R. v. I.P., 2020 NLSC 2

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. I.P. , 2020 NLSC 2 Date : January 8, 20 20 Docket : 201806G0115 Her Majesty The Queen v. I.P. 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Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way.

AND: Restriction on Publication: By court order made under subsection 539(1) of the Criminal Code , the evidence taken at the preliminary inquiry shall not be published in any document or broadcast or transmitted in any way until the accused is discharged after the preliminary hearing, or, if the accused is committed to stand trial, until the end of the trial. Before: Justice Katherine O'Brien Reasons for Judgment Given Orally Place of Hearing: Grand Bank, Newfoundland and Labrador Dates of Hearing: November 27, 2019 Date of Oral Judgment: January 8, 2020

Summary:

Following a finding of guilt by a jury to one count of making child pornography contrary to

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

section 163.1(3) of the Criminal Code , the offender was sentenced to 14 months of imprisonment on each count, to be served concurrently. Two years of probation was ordered and other mandatory ancillary orders were made. The offender was a 38-year-old woman with no prior criminal record. The victim was her child. The offender took photographs that were child pornography and sent them to her boyfriend who wanted them for his sexual stimulation. Appearances: Alison J. Manning Appearing on behalf of the Crown Marcus A. Evans, Q.C. Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v.

Carter , 2019 NLCA 39 ; R. v. R. (M.) , 2014 NLTD(G) 30 ; R. v. S. (J.V.) , 2015 NSPC 73 ; R. v. M. , 2013 ONSC 6174 ; R. v. Barran , 2018 ONCJ 55 ; R. v. M.M. , 2017 ONCJ 733 ; R. v. Ravneck , 2015 MBQB 122 ; R. v. M. (J.S.) , 2013 ABPC 296 ; R. v. Hutchings , 2012 NLCA 2 ; R. v. Newman , 2009 NLCA 32 ; R. v. J. (K.R.) , 2016 SCC 31 STATUTES CONSIDERED: Criminal Code , R.S.C. 1985, c. C-46 ; Sex Offender Information Registration Act, S.C. 2004, c. 10 REASONS FOR JUDGMENT O'Brien, J. : INTRODUCTION [ 1 ] I.P. was found guilty following a trial by jury of making child pornography contrary to

section 163.1(2) of the Criminal Code , R.S.C. 1985, c. C-46 and of transmitting child pornography contrary to

section 163.1(3) of the Criminal Code . The matter has come before me for sentencing. Facts [ 2 ] Between December 1, 2016, and January 15, 2017, I.P. took photographs of her child, referred to as Child in this decision, and sent them to her then-boyfriend B.G. electronically, by either Facebook Messenger or cellphone. Child was 6 years old. There are 18 photographs of Child either naked or partially naked. Child’s genitals or anal region is exposed in a number of the photographs. Child’s face is also visible in most of the photographs, such that Child is recognizable.

I.P. was texting with B.G. when most of the photographs were sent and some of the text messages are of a sexual nature. [ 3 ] There is no evidence that I.P. took or transmitted the photographs for her own sexual stimulation. Rather, the evidence established that I.P. knew, or was willfully blind to the fact, that B.G. wanted the photographs for his sexual stimulation. B.G. asked I.P. to send him naked pictures of Child. I.P. testified that she wanted to keep B.G. in her and Child’s life because she considered B.G. a father figure for Child.

Sentencing Objectives [ 4 ] Determining an appropriate sentence starts with the principles of sections 718 , 718.1 and 718.2 of the Criminal Code , which I will briefly outline. [ 5 ] The sentence must contribute to respect for the law and the maintenance of a just, peaceful, and safe society.

It should meet one or more of the following objectives: denunciation, deterrence, separation of offenders from society where necessary, rehabilitation, reparation, and general promotion of a sense of responsibility in offenders, and an acknowledgement of the harm done to victims and to the community. [ 6 ] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 7 ] It is also important to consider the offender’s personal circumstances and family and social background, alternatives to incarceration where they are available and appropriate, and any factors that mitigate or aggravate the offences. [ 8 ] Finally, while each case and each offender is unique, a fit sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

This is known as the principle of parity. To arrive at a sentence that is in parity with other sentences, courts look at comparable sentencing decisions. Any disparity between sanctions for different offenders should be

justified. [ 9 ] In

summary, the sentencing sections of the Criminal Code have as their primary focus the protection of the public, which is best achieved by crafting a sentence that fits both the offence and the offender. [ 10 ]

Section 718.01 of the Criminal Code specifically addresses crimes against children, and requires a court imposing a sentence on a person who has committed an offence that involves the abuse of a child (someone under 18 years old) to give primary consideration to the objectives of denunciation and deterrence of such conduct. range of sentence under the criminal code [ 11 ] The minimum punishment for making child pornography is imprisonment for a term of one year.

