R. v. S.D.M. Date:, 2015 BCPC 112

Citation: R. v. S.D.M. Date: 20150417 2015 BCPC 0112 File No: 199148-3-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. S.D.M. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: M. Fortino Counsel for the Defendant: L. Rudovica Place of Hearing: Surrey , B.C. Dates of Hearing: May 20, 21, 22, 23, 26, June 16, October 6, 28, 29, 30, Dates of Hearing: December 17, 18, 2014; January 16, April 1, 2015

Date of Judgment: April 17, 2015 [ 1 ] THE COURT : S.D.M. (S.M.) is before the court today to be sentenced following pleas of guilty to two counts on Information 199148-3-C. He has pled guilty to Count 2, that between December 29, 2011 and March 18, 2012, at Langley, British Columbia, he possessed child pornography, contrary to s. 163.1(4) of the Criminal Code . The Crown proceeds summarily.

The minimum sentence for this offence is 14 days imprisonment and the maximum is 18 months imprisonment. [ 2 ] S.M. has pled guilty as well on Count 4 that between February 13, 2013 and March 4, 2013, at Langley, he did transmit, distribute or make available child pornography, contrary to s. 163.1(3) of the Criminal Code . On

summary proceedings, the minimum sentence on this offence is six months imprisonment and the maximum is two years less one day. [ 3 ] The Crown says appropriate sentences would be ten months on Count 2 and 15 months on Count 4 consecutive, totalling 25 months.

The Crown says that when consideration is given to the principle of totality, an appropriate global sentence is 18 months imprisonment, followed by three years’ probation. [ 4 ] The Crown seeks a number of ancillary orders which are not contested and which I will review at the end of the reasons. [ 5 ] The Crown's position emphasizes the overarching need to denounce criminal conduct which victimizes children and to make a strong statement of deterrence, both generally and specifically in relation to this offender. [ 6 ] Mr.

Fortino for the Crown acknowledges mitigating considerations are present, but he says a global 18-month sentence with the rehabilitative provisions of a probation order strike the appropriate balance. [ 7 ] Ms. Rudovica, on behalf of S.M., urges greater emphasis be placed on these rehabilitative factors, considering S.M.'s relatively young age, lack of criminal record and underlying personal circumstances.

She says a global nine-month sentence plus probation strikes the appropriate balance. [ 8 ] This matter initially came on for trial before me in the spring of 2014, the Crown at that time proceeding by indictment. Following a voir dire in which I ruled S.M.'s statement to police following his arrest in March of 2013 to be voluntary, the matter was adjourned to continue on later dates. In the meantime, the Supreme Court of Canada decision in R. v. Spencer , 2014 SCC 43 was released in which that court ruled certain investigative procedures also used in S.M.'s case violated the Charter of Rights .

The proceedings were further adjourned to allow S.M.'s counsel to consider how best to proceed. [ 9 ] After several appearances, the matter reconvened in a voir dire in December of 2014. Midway through that voir dire , S.M. changed his pleas on two counts, the two counts that I am dealing with here, to guilty, and the Crown re-elected to proceed summarily.

Although one could not say that S.M.'s pleas of guilty have come at an early stage, the fact is that about 20 days of court time scheduled through December and into the early part of 2015 have been saved as a result of those pleas. [ 10 ] Following his pleas of guilty, a Pre-Sentence Report and a psychological assessment were ordered. S.M., through his counsel, retained Dr. Patrick Bartel to provide the psychological assessment. Those reports, together with a brief supplemental report from Dr. Bartel, are Exhibits 3, 4 and 5 on this sentencing. [ 11 ] Following his initial arrest, S.M. was released on bail.

He came back into custody on or about February 18 of 2015, about one month before the sentencing submissions were heard in this case. He is in custody, based on new allegations. I have not been informed of the details of those new allegations. The effect of those new allegations, however, has been that S.M.'s bail on the offences which are before me was revoked and a detention order was imposed on February 18th of 2015.

