in mitigation, some effort was made to distinguish A.R.’s offending behaviour from those which have attracted jail sentences at the highest end of the scale.

For instance, in placing the images and videos on the spectrum, as horrific as they are, they do not contain the level of depravity sometimes seen, such as the involvement of toddlers and infants, or what we might term high levels of violence.

Highlighted for me - relative to the collection, accessing and distribution of the images - was the fact there is no evidence of direct interaction with or the grooming of victims, and that the distribution was limited to others being able to access the images which he made available as opposed to sale for profit. [ 20 ] The defence contends, and I agree, that guilty pleas, cooperation, sincere expressions of remorse, and genuine efforts to get help must mean something in the sentencing process, not just in words and kind bouquets from the Bench but in a tangible way.

As opposed to paying these things, which should be to one's credit, lip-service, it should actually be reflected in the quantum of sentence, if it is reasonable to do so. In their view a fit and proper sentence, after balancing all of the aggravating and mitigating features, and in light of A.R.’s particular circumstances, should be in the range of twelve to eighteen months. The defence points out that a sentence in this range would allow for a lengthy period of probation which would, at the end of the day, be to the public's benefit.

A.R.'S BACKGROUND AND PARTICULAR CIRCUMSTANCES [ 21 ] A pre-sentence report was prepared and filed. From that, and from defence counsel's submissions, I learned the following about A.R.. He is 42 years old and has no prior criminal record. He is currently unemployed as he has been bound by the strictest possible bail terms since his release, including a house arrest provision. He has been required to live with his parents and he has been compliant with his bail terms throughout. He spent six days in custody before obtaining bail.

Before his arrest he had been gainfully employed for most of the past two decades, including as a newspaper carrier, lawn care labourer, general labourer, front desk agent, and as a systems administrator and manager. [ 22 ] He is married, but separated from his spouse. They have no children, but did together care for a foster child from June until November, 2010. [ 23 ] A.R. is clearly remorseful. He is embarrassed and ashamed and is willing and eager to participate in programming and treatment.

His sexual deviances and inclination to view such images are, according to the report, urges which he knows are wrong but at times is simply unable to control. To the author of the pre-sentence A.R. describes himself as a "closet pedophile" and explains the act of collecting the inappropriate photos as an "addiction". The report's author concludes that A.R. to some extent minimizes his conduct on the basis that he sees himself more as a collector than a predator. I don't know whether this characterization is accurate.

I am prepared to accept A.R. honestly views himself in this way as, at least on the evidence, he has never acted out on the urges in the sense he has not attempted to be intimate with a child, or to lure a child via the internet or by other means.

I would say however that the voyeuristic behaviour described is more consistent with a predatory profile than the ‘passive observer’ view A.R. holds of himself. [ 24 ] A.R. is resigned to the fact that jail will form a part of his sentence, and specifically requests that any sentence be in the reformatory range in order that he can receive the benefit of intensive, focused treatment at either the Ontario Correctional Institute (OCI) or St. Lawrence Valley Correctional and Treatment Center. [ 25 ] To support the notion that A.R. is sincere in his desire to get help, the defence highlights his efforts to date.

A.R. has been under the care of psychiatrist Dr. Mejia since approximately May of 2012. In addition to the sexual issues identified, I am told he is being treated for depression and anxiety, and that he is currently on medication for each of these conditions. EVIDENCE OF DR. MEJIA [ 26 ] The defence filed a report from forensic psychiatrist and Western University associate professor Dr. Mejia. Dr. Mejia was tendered for cross examination as the Crown took issue with many of his conclusions.

[ 27 ] Dr. Mejia details A.R.’s psychosexual development. It was in A.R.’s early twenties that he began to collect clippings from magazines that pictured boys scantily dressed. Even though he felt attracted to women there was some confusion as to sexual preference. It was during the course of his first and only true heterosexual romantic relationship, with the woman who eventually became his wife, that he discovered he was impotent. This, understandably, caused significant discord in the relationship. According to Dr.

Mejia it was as a result of this dysfunctional sexual relationship that he resorted to pornography. Dr. Mejia believes A.R. became obsessed with internet pornography. A.R. reported to Dr. Mejia that he stopped accessing pornography at the point he and his wife contemplated adoption, and during the time they had the foster child in their care. [ 28 ] In describing A.R. as having "no deficits in judgment, abstraction or reasoning", Dr. Mejia concludes that he has a strict sense of morality.