The maximum punishment is 14 years of imprisonment. [ 12 ] The minimum punishment for transmitting child pornography is also imprisonment for a term of one year, with a maximum punishment of 14 years of imprisonment. crown position [ 13 ] Crown counsel submits that the appropriate sentence for I.P. is two years of imprisonment on the making child pornography charge and two years of imprisonment on the transmitting child pornography charge, served concurrently. [ 14 ] Given the time I.P. has spent in remand, once that credit is applied, the Crown notes that the imprisonment would be less than two years, such that I.P. would be eligible for a probation order.

The Crown requests three years of probation. [ 15 ] The Crown also seeks a forfeiture order for the cell phone devices seized and states that a DNA order and an order to comply with the Sex Offender Information Registration Act , S.C. 2004, c. 10 , are both mandatory in this case. [ 16 ] Finally, the Crown notes that a prohibition order pursuant to

section 161 of the Criminal Code , which would prohibit I.P. from certain activities that could bring her in contact with children, is discretionary in this case. Crown counsel seeks such an order, in particular, one that would prohibit I.P. from working with children or using the internet other than for education and employment purposes.

She requests a duration for this order of 10 years. [ 17 ] In support of her position, Crown counsel has filed the cases listed in Appendix A. [ 18 ] The Crown acknowledges that I.P. has no prior criminal record and this is a mitigating factor, but notes that people convicted of child pornography charges often do not have prior records. [ 19 ] Crown counsel emphasized what she considers as aggravating factors. Chief among those is that I.P. committed the offences against her own child.

Section 718.2 (a)(iii) requires a sentencing court to consider as an aggravating circumstance evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim. It is well accepted law that a parent is in a position of trust with respect to their child. [ 20 ] Crown counsel also submits that the young age of the victim, six years old, is an aggravating factor. [ 21 ] Finally, Crown counsel submits that the fact that Child can be identified in the photographs is aggravating.

Defence position [ 22 ] Defence counsel submits that the appropriate sentence is one year of imprisonment on the making child pornography charge and one year of imprisonment on the transmitting child pornography charge, served concurrently. [ 23 ] Defence counsel did not file any further case law but noted that the cases filed by the Crown show a significant range in sentences. He notes that in the present case there is no evidence that the photographs were posted on the Internet or circulated more widely than to B.G.

He also emphasizes that, unlike in many of the cases filed, there is no evidence here of any sexual assault or sexual touching or interference against Child. [ 24 ] Defence counsel points to I.P.’s poor mental health, as evidenced by the Pre-Sentence Report, as mitigating and also submits the fact she was not acting for her own sexual gratification reduces her moral culpability. [ 25 ] Although the Pre-Sentence Report did not include a risk evaluation for re-offense, Defence counsel submits that in the circumstances, such risk would be low because I.P. no longer has custody of her child. [ 26 ] The Defence was not opposed to probation and did not dispute the mandatory orders put forward by the Crown, but did not agree with a prohibition order preventing internet use for anything other than work or education.

He submitted that in 2019 it is difficult to conduct daily life without the internet and that, practically, such a restriction is difficult to enforce and difficult for offenders to follow. He raises the same concern for any similar condition placed in a probation order. analysis Circumstances of the Offender [ 27 ] I.P. is 38 years old. She grew up in rural Newfoundland, the youngest of a large family. Her father died when she was young. She has a close relationship with her mother, but is not as close with her siblings. One of her siblings died when I.P. was a young adult.

[ 28 ] I.P. graduated high school and completed a postsecondary course but she never worked in that field. In late 2004, she moved to another Canadian province and was employed there in retail for approximately four years. She left her job when she moved back to Newfoundland. She was pregnant with Child when she moved home and leaving an abusive relationship with Child’s biological father, who has not had any role in their lives since. I.P. has not been employed since Child’s birth. [ 29 ] Shortly after Child’s birth, I.P. began a relationship with a man whom she eventually married.

