R. v. B.J.G., 2022 NLSC 78

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. B.J.G. , 2022 NLSC 78 Date : April 28, 2022 Docket : 201806G0068 Her Majesty The Queen v. B.J.G. Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way. Before: Justice Garrett A. Handrigan Place of Hearing: Grand Bank, Newfoundland and Labrador Dates of Hearing: November 8th, 2021 and April 8th, 2022

Summary: B.J.G. pleaded guilty to possessing child pornography contrary to

section 163.1 (4) of the Criminal Code ; and appeared before Court on April 8, 2022 for sentencing. The Court remanded Mr. G. in custody, pending sentence. On April 28, 2022, the Court sentenced Mr. G. to 18 months’ imprisonment, less 30 days credit for time served and ordered him to comply with the conditions of a probation order for 3 years from the date of his release. It also made ancillary orders for prohibition, forfeiture, DNA and sex offender registration. Appearances:

Alison J. Manning Appearing on behalf of the Crown Tony E. St. George Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Friesen , 2020 SCC 9 ; R. v. I.P. , 2020 NLSC 2 STATUTES CONSIDERED: Criminal Code , R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Handrigan, J. : INTRODUCTION [ 1 ] B.J.G. pleaded guilty to possessing child pornography contrary to

section 163.1 (4) of the Criminal Code , R.S.C. 1985, c. C- 46 , on November 8, 2021. I held a sentencing hearing on April 8, 2022 and remanded Mr. G. in custody pending sentence and reserved my judgment on sentence until this date. The Issue [ 2 ] What is a fit and proper sentence for Mr. G. for this offence? The Law Statute [ 3 ]

Section 163.1 (4) of the Criminal Code reads: 163.1

(4) Every person who possesses any child pornography is guilty on an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year… [ 4 ] Any discussion of sentences for criminal offences must start with the statement of principles that appears in

section 718 and following sections of the Criminal Code . Those principles encompass broad considerations from denunciation, through deterrence, reparation, rehabilitation and the general promotion of a sense of responsibility in offenders for the losses they cause their victims. [ 5 ] Also, of concern are proportionality, the alternatives to incarceration where they are both available and appropriate, and the factors that mitigate or aggravate the offence.

The overriding consideration throughout these sections is protecting the public and the challenge is to achieve it, in the legislative context and the circumstances of the offence. Ultimately, the sentence must fit the offence and the offender. [ 6 ] Communicating to accused persons and others of like mind that they must refrain from criminal activity is one of the primary goals of sentencing. Denunciation is also important. Overall, deterrence, and especially general deterrence, and denunciation must be stressed when sentencing offenders who possess child pornography. Case Law [ 7 ] In R. v.

Friesen , 2020 SCC 9 , the Supreme Court of Canada discussed both sentencing ranges and starting points for sentences for sexual offences committed against children. Wagner, C. J. and Rowe, J. delivered joint reasons for the Court. They began by setting out three objectives for their judgment, the third being especially relevant here: Third, we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase.

Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large. (Paragraph 5)

[ 8 ] In paragraph 47, the learned justices comment on how the proliferation and use of “[n]ew technologies have enabled new forms of sexual violence against children and provided sexual offenders with new ways to access children”: Social media provides sexual offenders “unprecedented access” to potential child victims… The Internet both directly connects sexual offenders with child victims and allows for indirect connections through the child’s caregiver.

Online child luring can be both a prelude to sexual assault and a way to induce or threaten children to perform sexual acts on camera… The Internet has also “accelerated the proliferation of child pornography” … [ 9 ] They noted that “[g]iven the facts of this case, the guidance we provide is focused on sentencing principles for the offence of sexual interference and closely related offences such as invitation to sexual touching…However, the principles that we outline also have relevance to sentencing for other sexual offences against children… [including accessing child pornography contrary to

section 163.1 (4) of the Criminal Code ]”. (paragraph 44) [ 10 ] Finally, the learned justices noted they were, …determined to ensure that sentences for sexual offences against children correspond to Parliament’s legislative initiatives and the contemporary understanding of the profound harm that sexual violence against children causes. To do so, we wish to provide guidance to courts on three specific points: 1. Upward departure from prior precedents and sentencing ranges may well be required to impose a proportionate sentence; 2.