He goes on to describe A.R. as being "very self-punitive", and as having a difficult time understanding his own circumstances and how his sexual development has led to his current difficulties. [ 29 ] At pages 7 and 8 of the report, Dr. Mejia states the following: It is very well known in the sexology field of research that stress tends to increase the frequency of sexual encounters and brings down the selectivity of attraction particularly if availability is not a hindrance.

Yet, (A.R.) has never either indulged in substances or sexual abuse despite the multiple times in which he could have done it without detection. Dr. Cantor from Toronto's Center for Addiction and Mental Health, has recently documented the fact that people suffering from egodistonic pedophiliac tendencies as it is (A.R.’

s) case, differ greatly from child molesters. The first tend to be law abiding individuals who often have soft neurological signs suggesting some level of dysfunction in the central nervous system, usually not detected unless it is specifically and comprehensibly studied. These individuals don't ever incur in predatory actions to engage in illegal sexual acts affecting minors and often seek help recognizing their potential for inadequate behaviours.

Comparatively child molesters are known to predatorily or opportunistically seek the occasion to perpetrate sexual offences and a posteriory excuse for their actions with irrational arguments related to how the victims wanted the encounter, or are lying or making up stories that exist only in their young minds.

From the scientific perspective, those who are not child molesters seem to have a deficiency in white mater that may cause stimuli intended to elicit nurturance in the beholder, to elicit sexual arousal, confusing the individual who then actively rejects any acts directed to satisfy their deviant inclinations. Many of them live tortured by such attraction and resort to various different ways to control their abnormal sexual drive. These mechanisms though, are not infallible and could be overwhelmed by contingencies in the environment. [ 30 ] Dr. Mejia's ultimate conclusion is that A.R.

"doubtfully" meets the criteria for a diagnosis of pedophilia, and could not properly be described as a child molester. He further concludes that A.R. is a very low risk to relapse into his paraphilic actions and that there is nothing predatory about his personality. [ 31 ] Dr. Mejia's opinion is that A.R. will receive no benefit from a custodial sentence and that treatment and counselling has and will continue to be quite productive. [ 32 ] The Crown vigorously challenged Dr. Mejia's contention that A.R. is not a pedophile. [ 33 ] Pedophilia is a paraphilia.

DSM (Diagnostic and Statistical Manual of Mental Disorders) indicates the following: The paraphilias are characterized by recurrent, intense, sexual urges, fantasies, or behaviours that involve unusual objects, activities, or situations and cause clinically significant distress or impairment in social, occupational or other important areas of functioning.

The paraphilias include Exhibitionism, Fetishism, Frotteurism, Pedophilia, Sexual Masochism, Sexual Sadism, Transvestic Fetishism, Voyeurism, and Paraphilia Not Otherwise Specified. [ 34 ] The DSM description of pedophilia is extensive but at its essence is an attraction to children in a particular age range. It indicates that "some individuals with pedophilia are sexually attracted only to children (Exclusive Type), whereas others are sometimes attracted to adults (Nonexclusive Type).” This is of note because this distinction is somewhat at odds with certain aspects of Dr.

Mejia’s evidence and conclusions, and one particular portion of DSM 4.

[ 35 ] Issue was taken with the fact there was no phallometric testing, and that A.R.’s brain white matter - in line with Dr. Cantor's findings and analyses - was not tested. The suggestion is that Dr. Mejia was simply not in a position to decide this issue one way or the other. The Crown also took considerable time in having Dr. Mejia point out and confirm that A.R. indeed fits within the definition of pedophilia in many ways. For example, DSM 4 describes a pedophile as being one who only gets aroused by children and has no age appropriate sexual relations.

See my comments above respecting ‘exclusive’ and ‘non-exclusive’ types, but even assuming a ‘non- exclusive’ definition, the suggestion is A.R.’s arousal patterns perfectly align with pedophilia as evidenced by his clear interest in child nudity and sex images, while being unable to perform sexually with an adult. [ 36 ] I find this argument compelling, and I found myself as I listened to Dr. Mejia give evidence, doubting the logic and sense behind his conclusion on this point. Upon reflection, however, I cannot make the finding the Crown requests.