The couple separated when Child was four years old, and they later divorced. [ 30 ] I.P. began a relationship with B.G. in the fall of 2016. The two met on an online dating site. B.G. was initially living outside of Newfoundland, but he soon moved back to this province, where he is from, to a community not that far away from where I.P. lives. B.G. and I.P. never lived together, but they would regularly spend weekends at each others’ houses. When I.P. travelled to B.G.’s house for visits and overnights, Child would accompany her.

When B.G. stayed at her house, Child was present. [ 31 ] I.P. and B.G. communicated regularly by cell phone, Facebook Messenger, and text messages. Between December 1, 2016, and January 15, 2017, I.P. took the photographs that are the subject of the present criminal offences and sent them to B.G. The photographs came to the attention of police because I.P. used someone else’s phone to access her Facebook Messenger account and left the application open on the phone. That person saw some of the images on her phone and eventually made a report to the police. [ 32 ] I.P. does not have any prior criminal record.

She is an infrequent drinker and does not use drugs or gamble. [ 33 ] I.P. has suffered from anxiety and depression since the age of 12. She believes this is the result of her being bullied as a child and also the anger and grief she feels because of the death of her father and sibling. I.P. has been treated for her mental health conditions on and off since 2007 when she was formally diagnosed with Major Anxiety and Depressive Disorder.

She has been prescribed medications, which she has found very helpful and is currently taking on a daily basis. [ 34 ] The Pre-sentence Report describes I.P.’s attitude toward her offences: When asked how she now feels about her current offences, [I.P.] admitted to her behavior and illustrated remorse for such.

She described her actions as being “the worst thing a parent could ever do” and is aware of the impact that it has had on her child and family. [I.P.] stated that her actions were driven by her desire to maintain a relationship with a person she considered to be a suitable partner for her and a father figure for her child. Despite the fact that [I.P.] admitted to her offences and showed remorse for such, she continues to rationalize her behavior to some degree. [ 35 ] The above report is consistent with my observations. I.P. is remorseful for what she has done and acknowledges that what she has done is wrong.

Yet she frames her actions as being primarily motivated by her wanting a father figure for Child, and Child enjoying having B.G. in their lives. That is, she portrays herself as being focused on Child’s best interest, as opposed to her own interest in having B.G. as a boyfriend who provided her with adult company and purchased material things for her. Clearly, I.P. was not focussed on Child’s best interest. Her actions to keep B.G. satisfied were selfishly motivated and caused great harm to Child. [ 36 ] The Department of Children, Seniors and Social Development (“CSSD”) removed Child from I.P. upon her arrest.

Child is now in CSSD’s continuous care. Although I.P. can have supervised access to Child, she does not have custody. Victim Impact Statement [ 37 ] No Victim Impact Statement was filed. Comparable Sentencing Decisions [ 38 ] The cases filed by the Crown cover a broad range of circumstances and include sentences for making and distributing child pornography from six months (prior to the 2005 amendments to the Criminal Code providing for a mandatory minimum sentence of one year) to three years of imprisonment. Neither counsel was able to find any case that was similar to the facts of the present case.

In almost all of the cases filed, the offenders were motivated by their own sexual gratification. In many of the cases, the children were also victims of sexual abuse or interference. I have selected the cases that I consider to be most relevant for review. [ 39 ] In R. v. Carter , 2019 NLCA 39 , Mr. Carter appealed his sentence related to six offences, including distribution of child pornography and child luring, against four children. The Court of Appeal identified distribution of child pornography as the most serious of Mr. Carter’s offences. Mr.

Carter had retransmitted to a third party nine videos of a 14-year-old with cognitive developmental delay engaged in sexual acts. The Court of Appeal did not vary the sentence of two years imprisonment imposed by the trial judge for this offence. [ 40 ] In R. v. R. ( M. ) , 2014 NLTD(G) 30 , the offender plead guilty to making child pornography. He had taken four or five photographs of his seven-year-old step-granddaughter with her top off and pants down. He was sentenced to six months of imprisonment and 18 months of probation.

The sentencing judge considered as mitigating factors a guilty plea, no prior related criminal record and that there were a small number of images, which were destroyed. He also considered aggravating factors of the offender’s position of trust with respect to the child, her young age and the fact that the photoshoot was planned. This case, which related to events in 2002, pre- dates the 2005 amendments to the Criminal Code , which enacted a mandatory minimum sentence of one year of imprisonment for the indictable offence of making child pornography. [ 41 ] In R. v.