Sexual offences against children should generally be punished more severely than sexual offences against adults; and 3. Sexual interference with a child should not be treated as less serious than sexual assault of a child. (Paragraph 107) [ 11 ] O’Brien, J.’s sentencing decision in R. v. I.P. [1] , 2020 NLSC 2 , is especially relevant to this case because I.P. was in a boyfriend-girlfriend relationship with Mr. G. and became his co-accused. I.P. took the pornographic pictures of her 6-year-old son that Mr. G. had in his possession and for which he was charged with this offence. I.P. sent the pictures to Mr.

G., who used them for his sexual stimulation. [ 12 ] The police charged I.P. with two offences, making child pornography contrary to

section 163.1 (2) of the Criminal Code and transmitting child pornography contrary to

section 163.1 (3) of the Criminal Code . She pleaded not guilty to both charges but a jury convicted her at trial. [ 13 ] O’Brien, J. sentenced I.P. to 14 months’ jail for each offence, to be served concurrently and gave her credit for the time she spent on remand between her conviction and sentencing. She also made ancillary orders for probation, forfeiture, DNA and Sexual Offender Registration. O’Brien declined to make it a condition of her probation that I.P. not have to contact with her son or to restrict her access to the Internet. She also declined to make a prohibition order under

section 161 of the Criminal Code . [ 14 ] In her sentencing decision, O’Brien, J. considered these as aggravating factors: • “[A]s the mother of Child, she has betrayed a significant position of trust”. (Paragraph 52) • “I also consider as an aggravating factor that Child is recognizable in most of the photographs”. (Paragraph 53) • “I agree...that to impose mandatory minimum sentence [of one year] for each offence in this case would be to ignore the aggravating factors”. (Paragraph 54) [ 15 ] As for mitigating factors, she considered: • “…[S]he has no prior criminal record…” (Paragraph 49) • “…[T]hese events have had serious consequences for I.P. already.

I.P. has not had an easy life. While this does not excuse her actions, I note that she lost her father when she was young, she suffers from mental illness and she endured and then left an abusive relationship. Since giving birth, her relationship with Child was the most significant and stable relationship in I.P.’s life. I believe that I.P. loves Child very much and that the two of them were very close.

As a result of her actions, I.P has lost custody of Child and their relationship will never be the same again”. (Paragraph 49) • “…I.P. is remorseful for what has happened”. (Paragraph 49) • “…I.P. is at a low risk for committing any similar offence in the future”. (Paragraph 49) • “…[T]he number of images was low relative to other cases…” (Paragraph 50) • “…[Tt]he period of time in which I.P. engaged in this activity was relatively brief”. (Paragraph 50) [ 16 ] O’Brien, J. also noted that “[the minimum] sentence of one year of imprisonment is…appropriate for the so-called ‘best’ offender whose conduct is caught by the child pornography provisions.

Yet I.P. is not that offender because, as the mother of Child, she has betrayed a significant position of trust”. (Paragraph 52) [ 17 ] This is the law I will apply to the issue I stated above. I turn now to analyze that issue, starting with background to it. Analysis

Background [ 18 ] The Crown and Mr. G. submitted an Agreed Statement of Facts to support the charge against Mr. G.. It reads: June 6, 2017 S. W. called the Marystown RCMP to advise that her sister I. P. had sent pictures of her young son with no clothes on to her boyfriend B.J.G., also known as B. J. C.. S. W.’s daughter, S.-L. P. had discovered the photos and messages between B.J.G. and I. P. when I. P. had left her Facebook Messenger signed in on S.-L. P.’s cell phone. In the message B.J.G. was asking for naked pictures of I. P.’s son. S.-L.

P. took screen shots of the conversation in December 2016 but did not tell her family about them until June 2017. The photos received by police had been edited by S.-L. P. to black out the child’s genital and anal areas. Copies of the screenshots are attached as Appendix “A” [to the Agreed Statement of Facts]. On June 7, 2017 search warrants were granted for the residences of the Accused and I. P. During the execution of the warrants a number of electronic devices were seized from each residence. Cst. Stewart obtained an in-custody audio video Caution Statement from B.J.G. on June 8, 2017.

In the statement the Accused confirmed that I. P. had sent him naked photos of her then six-year-old son and that he was in possession of child pornography. Investigation revealed that I. P. met B.J.G. on the online dating site Plenty of Fish and began a romantic relationship with him in August of 2016. In December 2016 they broke up after less than four months together. The technological crime analysis found texts detailing their breakup on I. P.’s LG Smartphone, PE9. We know from her texts that I. P. then launched a campaign to rekindle her relationship with the Accused.