Both counsel agree he is entitled to two months credit for pre-sentence custody on a one-to-one basis. [ 12 ] The circumstances underlying the offences before me arise from two separate investigations. Both involved the process by which child pornography is obtained and shared over the internet. Gigatribe is a peer-to-peer internet networking site regularly used to share child pornography. People who want to view and share pornography can do so with others on Gigatribe by exchanging passwords to access files containing child pornography.

Each individual participant must invite another to participate by providing a password and inviting that person into the network, at which point that person can then view the illicit material. [ 13 ] On January 30th, 2012, an FBI special agent, working in a covert capacity, went online using Gigatribe. He connected with S.M., who used the username "Lolik9kink." He downloaded 43 images of young children posing or engaging in sexual conduct with adults or other children, and 398 similar thumbnail files provided by S.M. The material met the definition of child pornography in s. 163 of the Criminal Code .

It included images of bondage involving infants and very young children. The FBI agent determined that the IP address for the computer was in Langley, British Columbia. He forwarded his findings to the British Columbia Integrated Child Exploitation Unit in Surrey. [ 14 ] On January 24 of 2012, just days earlier, a detective with the Toronto Police Force conducted a similar covert investigation using Gigatribe and also engaged with S.M., who used the same username. S.M. made three images of child pornography available to the detective, who passed his findings on to the ICE Unit in Surrey.

The ICE Unit here then obtained the service subscriber information for the IP address provided. The subscriber was the common-law partner of S.M.'s mother on [text removed for publication] in Langley. On March 21 of 2012, the ICE Unit executed a search warrant there. [ 15 ] S.M. and his then-girlfriend were living in a bedroom in the residence. They were present when the search warrant was executed. Investigators were directed to a laptop computer in that bedroom, which they seized, as well as an external hard drive and four homemade CDs or DVDs which were on a shelf in the bedroom.

S.M. had burned images from his devices to these disks. [ 16 ] On the laptop were 21 images, 13 videos and three documents meeting the definition of child pornography. The documents

were entitled "Hunters Guide to Finding Child Lovers," "A Guide to Pedophilia" and "How to Practice Child Love." The hard drive contained ten videos meeting the definition of child pornography. Two of the four disks contained six videos each meeting the definition, and the two other disks contained a further 79 videos and 450 images meeting the definition. In total, 471 images and 114 videos, as well as the three publications meeting the definition for child pornography were found in this offender's bedroom on these devices.

Included among these were the images provided to the FBI agent and the Toronto detective during their covert contacts. Eight images were shared via yahoo messenger on the laptop. [ 17 ] A desktop computer was also seized from the dining room of the residence, but nothing of interest was found and it was returned.

That desktop computer, however, becomes relevant at a later time. [ 18 ] In a statement to police, S.M.'s girlfriend said that they both viewed child pornography for sexual gratification. [ 19 ] The images and videos are contained on disks collectively filed as Exhibit 1 on the sentencing, together with brief narrative descriptions of the content.

A representative sampling of the material was played in court during the sentencing hearing. [ 20 ] Courts have recognized a five-level categorization of child pornography to assist in assessing the levels of seriousness of the violations inflicted on children in the images and video material.

Those levels are briefly described as follows: first, images which depict erotic posing with no sexual activity; second, sexual activity between children or solo masturbation by a child; three, non-penetrative sexual activity between adults and children; four, penetrative sexual activity between children and adults, and the fifth level is briefly described as sadism or bestiality. ( R. v. Oliver, [2002] EWJ No. S441) [ 21 ] The material in this investigation covers the entire range. It is highly disturbing. The children range in age from infancy to early teens.

Naked infant and prepubescent girls are depicted in a variety of positions exposing their genital areas, including circumstances in which they are being penetrated by a finger or an object or an erect male penis. They are depicted fondling and with an erect male penis at or inside the mouth. In some cases the child is made up or wearing jewellery.

Images from the laptop include a nude prepubescent female bound at the chest, waist and knees, while a dog's nose is placed between her buttocks, and in another image, the animal's penis is inserted in her mouth. [ 22 ] The four homemade disks contain highly disturbing material. In several images, the child is bound naked at the wrists and ankles and spread in such a fashion that the vaginal and anal areas are exposed. In one particular image, a naked three-to-five-year-old female child is seen standing on a bed with her wrists bound above her and her ankles bound at either side.