S. (J.V.) , 2015 NSPC 73 , the offender plead guilty to sexual interference and making child pornography. The victim was his 8 or 9-year-old stepdaughter. The making child pornography offence related to videos the offender took of the child bathing, of him removing her clothing and exposing her body, and of him rubbing his penis against her vagina. In determining that an appropriate sentence for the child pornography charge was 21 months of imprisonment, the sentencing judge considered that the offender was in a

position of trust in relation to the child and that he acted for his own sexual gratification, which involved his sexual abuse and exploitation of the child. [ 42 ] In R. v. M. , 2013 ONSC 6174 , the offender plead guilty to making child pornography for taking a topless photograph of his stepdaughter, who was in her early teens, while she was asleep. He also plead guilty to charges of possession of child pornography and making it available. The possession and making available offences related to a number of other videos and images involving other children.

The offender was sentenced to two years of imprisonment less a day on the making charge. He received the same sentence for the making available charge and one year imprisonment on the possession charge, both served concurrently. The trial judge considered the offender’s violation of the trust involved in the step-parent relationship as an aggravating factor and stated “although the taking of this photography is not the most egregious example of the production of child pornography, the contents of the victim impact statement make it abundantly clear as to the devastating effect that it has had on Mr.

M’s step-daughter.” [ 43 ] In R. v. Barran , 2018 ONCJ 55 , Mr. Barran plead guilty to sexual interference and making child pornography. The victim was his girlfriend’s 11-year-old child. He entered the child’s room while the child was sleeping, exposed the child’s vagina, touched it with his hands and penis and took several photos. Mr. Barran was given a global sentence of 30 months’ imprisonment comprised of 18 months for sexual interference and 12 months for making child pornography. The Crown and Defence were agreed on 12 months for the child pornography charge.

There was no evidence that the photographs were distributed or shared, however the sentencing judge noted “[s]ince virtually all cell phones have internet capability and photos can be shared almost instantaneously through any number of sites for file sharing services, it would be entirely reasonable for [the child] to be concerned that copies of the images continue to exist despite the seizure of Mr. Barran’s phone.” [ 44 ] In R. v. M.M. , 2017 ONCJ 733 , M.M. plead guilty to making available child pornography, possessing child pornography, making child pornography, sexual assault and sexual exploitation.

Over a period of time from when she was 13 to 17 years old, M.M. had exposed his stepdaughter’s vaginal and anal areas and photographed them while she was sleeping. In some of the photographs, his hands and penis were seen touching these areas of her body. Her face was visible in some of the images. M.M.’s child pornography collection was large and included images and videos of other children, not just his stepdaughter. He had uploaded files, including the above-described images of his stepdaughter, to an internet chat room.

M.M.’s position of trust in relation to his stepdaughter was one of the aggravating factors considered by the sentencing judge, as was the fact that her identity was discernable in some of the photographs that were distributed. M.M was sentenced to 36 months of imprisonment for making child pornography and 36 months of imprisonment, concurrent, for distributing it. His total sentence was 48 months less pre-trial custody credit. [ 45 ] In R. v. Ravneck , 2015 MBQB 122 , a 77-year-old first offender was convicted of making and possessing child pornography. Mr.

Ravneck brought two young girls to his home, plied them with liquor, asked them to remove their clothes and photographed them while naked. He knew the girls because he had, according to the trial judge, “inserted himself into the family life” of one of them, bought her material things that her mother could not afford and assumed the position of a trusted family friend. There was no finding, however, that Mr. Ravneck was in a positon of trust or authority in relation to the victims. Mr.

Ravneck was sentenced to one year of imprisonment for making child pornography and six months of imprisonment, concurrent, for possession of it. [ 46 ] In R. v. M. (J.S.) , 2013 ABPC 296 , a father plead guilty two counts of making child pornography in relation to his two teenage daughters. He had surreptitiously recorded them while they were undressed and showering in the washroom of their family home. He had no prior criminal record. His “high” position of trust with respect to his daughters was one of the aggravating factors considered.