The devices seized on June 7, 2017 were analyzed by the RCMP’s technological crime unit. The flip phone belonging to I. P., PE12, produced 433 texts between her and B.J.G.. The conversation contained additional naked photos of her six-year-old son as items 82, 84, 86, 90, 92, 94, 203, 205, 209, 211, 214, 216, 279 and 280. The naked photos of the boy were sent in response to texts from the Accused which are set out below.

Number 67: “Do I wait till after you get pics to call or can you still taken them while on the phone” Number 69: “Get him in the tub pls i want to call or I spoz I can tell you ready to get him in hang up for a bit and then get some” Number 193: “send me pics again tonight please” Number 206: (From I.P. to B.J.G.) “It seems you want pics of him more than me” Number 207: (From I.P. to B.J.G.) “Just seems like you want him and not me” Number 218: “Nice some if mr. monkey would be awesome” (in the texts I. P.’s son is often referred to as Monkey of Mr.

Monkey) The Facebook Messenger messages that had been captured by S.-L. P. were found on PE9, I. P.’s smart phone. It was confirmed these messages and photos were exchanged by I. P. and the Accused in December 2016. Between December of 2016 and January of 2017 I. P. sent the Accused naked photos of her then six-year-old son. I. P. told Cst. Strickland in her Caution Statement that she and the Accused joked that if anyone saw it they would call it child pornography.

At page 14 of her statement I.P. says, “Ah I mean there were times it was brought up and I knew it wasn’t appropriate and I like said well if someone finds out well I’m gonna get accused of getting child porn…Lol kinda thing but it was never, looked at that way so I mean it’s not like I did not think it”. Sgt. Lisa Harris categorized all the images and videos recovered from the electronic devices seized to determine if they met the legal definition of child pornography.

The Facebook messages were written material and images sent to the accused of the son were images that constitute child pornography as defined in the Criminal Code . The images of the child in the screen shots captured by S.-L. P. she categorized on their own as category one images, images that meet the legal definition of child pornography. Sgt. Harris found that the child was being exploited within his home and he was being coached to touch his own body to create these photos for the Accused.

In one text exchange I.P. was instructed by the Accused to ask her son to move back, as the first photo did not capture the child’s genitals and the next photo is of the child displaying his genitals with the text from I.P. “he is showing you his clean bird”. She was of the opinion that B.J.G. had a sexual purpose for wanting these photos and I. P. was attempting to fulfill that purpose by

sending the photos of her son. Sgt. Harris also reviewed the material that was found on I. P.’s flip phone, PE12. Again, she found the photos and the texts met the definition of child pornography. All the nude of the six-year-old child were categorized as child pornography. Sgt. Lisa Harris was of the opinion that the photos I. P. had taken and sent to the Accused were child pornography. In one of the texts captured on PE12 the Accused asked I. P. to have her son stand up and pose, this (sic) directing the person with the child taking the photos how to take the photos which is common in child pornography.

PE1 the Samsung Galaxy Grand Prime phone seized from the Accused on June 7, 2017 contained 15 images that met the legal definition of child pornography, 5 additional images were found on the micro-SD card in the phone. This phone was determined to have bene (sic) in contact with PE9 the LG cell phone seized from I. P. and PE12 the LG flip phone seized from I.P. Searches and web history on the phone (PE1) included “Forced Nudity Story Archive”, www.nifty.org/nifty/gay/incest/the-hunting-season , Nude Boys, Sweet Boys of Asia, Getting Boys naked, nudie juvie, nudist pee.

PE2 the HP Pavillion laptop seized from the Accused on June 7, 2017 was found to have 76 images and 14 videos that were categorized as child pornography. The computer also contained terms in the search history that indicated it had been used to search for child pornography. These terms included: “boy naked”, “child penis worship”, “children bathing”, “forced to hold pee as punishment”. Websites that had been accessed by the laptop included: “forced nudity-Lierotica.com”, “Forced nudity Story Archive: Nudie Juvie Stories” and “Nifty Archive: dads-n-lads”.