A leather studded gag is across her mouth. Red marks are visible on her body. A particularly vile caption appears at the bottom of that photograph. [ 23 ] S.M. was not charged in relation to the 2012 investigation. His girlfriend was charged, but those charges were subsequently stayed. [ 24 ] In February of 2013, the same Toronto detective conducted another covert investigation using Gigatribe. He encountered S.M. again, now using the name "boredguy69." S.M. provided his password to a file containing 200 images of child pornography. The investigator downloaded 17 images.

The IP address and internet service subscriber were found to be at S.M.'s mother's residence, the same address as was the site of the investigation in 2012. [ 25 ] A search warrant was obtained and executed on March 14, 2014. The same desktop computer which was seized in 2012 was seized once again. The Gigatribe program was now installed on that computer and the chat between boredguy69, being S.M., and the Toronto detective was found. In addition, a variety of other chat records involving S.M. in discussion about distribution of child pornography was located.

A sampling of those exchanges is transcribed and marked Exhibit 2 on this sentencing. Included are explicit exchanges in which S.M. expresses his particular interest and preferences in child pornography, and he seeks out and provides access to files containing child pornography over the time period covered in Count 4, which begins February 13 of 2013. [ 26 ] In the course of the exchanges, he provides the same password to others that he provided to the Toronto detective. In the chats, S.M. expresses interest in images of toddlers, babies and references rape of girls.

He exchanges communication appearing to express an interest in abusing female children. Counsel for S.M. cautions me not to read too much into these exchanges, that statements are made in these circumstances in order to gain access to the material and do not reflect S.M.'s actual orientation, which is to age-appropriate adult women. This has some relevance, because the Crown argues Dr. Bartel's conclusion that S.M. is not a pedophile should not be relied upon. [ 27 ] The images recovered from the desktop computer are similarly disturbing.

Included are images of prepubescent females aged from what would appear to be under one year of age to about 11. They include images extending from explicit posing to exposure of vaginal and anal areas, to holding and sucking the male penis, to penetration with the penis and other objects. In a number of images, ejaculation appears to have occurred over the children. Images of the erect penis of a dog in the child's mouth is present. Images of naked children bound at the wrists and ankles are present. [ 28 ] S.M. was arrested.

In a statement which I found to be admissible at trial, he admitted that he was the person associated to the usernames referred to and that he had used the desktop computer to access child pornography, and that he provided the images to the Ontario investigator. He said that he had erased some images because of concern following the discovery of the disks during or following or as part of the first investigation. [ 29 ] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions addressing specific objectives.

The Criminal Code provides that where the offences involve the abuse of young children, as these offences do, the sentences I impose must give primary consideration to the objectives of denunciation and deterrence. I must be concerned for both specific deterrence of S.M. and general deterrence. [ 30 ] In the present case, because S.M. has no prior criminal record and is relatively young, rehabilitation as an objective must weigh in the balance. The mandatory minimum sentences ensure that S.M. will serve a sentence of imprisonment.

I must bear in mind those rehabilitative concerns and in separating S.M., ensure that any consecutive sentences, when combined, are not unduly long or harsh, and

that the period of imprisonment imposed is no longer than is necessary to accomplish the relevant objectives which I referred to a moment ago. [ 31 ] The sentences I impose must account for aggravating and mitigating circumstances. They must account for the fact that young children were abused in the process of making this material, and that abuse continues each time that material is shared or viewed. The sentences I impose should be similar to sentences imposed on similar offenders in similar circumstances.

Ultimately, the sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of this offender. The culpability or moral blameworthiness of S.M. is therefore an important consideration. [ 32 ] The principles of proportionality and restraint play a role in the outcome to ensure, in their totality, these sentences which I will impose are appropriate to address the seriousness of these offences. Thus the imposition of sentences in a serious case such as this is not resolved through the application of a simple formula.