The sentencing judge determined that, viewed individually, the appropriate sentence for each of the charges of making child pornography (one for each daughter) was 15 months imprisonment, to be served consecutively. He declined to impose only the mandatory minimum sentence for each offence because that would ignore the aggravating features. However, he did reduce one of the sentences from 15 months to 12 months based on the principle of totality. sentence [ 47 ] I will proceed to apply the analyses directed by R. v. Hutchings , 2012 NLCA 2 .

Proper Sentences for Each Offence [ 48 ] The following are the sentences that I determine as proper for each offence: a. making child pornography contrary to

section 163.1(2) of the Criminal Code – 14 months imprisonment; and b. transmitting child pornography contrary to

section 163.1(3) of the Criminal Code – 14 months of imprisonment. [ 49 ] In arriving at these sentences, I have considered I.P’s personal circumstances. Firstly, that she has no prior criminal record is a mitigating factor. Secondly, these 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. I believe that I.P. is remorseful for what has happened.

I also accept that I.P. is at low risk for committing any similar offence in the future. [ 50 ] I also consider as mitigating that the number of images was low relative to other cases and that the period of time in which I.P. engaged in this activity was relatively brief. [ 51 ] That being said, the mandatory minimum sentence of one year of imprisonment for each of the charges is not an appropriate sentence for I.P. In considering a mandatory minimum sentence for living on the avails of prostitution of a person under the age of 18 years, Welsh J.A. on behalf of the Court of Appeal in R. v.

Newman , 2009 NLCA 32 , wrote the following commencing at paragraphs 55 to 57:

[55] In R. v. Morrisey, 2000 SCC 39 , [2000] 2 S.C.R. 90, the issue of mandatory minimum sentences was considered inthe context of

section 12 of the Canadian Charter of Rights and Freedoms, the right not to be subjected to any cruel and unusualtreatment or punishment.

While that is not the issue in this case, a discussion by Arbour J., McLachlin C.J.C. concurring, with themajority not commenting on the point, provides interpretive assistance regarding the effect of mandatory minimum sentences in relationto general principles of sentencing: [75]… By fixing a minimum sentence, particularly when the minimum is still just a fraction of the maximum penalty applicable to theoffence, Parliament has not repudiated completely the principle of proportionality and the requirement, expressed in s. 718.2(b), that asentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

Therefore,in my view, the mandatory minimum sentences for firearms-related offences must act as an inflationary floor, setting a new minimumpunishment applicable to the so-called “best” offender whose conduct is caught by these provisions. The mandatory minimum must notbecome the standard sentence imposed on all but the very worst offender who has committed the offence in the very worstcircumstances.

The latter approach would not only defeat the intention of Parliament in enacting this particular legislation, but alsooffend against the general principles of sentencing designed to promote a just and fair sentencing regime and thereby advance thepurposes of imposing criminal sanctions. [emphasis added by Welsh, J.A.] [56] The approach proposed by Arbour J. is discussed in R. v. M. (B.C.) (2009), 2008 BCCA 365 , 238 C.C.C. (3d) 174(BCCA).

Neilson J.A., for the Court, summarized: [32] … Thus, the least culpable offender in the least serious circumstances, who might have received a more lenient sentence prior to BillC-2 [imposing a mandatory minimum penalty], will now be sentenced to one year in prison. It would be inconsistent withproportionality if worse offenders in more serious circumstances, who might have received a one year sentence prior to Bill C-2,continue to be sentenced to one year under the new regime.

The principle that similar offenders should receive similar sentences requiresacknowledgement that a minimum sentence has a proportionate inflationary effect on the balance of the sentencing range. [33] There has been little appellate comment on this issue. The Alberta Court of Appeal in R. v. Colville, 2005 ABCA 319, 201 C.C.C. (3d) 353, at paras. 21-26, and R. v.

Ferguson, 2006 ABCA 261 , 212 C.C.C. (3d) 161, at para. 85, bothcases dealing with mandatory minimum sentences for firearms offences, adopted Justice Arbour’s view that a mandatory minimumsentence acts as an inflationary floor and sets a new minimum punishment for the best offender.

The Supreme Court of Canada upheldthe decision of the Court of Appeal in Ferguson without comment on this point: 2008 SCC 6 , 228 C.C.C. (3d) 385. [34] The view that a minimum sentence creates an inflationary floor is consistent with Parliament’s clear intent in enacting Bill C-2,that offenders who victimize young people receive longer sentences. … [emphasis added by Welsh, J.A.] [57] I agree with these statements of principle. Accordingly, while the trial judge in earlier times may have imposed a sentencesubstantially lower, the floor of the range of sentence has been altered, and specified, by Parliament.