These terms were consistent with someone searching for child pornography materials. On the _ day of March, 2022, I B.J.G., acknowledge having reviewed in full the above Agreed Statement of Facts with my counsel, Tony St. George, and I voluntarily admit all the facts set out in it, having also been advised by my counsel of the requirements of a guilty plea pursuant to section 606 (1.1) of the Criminal Code . [ Emphasis Added ] [ 19 ] There are 19 pages attached to the Agreed Statement of Facts. They contain text messages that I. P. and the Accused exchanged as well as some of the pictures that I.

P. provided for the Accused. [ 20 ] This is a sampling of the comments in the text messages that passed between I. P. and Mr. G.: • I.P. to Mr. G.: “you are a great step father to A.P. and thats how he looks at u ” • Mr. G. to I.P.: “And i look at him as a step son ” • I. P. to Mr. G.: “I know you do he is very lucky to have u in his life” • …. • I. P. to Mr. G.: “I will work on it. tomorrow night ill try and get u one when he gets out of the tub”. • Mr. G. to I. P.: “Kk I would just sleep so better knowing we are in the right path i want to see you guys every night im not with you” • I. P. to Mr.

G.: “i hope it made you feel better about things” • Mr. G. to I. P.: “Will i no you and him still trust me you can send me millions of photos and ill love everyone of them just as much as ill love you too” • I. P. to Mr. G.: “of course i trust u baby. and so does he. he wanted me to tell you that he loves you and he cant wait for you to come back over that he misses u” • … • I. P. to Mr. G.: “i dont know about me being a cutie. but A.P. sure is” • Mr. G. to I.

P.: “Im sure you both are A.P is cute with cloths and perfect with no cloths i hate seeing him cover up id love the idea if he never did at home at all hes so perfect that way. And your perfect how ever you are” • I. P. to Mr. G.: “i know he is wearing a shirt now cos he was cold” • Mr. G. to I. P.: “Thats ok like i said if he feels like getting dressed that’s fine just wants to be good with not and that will take time too” • I. P. to Mr. G.: “I just want u to know that I am serious about making our relationship work. I would do anything for u . Good night baby I love you”

• Mr. G. to I. P.: “Night night loves ya” • … • Mr. G. to I. P.: “Just got somethings to take care of thats all” • I. P. to Mr. G.: “I know and once they are taken care of u will be here” • Mr. G. to I. P.: “Tell him the mre photos he dose for me the faster im going to want u to get there”. • I. P. to Mr. G.: “yea cos u miss him” • Mr. G. to I. P.: “Yep and i love seeing him and i love seeing you” • I. P. to Mr. G.: “he is in the tub now so i should be able to get u a pic when he gets out” • Mr. G. to I. P.: “Or 100 lol”. • I. P. to Mr.

G.: “yea lol”. [ Emphasis Added ] [ 21 ] These comments highlight: • The closeness of the relationship (note its “familial” overtones) that developed between Mr. G., I. P. and her son, even though Mr. G. and I. P. were together for fewer than 6 months. • The trust that Mr. G. fostered with I. P. and her son. • Mr. G.’s preoccupation with I. P.’s son, even to excluding her. • How Mr. G. beseeched and enticed I. P. to provide a continuing supply of pictures to him, and his resourcefulness at inventing new approaches to the ask. • How Mr. G. choreographed the picture-taking, to whether I.

P.’s son was in the bath, or as he exited it, whether he was clothed or naked (preferably the latter) and whether he was acting playfully or naughtily. • How Mr. G. directed and refined the picture-taking to his preferences. • I. P.’s disturbing eagerness to exploit her son’s innocence to please Mr. G.. • Mr. G.’s insatiable craving for more pictures. [ 22 ] This is the background against which I will discuss what is an appropriate sentence for Mr. G.. To which I turn now. Discussion [ 23 ] I ordered a pre-sentence report for Mr. G. when I accepted his guilty plea to the offence.

The report, authored by Heather Roach, an Adult Probation Officer, is brief, but offers some background about Mr. G.. The Crown took issue with parts of the report, and I will address the Crown’s concerns below. [ 24 ] Mr. G. was born February 14, 1986 and is 36 years old. He lives in Corner Brook, NL with his mother and stepfather. He has some limited contact with his biological father. Mr. G. reported to Ms. Roach that he dropped out of high school to work fulltime but returned to school when he was 29 years old and obtained his GED. He says he worked briefly at a fast-food chain but injured himself at work.