It is a considered assessment of many factors, based on the particular circumstances of this offence and this offender. S.M.'s personal circumstances are relevant to that consideration. [ 33 ] S.M. is 27 years of age. He turned 23 during the period covered by Count 2 and he was 24 during the entire period covered by Count 4. He has no prior record. His parents separated when he was about age ten.

That event appears to have contributed to unsettled teenage years and there are suggestions in the reports that S.M.'s relationship with his parents, but most importantly with his mother, have been troubled over the years. Notwithstanding that, he is closest with his mother, who continues to support him through these proceedings. [ 34 ] S.M. was sexually abused between the ages of five and eight by two boys, slightly older, who lived in his neighbourhood. He was shunned by peers, and during his teenage years, he developed an interest in subcultures. His schooling suffered. He completed Grade 11, but left school.

He began drinking and using drugs. He has since completed his Grade 12 equivalency, but since leaving school, his employment history has been sporadic. [ 35 ] At 19, he was diagnosed with depression. At 21, he was diagnosed with adjustment disorder with mood and anxiety symptoms. He has not routinely taken medication when prescribed. He was again diagnosed with a major depression with anxiety and paranoid ideation. He did not follow through with group therapy. He has attempted suicide three times, I believe, in the past.

He has attended hospital emergency rooms for mental health reasons on several occasions. [ 36 ] S.M. reports that he began using alcohol at age 14 and has used marihuana and cocaine. He has indulged in binge drinking. He says that he was using alcohol and MDMA to excess at the time of these offences. He has not taken any form of counselling for substance abuse. He told Dr. Bartel that he lived an unstructured party lifestyle during some of these years. His relationships and his housing have been unstable. [ 37 ] S.M. says that he began viewing adult pornography around the ages of ten or 11.

As a teenager, he developed an interest in sexual fetish material, including bondage. He was introduced to child pornography through a contact in an internet chat room. He states that his intimate relationships are with adult women and that he has no interest in sexual encounters with children. However, he said to Dr. Bartel that he "found sexual gratification from child pornography images and video." (Bartel report pg. 2) [ 38 ] At the time of the first offence, S.M. was in a relationship. He was living at the home of his mother and her partner.

He and his girlfriend at the time spent time doing drugs and watching pornography, including child pornography. He says the use of child pornography occurred "in the context of a larger fascination with fetishistic sex, mostly bondage, dominance, sadism and masochism." (Bartel report pg. 2) He told Dr. Bartel that he and his girlfriend "gradually became bored with the pornography content they were accessing and began downloading large files that contained multiple videos, many of which they knew contained child pornography." (Bartel report pg. 2). They did so for sexual arousal purposes.

He says this began about a month before their first police contact. [ 39 ] In respect of the offence of making child pornography available in 2013, S.M. told Dr. Bartel "that after the first offence, his girlfriend was criminally charged, but that he was not.

He states that she was distressed and going through hell because of this, and that he decided to purposely download and share child pornographic content, knowing that he'd likely get caught and charged, in order that "we" (referring to he and his girlfriend) "could go through this" (referring to the stress of criminal charges) "together." (Bartel report pg. 13).

He states that he went back to using the same peer-to-peer downloading program and downloaded and shared child pornography files and then immediately deleted them, without using them for sexual purposes. [ 40 ] This explanation for the 2013 offence was not provided to police when S.M. was interviewed following his arrest, nor was it so much as hinted at, and I have reviewed his statement once again in preparation for today's sentencing. As an explanation for that conduct, it is untested. On its face, it is inconsistent with the explicit nature of the exchanges with others set out in Exhibit 7.

It seems inconsistent with S.M.'s assertion that he is aroused by a variety of sexual content and that he views himself as a sex addict and, as he stated to Dr. Bartel, that he "experienced difficulties abstaining from downloading and using inappropriate and illegal pornography at times," particularly when feeling depressed and using substances, which he was doing until his recent arrest. [ 41 ] Dr. Bartel concludes that S.M. suffers from a chronic persistent depressive disorder. He is prone to suffer major depressive episodes affecting sleep, mood, appetite and energy level, and may include suicidal ideation.