What gives me pause is that the DSM description of pedophilia describes someone with this condition as commonly explaining, excusing or rationalizing the behaviour, not in the way a probation officer would ascribe minimization, but rather in expressing beliefs that a child for example derives pleasure from sex; that such interaction with a child has 'educational value'; or that a child who is the target of a pedophile deserves it as they themselves were sexually provocative.

There is no evidence that A.R. either has, or even contemplated, an intimate encounter with a child despite ample opportunity to explore this. Furthermore, the best evidence before me is A.R. is repulsed by his actions and I'm aware of no justifications offered by him for the production and proliferation of child pornography. Despite his inability at times to control himself, in fact the opposite is true. He is disgusted and confused by it, and wished he didn't have such interests. [ 37 ] Dr.

Mejia is of the opinion that A.R.’s sexual interest does not rest solely in children, and that his sexual preference is still in question. Dr. Mejia did not agree with the suggestion that A.R. had no interest in women as sexual partners, indicating that all we can conclude from his erectile dysfunction is that there is insufficient blood flow, and that it would be a stretch to say this means he's only attracted to children.

I suppose this in a way highlights the Crown's concern respecting the lack of information. [ 38 ] As I considered this matter, I had a hard time rationalizing my conclusion with the voyeuristic behaviours exhibited by A.R. towards his nephew. It would seem that this could be characterized as him "acting on" his urges. It was a very direct, personal, and invasive action which required some planning, and was not

an act of just passively sitting in front of a computer screen viewing strangers. However, this is something to which Dr. Mejia addressed and he was very clear in that voyeurism, regardless of what is being viewed, is not pedophilia. This evidence was uncontradicted. LAW/ASSESSMENT [ 39 ] The fundamental purpose and principles of sentencing are found in sections 718 and 719 of the Criminal Code . [ 40 ] Several factors go into formulating a fit and proper sentence.

It is not an exact science and even though higher courts and the statute itself provides some guidance, sentencing courts are given wide latitude in undertaking this task. It is never an easy one, in particular in cases like this, where you have two able, experienced counsel proposing two very different dispositions. On the one hand a lengthy penitentiary sentence would undoubtedly send a message to the public, and it would obviously separate A.R. from society for a considerable period of time.

On the other, limiting any custodial sentence to that which is only minimally necessary is appealing in that it recognizes, given A.R.’s background and circumstances, and provided he is monitored and undergoing treatment, that the risk he poses to public safety is relatively small. [ 41 ] Accepting that a three year penitentiary sentence is, albeit not the maximum penalty allowable, the appropriate ceiling in these circumstances, and that a twelve to eighteen month reformatory sentence is, given the framework within which I must work, the absolute floor in terms of a justifiable sentence, it can sometimes feel like an exercise in randomness.

That is, what makes fifteen months better than twenty months; or three years better than two? I obviously ask this rhetorically. It becomes particularly tricky when both specific and general deterrence are in all likelihood going to be only marginally effective. A.R. has either by virtue of the fact he has been so publicly shamed by this, been dissuaded if not outright scared into avoiding this kind of activity again, or his urges will become so powerful that he won't be able to help himself.

In either case the import of this sentence will be minimal, from a specific deterrent perspective. [ 42 ] Contrary to what I’d guess is the prevailing thought which is someone like A.R. should be punished in the harshest possible way, Dr. Mejia suggests a community based disposition with sufficient safeguards and strict monitoring, all with a view to rehabilitating him. This would, according to Dr. Mejia, ultimately better protect the public in that the result of this would most likely be a healthy A.R. who was able to effectively manage his urges.

The thought here is that achieving rehabilitative objectives in a jail setting may prove to be more challenging? It’s hard to argue with that.

[43] As to general deterrence, do we really believe the sentence I impose, even if it exceeded what the Crown is seeking, will deterothers of a like mind, in similar circumstances, from committing similar crimes? Maybe it will, but I highly doubt it. [44] Denouncing this kind of behaviour is to my mind distinct from deterrence, and clearly a message can be sent to the public inimposing a particular sentence.