While he received Worker’s Compensation benefits from that injury the benefits have ceased. Mr. G. receives social assistance at this time, as his only income. He has no criminal record. [ 25 ] Mr. G. acknowledges that he is morbidly obese and notes that he uses a walker and a wheelchair to assist his mobility. He also claims to have (or have had) Cerebral Palsy, Epilepsy and Multiple Endocrine Neoplasia type 1; as well as ADHD, Anxiety, Bipolar Disorder, Depression and OCD, for some of which he takes medication. He told Ms. Roach that he last saw a psychiatrist in 2016. The Crown notes, as does Ms.

Roach, that Mr. G. offered no medical evidence to support these diagnoses. [ 26 ] Ms. Roach also indicated Mr. G.’s limited social interaction: Due to the number of medical issues, he faces, he indicated he rarely leaves home and spends his time knitting and watching television. He denied any substance abuse; he noted he takes medications for his medical issues. He also described himself as an introvert. [ 27 ] Mr. G. told Ms. Roach that he did not live with I.P. who gave him the pictures of her son and he also denied that he asked I.P. to get the pictures for him.

The Crown disagrees with both statements and they are clearly wrong and misleading. As to cohabitation, it is true that Mr. G. and I.P. met online but it is also true, despite his denial, that Mr. G. lived with I.P. and her son in I.P.’s home, if only briefly. [ 28 ] As to denying that he requested the pictures from I.P., this excerpt from the Agreed Statement of Facts proves the contrary categorically:

• Number 67 [Mr. G. to I.P.]: “Do I wait till after you get pics to call or can you still taken them while on the phone” • Number 69 [Mr. G. to I.P.]: “Get him in the tub pls i want to call or I spoz I can tell you ready to get him in hang up for a bit and then get some” • Number 193 [Mr. G. to I.P.]: “send me pics again tonight please” • Number 206: [From I. P. to Mr. G.] “It seems you want pics of him more than me” • Number 207: [From I. P. to Mr. G.] “Just seems like you want him and not me” • Number 218 [Mr. G. to I.P.]: “Nice some if mr. monkey would be awesome” (in the texts I.

P.’s son is often referred to as Monkey of Mr. Monkey) [ 29 ] I note as well, that several of the text messages attached to the Agreed Statement of Facts are to the same effect, as this exchange between I.P. and Mr. G. shows: • I.P. to Mr. G.: “he is in the tub now so i should be able to get u a pic when he gets out” • Mr. G. to I. P.: “Or 100 lol”. [ 30 ] Ms. Roach also noted that “[t]he policies and procedures governing probation and conditional sentence supervision were reviewed with Mr. G. and he indicated understanding. Mr.

G. agreed to comply with any conditions deemed appropriate by the Court should a community sentence be included in the disposition of these matters. He is deemed a suitable candidate for community supervision”. [ 31 ] In Friesen the Supreme Court of Canada noted various factors that a court should take into account when sentencing offenders for sexual offences involving children.

I drew these factors from the quotation from Friesen that I included earlier in these reasons: • Sentences must send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. • Sentences for these crimes must increase. • Sentences must be proportionate to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children. • Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large. [ 32 ] I also note the three factors on which the Supreme Court provided “special guidance” to courts in Friesen : 1.

Upward departure from prior precedents and sentencing ranges may well be required to impose a proportionate sentence; 2. Sexual offences against children should generally be punished more severely than sexual offences against adults; and 3. Sexual interference with a child should not be treated as less serious than sexual assault of a child. The Factors: • Sending a Strong Message about Wrongfulness [ 33 ] When I read the text messages attached to the Agreed Statement of Facts that the Crown and Mr. G. filed in this matter, I note that I.P. and Mr.

G. minimize their actions, talking euphemistically about what they were doing and understating it. For example, when I.P. and Mr. G. were discussing his “relationship” with I.P.’s son and describing it as “stepfather-stepson”, I.P. comments: “…he is very lucky to have u in his life”. At another point, Mr. G. says to I.P.: “Kk I would just sleep so better knowing we are in the right path i want to see you guys every night im not with you”. [ 34 ] At a glance, these comments suggest that Mr. G. cared for I.P.’s son in a fatherly way and that I.P. was grateful to him for the concern he had for her son.