He suffers a low level of self-worth and resilience in coping with stress. At page 9 of his report, Dr. Bartel stated the following: With regard to sexuality, evidence suggests the presence of fetishistic disorders, including sadomasochism and urophilia. S.M. also endorses sexual arousal to extreme and taboo sexual themes that include child pornography, bestiality and gore. Based on his self-report, his interest in child pornography is sexually based in that he does experience some degree of sexual arousal upon viewing child pornographic content and will use this to masturbate or stimulate himself.

Conversely, he denies experiencing any sexual fantasies, masturbation or arousal to children outside pornography; i.e., children he sees and comes into direct or indirect contact with in the community. For this reason, it is difficult to definitively diagnose S.M. with pedophilia. His sexual disorder appears to be more related to being attracted to taboo, shocking or socially-reviled themes and content.

[ 42 ] Crown counsel says, contrary to the tentative conclusion Dr. Bartel reaches, the evidence supports a much stronger conclusion tending to the presence of pedophilia. Mr. Fortino says S.M. minimizes his interest in child pornography, confining it in a way which is inconsistent with the chat record and other evidence, and further, the conclusion is weakened by virtue of being on a self-report basis. [ 43 ] Dr. Bartel went on to assess S.M.'s risk to reoffend, utilizing the Risk for Sexual Violence protocol.

He considered the information respecting S.M. to determine whether 22 risk factors are present or absent. He concluded as follows at page 13 of his report: In taking all risk factors into consideration, my opinion is that S.M. is at moderate risk to sexually offend in the future. His risk is primarily indicated by the presence of multiple incidents of child pornography use. The other critical risk concerns are presence of substance abuse problems, depression and poor coping ability. I should also stress that by far the most likely scenario for sexual reoffending will be future child pornography use.

He is at low risk at this time for direct sexual offending against children. I am concerned, however, that if S.M. would continue to access and use child pornography, his risk of offending directly against others would increase over the long term. [ 44 ] Crown counsel argues that S.M. is a greater risk to reoffend and that certain of the factors, as characterized by Dr. Bartel, are inconsistent with S.M.'s self-report and the investigative facts. For example, with respect to sexual deviance, Mr.

Fortino says the opinion that S.M. is not fully pedophilic because "he likely does not experience sexual arousal thoughts regarding children in the community," relying as it does on S.M.'s self-report, is based on too weak a foundation. [ 45 ] I will note here that there are other risk factors enumerated where one could take issue with the wording used by Dr. Bartel or the tenor of his statements; however, this is the professional opinion of an experienced psychologist using the information he had available to him. It is not an exact science.

I am not in a position to say whether were a particular factor weighted differently, I could conclude S.M. to be pedophilic. As I have noted, when assessing Dr. Bartel's report, I take account of the fact that he did not review the images, videos or chats, as the court has done, that the report relies substantially on self-reporting from S.M., that I have little confidence in S.M.'s explanation for why it is he shared child pornography in 2013, and that the risk factors leading to Dr.

Bartel's conclusion have not been addressed, except to the very limited extent provided in the structured setting of the remand centre. [ 46 ] S.M., in the unstructured circumstances of the community, is at least a moderate risk to re-offend in respect of child pornography. He has not followed through with a commitment to counselling or therapy in a concerted way in the past. Dr.

Bartel expresses the real concern that, in the absence of attention to the factors underlying his resort to child pornography over time, S.M. becomes a greater risk to offend against others, and I would conclude that must include or encompass children. [ 47 ] In this regard, I note Dr. Bartel states that S.M. accepts responsibility for his actions and experiences significant shame and guilt. Beyond his plea of guilty, however, he has not expressly stated that he is remorseful for his actions and that he understands why this crime is treated so seriously.

My impression is that gathering insight into his offending and its impact remains a significant step to be taken which, if gains are made, may ultimately work to reduce other risk factors currently in play. [ 48 ] Sentencing in cases involving child pornography was given context by the Supreme Court of Canada in a decision which is well known called R. v. Sharpe , 2001 SCC 2 . In that case, the Chief Justice of Canada stated the following: The very existence of child pornography as it is defined by s. 163.1(

I) of the Criminal Code is inherently harmful to children and to society. This harm exists independently of any dissemination or any risk of dissemination and flows directly from the existence of the pornographic representations which, on their own, violate the dignity and equality rights of all children. The harm of child pornography is inherent 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 eroticizes the inferior, social, economic and sexual status of children.