I will attempt to send the appropriate message in imposing A.R.’s sentence. [45] In determining a fit sentence for offences like these, in addition to an accused’ personal circumstances, several societal factorscome into play. The harm of child pornography is inherent and it is because of people like A.R. that this industry thrives. Children areharmed, and so it cannot be said this is a victimless crime. [46] The Crown has provided a brief which highlights the cases and principles to which they say I should apply. It is submitted thecases are illustrative of sentences imposed in similar circumstances.

The sentences range from twenty-one to forty-two months jail. I wasreferred specifically to the decision of Justice Dunnet in R. v. Pelich 2012 ONSC 4100 , [2012] O.J. No. 3262 where thecircumstances described were not all that different from A.R.. Mr. Pelich was a first time offender who was close in age to A.R.. Amongother similarities, the number of images in each case was extensive. [47] The Crown also referred to the case of R. v. Bock 2010 ONSC 3117 , [2010] O.J. No. 2277. Mr. Bock was found guiltyof possessing and making available child pornography.

The court described his collection as massive, which actually falls short of thecollection accumulated by A.R.. Mr. Bock was elderly and had no prior criminal record. The sentence imposed was two years and ninemonths, although it should be noted that in doing so the court concluded that there was no prospect of rehabilitation. [48] The Crown referenced others, all of which contained similarities and distinctions with these facts and A.R.’s circumstances. [49] Defence counsel submitted several cases which set out ranges of sentence more consistent with their position.

I have reviewedeach of those authorities carefully as they are all instructive, if not binding. [50] Having reviewed the materials provided and after considering counsel's submissions, it is clear that I should adopt an analysissimilar to that which was employed by Justice Molloy in R. v. Kwok (ON SC), [2007] O.J. No. 457. In doing so,while acknowledging that denunciation and deterrence are paramount, I must note the following: 1.

A.R.’s lack of prior related record; 2. beyond making certain images available, that there was no production; 3. the size of the collection, which was extremely large; 4. the nature of the collection, which is horrific, but placing it on the spectrum not at the absolute highest end relative to its level ofviolence and depravity; 5. although I'm suspicious, the fact I am in no position to conclude A.R. is a pedophile; 6. the fact this was not a commercial enterprise, there being no evidence of sale for profit; 7. that A.R. is not a youthful offender;

8. the tremendous insight he has shown into his problems; 9. the fact he has demonstrated genuine remorse; 10. that not only is he willing, but has demonstrated an ability to be treated; 11. the guilty plea; and 12. the fact A.R. has suffered consequences for this crime, separate and apart from any penalty I impose. [51] In reviewing the above, save and except the sizeable collection, and perhaps the fact he is not a youthful offender, most points areto A.R.’s credit.

This distinguishes him from the individuals sentenced in most of the Crown's submitted cases. [52] In addition to the size of the collection, the aggravating feature to this piece is the behaviour underlying the voyeurism counts. This is despicable conduct, which, and I agree with the Crown on this point, illustrates how risky A.R.’s behaviours were becoming. Itwas evolving, and getting progressively worse. This escalation causes me to wonder, at what point was this going to stop?

I won'tspeculate any further but its alarming that the chronology is a progression from cutting out photographs from magazines, to accessingpornographic images, to making them available to others, to violating a young family member. This is to my mind a relevantconsideration, and an appropriate question to at least ask insofar as it impacts the need to protect the public. [53] I believe a fit sentence is in the penitentiary range. Absent the voyeurism counts and were the size of the collection not to theextent it was, I might have agreed with the range suggested by the defence. I cannot.

A.R.’s circumstances do garner some sympathywith me and rehabilitation is a real possibility. I take no pleasure in committing him to a period of custody, but even the high end of thesuggested range is too low. The breach of trust, along with the size of the pornographic collection would make the imposition of atwelve to eighteen month sentence inappropriate. [54] In the normal course, on these facts, with similar mitigating and aggravating features, a global sentence in the range of twenty eightmonths would be appropriate.

This is a figure, quite frankly, at the lower end of the scale but, particular to A.R., recognizes the prospectsof rehabilitation, the genuine expression of remorse, the lack of prior record, and the assessment undertaken pursuant to what counselreferred to in submissions as the 'Kwok' factors. The proper apportionment would be as follows - two years concurrent on all the childpornography counts, and four months on the voyeurism counts, concurrent with each other but consecutive to the two years.