That, of course, is utterly wrong. Mr. G. looked at I.P.’s young son as a sexual object and he solicited naked pictures of the boy to meet his prurient interests. I.P. had been in a relationship with Mr. G. and she wanted to resume that relationship so she did the unthinkable and exploited her vulnerable and innocent son with the hope that it might placate Mr. G. and he would return to the relationship. Neither Mr.

G. nor I.P. accepted that they were doing a grievous wrong by pursuing what they wanted themselves, and disregarding the potential harm that their depraved conduct bore for the young boy they objectified by it. • Sentences Must Increase [ 35 ] In sentencing I.P. in 2020, O’Brien, J. reviewed the case law on sentencing that was current at the time and sentenced I.P. to 14 months’ in jail. The Supreme Court of Canada had not issued Friesen by then so O’Brien, J. did not have the benefit of the Supreme Court’s review of sentencing to assist her.

She noted that “[n]either counsel was able to find any case that was similar to the facts of the present case”; so “I have selected the cases that I consider to be most relevant for review”. ( I.P. , paragraph 38 ):

• R. v. Carter , 2019 NLCA 39 : 2 years’ imprisonment. • R. v. (M.) , 2014 NLTD(G)30: 6 months’ imprisonment, 19 months’ probation. • R. v. S. (J.V.) , 2015 NSPC 73 : 21 months’ imprisonment. • R. v. M. , 2013 ONSC 6174 : 2 years imprisonment, less a day. • R. v. Barran , 2018 ONCJ 55 : 12 months’ imprisonment, part of a global sentence of 30 months. • R. v. M.M. , 2017 ONCJ 733 : 36 months’ imprisonment, part of a global sentence of 48 months’. • R. v. Ravneck , 2015 MBQB 122 : 1 year imprisonment. • R. v.

M. (J.S.) , 2013 ABPC 296 : 2 charges, 15 month’s imprisonment each, to be served consecutively, one reduced to 12 months’ because of totality. [ 36 ] All of these cases deal with possessing and/or making child pornography, in a “family” context where the accused were in positions of trust to varying degrees for the children that they violated. [ 37 ] In Friesen , the Supreme Court of Canada noted that “Parliament has repeatedly increased sentences for sexual offences against children [in recent years]” ( Friesen , paragraph 98 ).

In particular, it referred to the increases that took place in 1987, 2005 and 2015 and observed that “[t]o respect Parliament’s decision to increase maximum sentences, courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences”. ( Friesen , paragraph 100 ) [ 38 ] I note, in particular, that the 2015 increases include raising the new maximum punishment for possessing child pornography from 5 to 10 years’ imprisonment and for making and distributing child pornography from 10 years to 14 years, when these offences are punished by indictment. [ 39 ] The post-2015 cases that O’Brien, J. referred to in I.P. when she sentenced the accused in 2020 have a range 12 months’ imprisonment ( Barran & Ravneck ) to 36 months’ imprisonment ( M.M. ).

In this case, the Crown recommends a sentence of 2 years’ imprisonment, less a day, to be followed by 3 years’ probation; while the defence recommends the 14 months’ imprisonment that O’Brien, J. imposed in I.P., which the defence submits is “on all fours with this case”. • Proportionate to the Gravity of the Offence [ 40 ] I.P.’s son was 6 years old in 2016 when I.P. and Mr. G. drew him unwittingly into their perverse machinations: For I.P. she hoped to re-establish her relationship with Mr. G. by offering him liberal access to her son and for Mr.

G. he hoped to satisfy his sexual perversion by exploiting the child with I.P.’s complicity. The adults knew what they were doing and they knew that it was wrong. The child did not know that the adults were exploiting him, yet he had (and still has) the most to lose because they used him so shockingly. [ 41 ] I note this especially disturbing excerpt from the Agreed Statement of Facts: I. P. told Cst. Strickland in her Caution Statement that she and the Accused joked that if anyone saw it they would call it child pornography.

At page 14 of her statement I.P. says, “Ah I mean there were times it was brought up and I knew it wasn’t appropriate and I like said well if someone finds out well I’m gonna get accused of getting child porn … Lol kinda thing but it was never, looked at that way so I mean it’s not like I did not think it”. [Emphasis added] [ 42 ] I.P. knew she was creating child pornography when she photographed her son and that she was distributing child pornography when she sent the pictures to Mr. G.. And Mr.