It preys on pre-existing inequalities. And she continued: Banalizing the awful and numbing conscience, exposure to child pornography may make the abnormal seem normal and the immoral seem acceptable.

At paragraph 91 of that decision, the Chief Justice stated: Sexually explicit pornography involving children poses a danger to children because of its use by pedophiles in the seduction process. [ 49 ] Children are victimized in the most brutal and intrusive way at every stage of the child pornography continuum; from the grooming to the undressing, to the posturing, to the exposure, to the forceful intrusion into their most private places, to the physical force and restraint of the child, to threats and physical violence, and to the emotional struggle many of these children will endure over a lifetime.

There is a concern that this offending against children is increasing and that the easy ability to circulate this material over the internet is encouraging that growth. Once these images are introduced to the internet, there is no ability to control where they appear, what use is made of them, how often they are re-sent and viewed. Those who possess, view, chat about and exchange child pornography provide the encouragement and the audience for those who would abuse children in order to produce that content.

Thus the emphasis on deterrence and denunciation as the primary sentencing objectives in cases involving those who possess and circulate this material.

[50] Parliament has determined that these cases are so serious because of the risk they create for children, usually in circumstances inwhich the abuse is hidden away and the victims are silent, that a jail sentence must be imposed to deliver that strong message. Sentencing in cases of this kind provide an opportunity for courts to act as best they can to protect children vulnerable to this exploitiveand abusive conduct by imposing deterrent sentences. [51] In R. v.

R.L.W., 2013 BCCA 50, a decision of the Court of Appeal in this province, an 18-month sentence was imposed forpossession of child pornography consecutive to a five-year sentence for sexual assault. That was upheld by the Court of Appeal. Thesexual assault was unrelated to the child pornography that that offender had in his computer. That First Nations offender had imagestoward the extreme end of the range. The court noted that sentencing tends to cover a broad range, but have tended to increase with agreater appreciation for the importance of deterrence and denunciation.

In that case, the nature and quantity of the images, the manner inwhich the material was used, the presence of violence or sexual offences committed on the children, were all relevant. [52] R. v. Kwok, (ON SC), [2007] OJ 457 (Ont. SCJ) is a decision in 2007 of the Ontario Superior Court ofJustice. It involved a first offender who had 2,000 still images and 60 videos of child pornography. The court imposed a one-year jailsentence and three years of probation at a time when a conditional sentence order was still available.

In that case, the court identified anumber of aggravating and mitigating factors to be considered in cases of this kind. That list has been referred to in other cases since.

Itincludes the presence of a criminal record, whether production was involved, the size of the collection, the nature of the collection,including the age of the children, relative depravity and violence of the material, the extent to which the offender is a danger to children,whether the material was purchased or merely collected. [53] Mitigating considerations listed included the youthful age of the offender, the extent to which he shows insight, expressions ofgenuine remorse, willingness to submit to treatment, pleas of guilty, the extent to which the offender has suffered for the crime in thecommunity, and I will add to that list for consideration the presence of a mental illness or disorder. [54] I have reviewed all of the cases provided by counsel.

The sentences imposed demonstrate the importance of the particularcircumstances of each case. I note cases provided by the defence range from 45 days imposed in R. v. Lamb, 2011 BCSC 349, in theBritish Columbia Supreme Court involving a small collection, which did not include bondage, and a young first offender; 12 monthsimposed in the case of a significant collection involving a young first offender in R. v. Wright, 2012 ONCJ 698; and three monthsimposed in R. v.