Applying the Criminal Code inlight of section 212(2) requires a sentence of twenty-four months for an offence at the lower end of the spectrum. Consistent with theprinciple of proportionality, longer sentences must be imposed for more serious offences. [52] A sentence of one year of imprisonment is thus appropriate for the so-called “best” offender whose conduct is caught by thechild pornography provisions. Yet I.P. is not that offender because, as the mother of Child, she has betrayed a significant position oftrust.

While there is no need to rank positions of trust, it is difficult to imagine someone more vulnerable than a child under the powerfulinfluence of their parent.

Section 718.2(a)(iii) of the Criminal Code mandates that I consider I.P.’s breach of her position of trust as anaggravating factor. [53] I also consider as an aggravating factor that Child is recognizable in most of the photographs. Although there is no evidence thatthe photographs were distributed more broadly, once I.P. transmitted them to B.G. she no longer had control over where they went.

Asvictims of child pornography grow up and deal with the trauma of the crime that was committed against them, it is understandable thatthey might worry about who has seen the images and whether someone will recognize them. [54] I agree with the reasoning in R. v. M. (J.S.) that to impose mandatory minimum sentence for each offence in this case would beto ignore the aggravating factors. Single Criminal Adventure

[55] If the above sentences were served consecutively, as they presumptively would be, the total sentence would be two years andfour months. However, I consider the offences as forming part of a single criminal adventure because I.P. would not have taken thephotographs if she was not also going to send them to B.G. This is not a case where I.P. was using the photographs for her own sexualpleasure and also sharing them. She only took the photographs because B.G. wanted them. As such, it is appropriate that the offences beconsidered as a single event such that the sentences should be served concurrently.

Totality [56] The next step in the analysis is to apply the principal of totality. [57] Had I not treated the offences as a single criminal adventure and imposed concurrent sentences for that reason, I would haveordered the sentences to be served concurrently on the basis of totality. A sentence of two years and four months would have beenconsiderably more than what the Crown was seeking and it would have been unduly harsh. However, having already found it appropriateto have the 14-month sentences served concurrently, I do not consider the total sentence of 14 months imprisonment to be unduly long orharsh.

This is only two months above the mandatory minimum sentence and denunciation and deterrence are paramount in sentencing forchild pornography crimes so a significant sentence of imprisonment is appropriate. Credit for Pre-Trial Custody [58] At the time of the sentencing hearing, I.P. had spent 62 days in remand. As of today’s date she has spent 104 days. Both Crownand Defence counsel agree that pre-trial custody should be credited on a 1:1.5 basis. This results in 156 days of credit. One year and twomonths of imprisonment is 425 days. Less 156 days, I.P. has 269 days left to serve.

Ancillary Orders [59] In addition to the imprisonment sentence imposed, I make the following ancillary orders: Probation Order [60]

Section 731 of the Criminal Code provides that the court may impose a period of probation. Probation permits the offender tolive in the community subject to certain constraints, which are imposed for one or both of the purposes of rehabilitation and publicprotection. In this case, I consider that I.P. would benefit from the supervision of an adult probation officer and the professional servicesthat can be provided through probation. I thus order I.P. to comply with a Probation Order for 24 months, to commence immediatelyupon her release from prison.

This is, in my view, a long enough period to ensure that I.P. receives counseling to assist her to understandthe reasons for her behavior and to prevent a reoccurrence. In addition to the statutory conditions, which are mandatory pursuant tosection 732.1(2) of the Criminal Code, I.P. must also comply with the following optional conditions: 1. She must report to a an adult probation officer in person or as otherwise required within three days of her release from prison andthereafter as directed; and 2.

She must attend and participate in any counseling or treatment sessions arranged or recommended by her probation officerespecially concerning mental health and financial management. [61] I am not ordering a no-contact provision with Child based on Crown counsel’s submission that CSSD is strictly controllingcontact with Child already and the professionals of that organization are in the best position to judge what contact, if any, is appropriate. [62] Nor am I placing any restrictions on I.P.’s use of the internet. As I have already indicated, I consider I.P.’s risk to reoffend to below.