CREDIT ON ACCOUNT OF STRICT BAIL TERMS? [55] Having said that, to what extent does the fact A.R. has been subject to the strictest possible bail terms, impact sentence? Somecourts have characterized this as a potential credit to be applied against sentence; others have described it is a factor to be considered inmitigation of sentence. Either way, if taken into account, a sentence would be moderated to the extent credit is granted. The Court ofAppeal in R. v. Downes (ON CA), [2006] O.J. No. 555 (C.A.) speaks to a sentencing court's ability to take this intoaccount on sentence.

It is not automatic and the mere fact one has been subject to strict bail terms doesn't necessarily mean credit will begranted (see R. v. Ijam [1007] O.J. No. 3396). In my view, some credit should be granted. [56] One might argue that there is no evidence respecting the impact of the bail conditions on A.R., therefore no credit should flow. What concerns me, however, is the seemingly routine imposition of a house arrest provision in matters like this. It might very well bethat in some cases it is warranted (prior related record, prior instances of bail violations, etc.). In this case it was not.

I don't believe A.R.was at any point a flight risk. It's not apparent that there was ever a basis to conclude he would not abide by the terms of a court order,for example terms that would prohibit his contact with his nephew, accessing the internet, or attending certain places. Indeed in thefullness of time we have learned that he was nothing but compliant on bail. Recognizing there has been some flexibility to enable A.R.’sengagement with Dr. Mejia, the facts suggest he has not been able to work since release. He was not permitted to live on his own andwas required to reside with his parents.

Even if my assessment on this point is wrong, the severe restriction on A.R.’s liberty during atime he was presumed innocent, when a restriction to that extent isn’t geared to any reasonable bail-related objective (at least none thatare apparent to me), warrants some credit.

CONCLUSION/ORDERS [ 57 ] To the Crown's argument suggesting a similarity in facts between this and the circumstances of the offender in Pelich who received a three and half year sentence, I note several distinguishing features. Mr. Pelich proceeded to trial and did not plead guilty. All told it took four years to complete his matter. Additionally, there was no pre-sentence report and there was an absence of psychiatric or other evidence which spoke to or demonstrated his insight into the crime. Mr.

Pelich was unwilling to undergo treatment or counselling, and there was no expression of remorse. [ 58 ] Having regard to all of the circumstances, A.R. will receive a credit of five months, which includes the six days he spent in pre- plea custody. For clarity, I have intended that a credit of four months be applied to each of the child pornography counts, and one month to each of the voyeurism counts.

No specific endorsement is required - I indicate this simply to ensure an understanding of my reasons. [ 59 ] The endorsement will be twenty months jail concurrent on each of the three pornography counts, and three months on each of the voyeurism counts, concurrent with each other but consecutive. That amounts to a global twenty-three month jail sentence. [ 60 ] I will recommend that this time be served at either the Ontario Correctional Institute (OCI) or at the St.

Lawrence Valley Treatment Centre. [ 61 ] This will be followed by a three year probation order, concurrent on all charges, with the following terms: 1. Statutory terms. 2. Report to probation within two working days of release and thereafter as required. 3. Reside where directed and approved by probation. 4. Not associate or communicate directly or indirectly with anyone named in writing by probation. 5. Undertake any assessment or take such counselling or therapy that is directed by probation, in particular as it relates to sex-offending. 6.

Not be alone with anyone under the age of 16 years, unless in the presence of a responsible adult, who is at least 21 years of age. 7. Not possess or use any device capable of accessing the internet unless its use is for employment purposes and only at the place of employment, or unless directly supervised by a responsible adult who is at least 21 years of age, and who is approved in advance by probation. [ 62 ] A.R. will be ordered to comply with the provisions of the Sex Offender Information Registration Act (SOIRA). This will be in effect for A.R.’s lifetime. [ 63 ] I will make a prohibition order under

section 161 of the Criminal Code . It will be made under subsections (a), (

b) and (

c) for certain. I will hear from the Crown as to (

d) and as to what conditions would be appropriate, if it is seeking such an order. I will also hear from defence as to any modifications or exceptions they might request relative to each aspect of this order. [ 64 ] This being a designated offence, DNA is ordered.

[ 65 ] Given A.R.’s circumstances and the length of the jail term imposed, any victim fine surcharge is waived. Released: April 15, 2013 ________________________ Justice Jonathon C. George