Ingvaldson, 2012 BCPC 437 in the Provincial Court in this province, involving a school teacher who was particularlyremorseful and insightful, and who had suffered a considerable impact in the community. Specific deterrence was not a concern in thatcase. R. v. Hughes is another case in which a 12-month global sentence was imposed for possession and making available childpornography following guilty pleas and on

summary proceedings. [55] I note here that these are all cases involving a single investigation. They do not reflect the complexity of S.M.'s decision to re-engage with child pornography following the first investigation. They do assist in putting his actions in context and in assessing theweight to be given aggravating and mitigating features. [56] Here, I take account of S.M.'s young age and that he has no prior criminal record. I note the challenges of his upbringing andthe effect that has had on his mental health issues, which continue to affect him.

I note that he does express a desire to access appropriatetreatment and counselling. I note these charges have resulted in media attention, at least since his recent arrest. Although I appreciatethere are challenges to be addressed in his relationship with his family, particularly with his mother, her support, once he is released intothe community, will be very important in encouraging his rehabilitation and ultimately in his successful reintegration. [57] But these are serious and significant criminal offences. S.M. carries a high degree of moral culpability.

The collection ofmaterial is not, in size, at the high end, but neither is it at the low end. S.M. was not deterred or dissuaded by the investigation in 2012. He did not take that as a spur to seek out the help that he needed to address the issues underlying his lifestyle and other factors that ledhim to the child pornography initially. Instead, at some point he reconnected with that world and began, it appears, to rebuild hiscollection and to engage with others to share this material. The images cover the full range of exploitive material.

It is a graphic andperverse collection, demonstrating a broad range of violence and exploitive conduct directed towards children. The children are veryyoung. [58] I conclude that although S.M. has pled guilty, he will continue to be at risk to re-offend until he undertakes, in a committed way,the type of counselling and treatment Dr. Bartel recommends. He has not made that commitment in the past. He says he is prepared todo it now.

Until that process is engaged, his specific deterrence remains a concern. [59] A strong statement for deterrence and denunciation, when balanced against the mitigating factors present here, require a globalsentence, in my view, in the range proposed by Crown counsel. [60] S.M., if you could stand now, please. [61] After considering the issues of totality and proportionality and all the circumstances in this case, on Count 2, which relates topossession of child pornography during 2011 into 2012, a fit sentence would be eight months of incarceration. I will give you credit fortwo months of pre-sentence custody.

I impose six months of additional custodial time in respect to that count. [62] On Count 4, which is making available child pornography in 2013, an appropriate sentence which I now impose is ten monthsconsecutive. There will therefore be a sentence of an additional custodial period of 16 months. [63] That will be followed by a three-year probation order. Momentarily I am going to discuss with counsel what the conditions ofthat probation ultimately should be. [64] I am going to make the DNA databank order which the Crown seeks.

These are primary designated offences, and that samplingfor the national databank will be taken during the course of your custodial period. [65] The order under the Sexual Offender Information Registry legislation for a period of ten years is made.

[ 66 ] The forfeiture orders sought by the Crown will be made, unless there are issues between counsel which you are welcome to bring back before me or another judge of this court, but subject to any discussion, I am prepared to make the forfeiture order. [ 67 ] I will order, as Crown counsel has sought, that the exhibits on this sentencing be sealed and not unsealed except pursuant to court order. [ 68 ] The victim fine surcharges are payable forthwith, in default, one day on each, concurrent with the sentence being served. [ 69 ] I also want to discuss with counsel the orders which should be made under s. 161 of the Criminal Code and how they should be coordinated with whatever the appropriate terms on a probation order will be, so I am going to now raise those issues with counsel.

You can have a seat, S.M. [PROCEEDINGS] [ 70 ] THE COURT: There are really two issues that remain for me to resolve, S.M., in terms of sentencing. One of those issues is the terms that would apply on a probation order, and the second is whether or not the court should impose orders under s. 161 of the Criminal Code which the Crown seeks and which Ms. Rudovica, on your behalf, has opposed. [ 71 ] In respect of the orders under s. 161 , the concerns here arise to some extent out of the circumstances of these investigations.