G. knew that he was participating in those offences when he asked I.P. to get him the pictures and in possession of child pornography when he received the pictures from her. [ 43 ] I.P. was clearly in a position of trust to her son. O’Brien, J. took that into account when she sentenced her: “…as the mother of Child, she has betrayed a significant position of trust. While there is no need to rank positions of trust, it is difficult to imagine someone more vulnerable than a child under the powerful influence of their parent ” ( I.P. , paragraph 52 ; [Emphasis added]). [ 44 ] But so was Mr.

G. in a position of trust vis-à-vis I.P.’s son; as these text messages he exchanged with I.P. reveal: • I.P. to Mr. G.: “you are a great step father to A.P. and thats how he looks at u ” • Mr. G. to I.P.: “And i look at him as a step son ” • I. P. to Mr. G.: “I know you do he is very lucky to have u in his life” • …. • Mr. G. to I. P.: “Will i no you and him still trust me you can send me millions of photos and ill love everyone of them just as much as ill love you too” • I. P. to Mr.

G.: “of course i trust u baby. and so does he. he wanted me to tell you that he loves you and he cant wait for you to come back over that he misses u” [ Emphasis Added ] [ 45 ] I acknowledge that Mr. G.’s position of trust to I.P.’s son is not as substantial as I. P.’s position of trust is to her son, as O’Brien,

J. described it in I.P. but it seems that Mr. G. wanted, whether sincerely or not, to portray himself to the Child as a “father” figure and that the Child was ready, with I.P.’s indulgence to adopt him. This factor makes the offence much graver and seriously aggravates Mr. G.’s criminality. [ 46 ] There is another factor that adds to the seriousness of this offence for Mr. G.. He pleaded guilty and accepted the Agreed Statement of Facts after his counsel informed him of section 606 (1.1) of the Criminal Code , which provides: 606

(1.1) A court may accept a plea of guilty only if it is satisfied that (

a) the accused is making the plea voluntarily; (

b) the accused understands (

i) that the plea is an admission of the essential elements of the offence, (ii) the nature and consequences of the plea, and (iii) that the court is not bound by any agreement made between the accused and the prosecutor; and (

c) the facts support the charge. [ 47 ] Yet, when Mr. G. met with Ms. Roach, the Adult Probation Officer for the pre-sentence report, he denied that he ever lived with I.P. and also denied that he asked I.P. to get the pictures of her son for him. Both statements are clearly wrong and are evident attempts by him to diminish his misconduct.

They also suggest that he does not accept as full responsibility for the offence as his plea of guilty and acceptance of facts suggest. • wrongfulness of sexual violence against children and the far-reaching and ongoing harm. [ 48 ] In Friesen , the Supreme Court of Canada noted that “[t]he prime interests that the legislative scheme of sexual offences against children protect are the personal autonomy, bodily integrity, sexual integrity, dignity, and equality of children”: This Court recognized the importance of these interests in Sharpe in the context of the production of child pornography.

As this Court reasoned, the production of child pornography traumatizes children and violates their autonomy and dignity by treating them as sexual objects, causing harm that may stay with them for their entire lifetime…Sexual violence against children is thus wrongful because it invades their personal autonomy, violates their bodily and sexual integrity, and gravely wounds their dignity…”. (Paragraph 51) [ 49 ] The Court also recognized how “personal autonomy” differed for children from adults: Children under the age of 16 of course lack the capacity to consent to sexual contact with an adult… [A] child’s participation in such contact is not a mitigating factor and should never be equated to consent.

Instead, personal autonomy refers to a child’s right to develop to adulthood free from sexual interference and exploitation by adults…”. (Paragraph 52) [ 50 ] I.P.’s son was 6 years old when I.P. and Mr. G. violated his “personal autonomy”, by drawing him into a deviant process and exploiting his naiveté for their base purposes. He was old enough, I expect, to be aware of what was happening to him, but clearly not old enough to consent and he may carry the trauma and burden of their actions for his lifetime. [ 51 ] I find, for the following reasons, that an appropriate sentence for Mr.

G. for this offence is 18 months’ imprisonment: • He was in a position of trust towards I.P.’s son. • He was preoccupied with I.P.’s son, even to excluding her. • He beseeched and enticed I.P. to provide a continuing supply of pictures to him and devised new approaches when previous strategies fell by. • He directed the picture-taking, looking for pictures of the child in the bath, or as he exited it, preferably naked. • He managed the picture-taking to his preferences. • He exploited I.P.’s eagerness to please him. • He displayed an insatiable appetite for more pictures. • He knew what he was doing and he knew that it was wrong. • He denied that he lived with I.P. and that he asked her for pictures of her son when there is incontrovertible evidence of both, to the contrary. [ 52 ] I acknowledge that Mr.