Any existing risk will be managed and reduced by counselling and the ancillary orders. The internet has become a basic living toolfor many people who use it to pay bills, do banking, book appointments, make purchases, get information on events and organizationsoperating in their communities, etc. A restriction on internet use is a considerable restriction on freedom that should be reserved for caseswhere unrestricted internet use poses a real and serious risk to the public. I do not consider this such a case. Prohibition Order [63] A prohibition order under

section 161 of the Criminal Code is discretionary and available where certain offences, including theones that I.P. has been found guilty of, are committed against a child under 16 years of age. The purpose of

section 161 is to protectchildren from individuals who have been convicted of such offences by limiting their contact with children. Any such order can be forlife or any shorter duration that the court considers desirable and a list of activities than can be prohibited by the order is provided insection 161(1). [64] The Supreme Court of Canada considered

section 161 in R. v. J. (K.R.), 2016 SCC 31, and held the following at paragraphs 47and 48: [47] As well, the design of s. 161 is consistent with its purpose of protecting children from sexual violence.

Section 161 orders arediscretionary and “subject to the conditions or exemptions that the court directs” (s. 161(1)). They can therefore be carefully tailored tothe circumstances of a particular offender. The discretionary and flexible nature of s. 161 demonstrates that it was designed to empowercourts to craft tailored orders to address the nature and degree of risk that a sexual offender poses to children once released into thecommunity.

Failure to comply with the order can lead to a term of imprisonment of up to four years (s. 161(4)). [48] Further, I agree with the line of cases holding that s. 161 orders can be imposed only when there is an evidentiary basis uponwhich to conclude that the particular offender poses a risk to children and the judge is satisfied that the specific terms of the order are areasonable attempt to minimize the risk: see A. (R.K.), at para. 32; see also R. v. R.R.B., 2013 BCCA 224 , 338 B.C.A.C. 106, at

paras. 32-34 . These orders are not available as a matter of course. In addition, the content of the order must carefully respond to an offender’s specific circumstances. [ 65 ] I have assessed I.P.’s risk to reoffend as low and, such that it exists, it will be managed by the involvement of CSSD, the terms of the probation order and the mandatory sexual offender registration ordered below. I do not consider there to be a sufficient evidentiary basis on which to conclude that a

section 161 order is justified in I.P.’s particular circumstances. Forfeiture Order [ 66 ] Under

section 164.2(1)(

a) of the Criminal Code , I order forfeiture of all cellphones and other items seized that were connected with the child pornography charges. DNA Order [ 67 ] Under

section 487.051(1) of the Criminal Code , I make a mandatory DNA order in Form 5.03. Sexual Offender Registration [ 68 ] An order under

section 490.012(1) in respect of the Sexual Offenders Information Registration Act , S.C. 2004, c. 10 , is mandatory. I make this order as a lifetime order pursuant to

section 490.013(2.1) of the Criminal Code . Conclusion [ 69 ] For the reasons provided, I.P. is sentenced to a period of 14 months imprisonment followed by two years of probation. The period of imprisonment is reduced by 156 days to reflect the time I.P. has spent in presentence custody. [ 70 ] The ancillary orders are as previously stated. Judgment accordingly. _____________________________ KATHERINE O’BRIEN Justice APPENDIX A AUTHORITIES FILED BY THE CROWN 1. R. v. Carter , 2019 NLCA 39 2. R. v. R. (M.) , 2014 NLTD(G) 30 3. R. v. White , 2013 NLTD(G) 30 4. R. v.

Hunt , 2019 CarswellNfld 202, 155 W.C.B. (2d) 735 (N.L.P.C.) 5. R. v. Campbell , 2017 CarswellNfld 27, 136 W.C.B. (2d) 468 (N.L.P.C.) 6. R. v. S. (J.V.) , 2015 NSPC 73 7. R. v. S.C. , 2019 ONCA 199 8. R. v. M. , 2013 ONSC 6174 9. R. v. Ly , 2019 ONCJ 120 10. R. v. Barran , 2018 ONCJ 55 11. R. v. M.M. , 2017 ONCJ 733 12. R. v. D.M. , 2018 ONCJ 423 13. R. v. Ravneck , 2015 MBQB 122 14. R. v. D.S. , 2019 MBPC 9

15. R. v. White, 2015 MBPC 20 16. R. v. CE , 2017 ABQB 357 17. R. v. M. (J.S.) , 2013 ABPC 296