We are not talking about a single issue or incident or investigation, but rather circumstances in which, having been the subject of an investigation in 2012, you, although not charged, re-engaged with this illicit material through the internet within a matter of months after the conclusion of that investigation, certainly within a period of roughly 10 or 11 months. [ 72 ] The chat material that was before the court during the sentencing and I referred to in my reasons is concerning. I appreciate the point that Ms. Rudovica has made in argument.

It is a point which you made during the statement that you gave to the police that I ruled as admissible, and that is that people in these chat circumstances will often say things for the purpose of accessing the material for whatever purpose it is that they seek it. However, I am concerned enough by those statements, even taking account of the possibility that those statements may have simply been made to engage in the exchange process, that in my view, at least at this time and until there is further information available and further counselling and progress towards addressing issues that are underlined by Dr.

Bartel, I have concluded that there is a basis to make the orders, modified somewhat, under s. 161 . I quoted from Dr.

Bartel's report this morning from page 13 of his report, and I am not going to read it again now, but it is really the paragraph in which he summarizes the risk assessment, and I concluded at that point that until there is a committed engagement with the rehabilitative process, there at least remains some degree of risk that if these issues are not adequately addressed, problems could arise and risks could rise, and that could include risks to children. [ 73 ] So with all of that in mind, and having reviewed the decisions that Ms.

Rudovica has provided, I have concluded that this situation is distinguished somewhat from those to the point where it is appropriate that the orders be made under s. 161 . As Mr. Fortino has pointed out, although this is not a reason to simply go ahead and make the orders, the fact is that they can be ameliorated at a later date if a court concludes that it is appropriate to do that, bearing in mind the circumstances that may exist at that time. [ 74 ] So in respect of the Crown's application for orders under s. 161 for a period of ten years, that order will be made.

I am going to state the order now. [ 75 ] There will be an order for a period of ten years under s. 161(1)(

a) that you not attend any park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre, unless in the presence of a person approved in advance by your probation officer, or following the conclusion of any probation period, approved of by the court. [ 76 ] Under s. 161(1)(b), that you must not seek, obtain or continue any employment, whether or not that employment is remunerated, or become or be a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years. [ 77 ] Section 161(1)(c), that you must not have any contact, including communication by any means, with a person who is under the age of 16 years, unless you do so under the supervision of a person whom the court considers appropriate, or in circumstances of lawful employment, those circumstances of employment having been approved in advance by a probation officer or the court. [ 78 ] Section 161(1)(d), you must not use the internet or other digital network except for purposes of lawful employment or for purposes of education, having informed your probation officer or the court in advance of the circumstances of employment and education, or in other circumstances approved in advance by the court.

That covers the s. 161 orders. [ 79 ] In terms of the probation order, which will be for three years, the conditions will be, S.M., that you report before four o'clock in the afternoon on the first business day following your release to a probation officer, and thereafter as and when and in the manner directed by the probation officer. [ 80 ] On your initial report to the probation officer, you will advise the probation officer of your residential address and any contact telephone number for you.

You will thereafter not change either your residential address or your telephone contact number without the prior written approval of the probation officer. [ 81 ] You will attend, participate in and complete to the satisfaction of your probation officer any assessment, treatment or counselling that may be directed by the probation officer. [ 82 ] You will not maintain or possess any account with an internet service provider or any account with a wireless communication carrier that includes internet access. [ 83 ] You will not access the internet by any means, including wireless handheld devices such as BlackBerrys, iPods, iPhones,

Android phones or any web-enabled cellular phones, unless in a manner approved in advance in writing by the probation officer. [ 84 ] You will seek and maintain employment and/or attend an educational or vocational program as directed by the probation officer. [ 85 ] You will not own, possess or use a computer except for the purposes of legitimate employment and while at your place of employment, or where you have the prior written approval of the probation officer. [ 86 ] The final condition is that you will not engage in an intimate relationship with any person who has children under the age of 18, unless that person has been advised of the circumstances of this conviction in the presence of your probation officer. [ 87 ] MR.

FORTINO: And the Crown directs a stay of proceedings on the outstanding counts on Information 199148-3-C. That concludes this matter. [ 88 ] THE COURT: Thank you. (REASONS FOR SENTENCE CONCLUDED)