G. has no prior criminal record, that he pleaded guilty and that he accepted the Agreed Statement of Facts so that a trial was not required. I also note that the number of pictures that Mr. G. had in his possession was relatively small, compared to other cases and further that there is no evidence Mr. G. ever had any physical contact with I. P.’s son. However, Mr. G. did not plead guilty until four and a half years after he was charged with the offence and only then after numerous postponements, practically all of them at Mr. G.’s request. I also note his recent efforts to minimize his involvement in the offence.

[ 53 ] I am aware that this is a longer sentence than O’Brien, J. imposed on I.P. for creating and distributing the pornography. However, the Supreme Court of Canada’s judgment in Friesen changed how society and the criminal system view sexual offences involving children. This judgment was released after O’Brien, J. sentenced I.P. and supports my belief that Mr. G.’s crime deserves an increased sentence. [ 54 ] In addition, Mr. G. acted more deviously and purposefully than I. P.: He wanted the pictures of I. P.’s son; he knew I. P. wanted him to resume their relationship; he also knew that “[I.

P.] would do anything for u”; and he played on I. P.’s emotional attachment to him to get the pictures. Thus, he set up the process by which I. P. made the pornographic pictures of her son, then transmitted them to him and he received and maintained possession of them. [ 55 ] I credit Mr. G. with 30 days credit for the time he has been in custody since I remanded him for sentencing on April 8, 2022. That is 20 days of actual time in custody, at 1.5 times. Ancillary Orders [ 56 ] As well I make the following ancillary orders: Probation Order [ 57 ] I order Mr.

G. to comply with a Probation Order for 36 months, to start immediately upon his release from prison. In addition to the statutory conditions, which are mandatory pursuant to

section 732.1(2) of the Criminal Code , Mr.

G. must also comply with the following additional conditions: • He must report to an adult probation officer in person or as otherwise required within three days of his release from prison and thereafter as directed. • He must attend and participate in any counseling or treatment sessions arranged or recommended by his probation officer especially concerning mental health, child sexual abuse and the creation, distribution and retention of child pornography. • He will have no contact with I.P. or her son, A.P. • He will not attend at any place where I.P. or A.P. reside or in the latter’s case, attends school. • He may not own, possess or use any electronic devices that permit him to message, text, email, browse the Internet, view social media or for any other purpose.

Prohibition Order [ 58 ] Further, in accordance with

section 161 of the Criminal Code , I prohibit Mr. G. from: 1. Attending a public 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, schoolground, playground or community centre. 2. Being within five kilometres of any dwelling-house where I.P. and A.P. ordinarily reside. 3. Seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years. 4.

Having any contact - including communicating by any means - with a person who is under the age of 16 years, unless he does so under the supervision of an adult person, or 5. Using the Internet or other digital networks. Forfeiture Order [ 59 ] Under

section 164.2(1)(

a) of the Criminal Code , I forfeit all cellphones, laptops and any other electronic devices that were seized from Mr. G. that were connected with the child pornography charges. DNA Order [ 60 ] I make a mandatory DNA order in Form 5.03., by the authority granted under

section 487.051(1) of the Criminal Code . Sex Offender Registration [ 61 ] I also make a mandatory order as to the Sex Offenders Information Registration Act , S.C. 2004, c. 10 , under

section 490.012(1) of the Criminal Code . It applies, by

section 490.013 (2.1) of the Criminal Code for Mr. G.’s lifetime.

Summary and Disposition [ 62 ] B.J.G. pleaded guilty to possessing child pornography contrary to

section 163.1 (4) of the Criminal Code ; and appeared before Court on April 8, 2022 for sentencing. The Court remanded Mr. G. in custody, pending sentence. [ 63 ] On April 28, 2022, the Court sentenced Mr. G. to 18 months’ imprisonment, less 30 days credit for time served and ordered him to comply with the conditions of a probation order for 3 years from the date of his release. It also made ancillary orders for prohibition, forfeiture, DNA and sex offender registration.

_____________________________ Garrett A. Handrigan Justice