R. v. Nepon, 2020 MBPC 48

CITATION: R. v. Nepon , 2020 MBPC 48 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) ) J. Ritchot and D. Carlson for the Crown ) - and - ) ) Jordan Nepon ) ) R. Wolson and C. MacDonald for the Accused Accused ) ) Judgment delivered: ) October 8, 2020 C.A. DEVINE, P.J. INTRODUCTION [ 1 ] Mr. Nepon pleaded guilty to the offence of possessing child pornography under Criminal Code

section 163.1(4) between the dates of February 11, 2018 and September 19, 2018. The Crown proceeded summarily. The offence carries with it a mandatory minimum sentence of six months in jail. Mr. Nepon is congenitally, legally blind, with only ten percent vision in one eye, and he has been diagnosed with Autism Spectrum Disorder (ASD) and Major Depressive Disorder. The defence is challenging the mandatory minimum sentence pursuant to

section 12 of the Charter , on the basis that imposing a jail sentence that Mr. Nepon would have to serve in a correctional facility would constitute cruel and unusual punishment. [ 2 ] The Crown is seeking a jail sentence of 15 months in a correctional facility.

The defence is seeking a Conditional Sentence Order (CSO), which is a jail sentence to be served in the community, to be followed by the maximum period of probation allowed by the Criminal Code , three years. [ 3 ] The mandatory minimum sentence for possession of child pornography has been struck down as constituting cruel and unusual punishment in the three cases where constitutional challenges have reached the appellate level in Canada. These were R. v. John, 2018 ONCA 702 and R. v.

Alexander , 2019 BCCA 100 , where the Ontario Court of Appeal and the British Columbia Court of Appeal struck down the six month minimum sentence for indictable possession of child pornography, and R. v. Swaby , 2018 BCCA 416 where the British Columbia Court of Appeal struck down the 90-day mandatory minimum sentence for

summary possession of child pornography. [1] The Supreme Court of Canada dismissed leave to appeal in R. v. Swaby, in 2019 CarswellBC 1752 (SCC) . There has not been a decision dealing with this issue in the superior courts in Manitoba. FACTS OF THE OFFENCE [ 4 ] Mr. Nepon’s online collecting of child pornography images came to the attention of the Integrated Child Exploitation (ICE) Unit of the Winnipeg Police Service. On September 19, 2018, police came to his home and, with his cooperation, seized his computer, hard drive, and other devices.

The police found 626 images of child pornography on the computer hard drive only. The images depicted nude, pre-pubescent girls in sexually provocative poses with their vaginas or anuses exposed. The police estimate that the girls were between the ages of six and 14. [ 5 ] Mr. Nepon was arrested for possession of child pornography. Initially, he was also charged with distribution of child pornography because three of the images had been uploaded to a program called Adobe Lightroom, which is a program used to edit photographic images and allow access by others. There was no evidence that Mr.

Nepon had any intent to share the images however; the Crown stayed the distribution charge and proceeded summarily on the possession charge. [ 6 ] Mr. Nepon was incarcerated for one night at the Winnipeg Remand Centre. [ 7 ] He was then released on stringent bail conditions. The conditions critical to this case are the prohibition on possessing any computer, smart phone or camera. This has been an extremely onerous condition for Mr. Nepon, because he utilizes the camera function on his iPhone or his cameras to zoom in on things such as street signs.

The condition that he not possess or use these adaptive devices has greatly impacted on his ability to function in a sighted world. These items were necessary accommodations in his life as a blind person.

ISSUE [8] The issue involved in this case is what type and length of jail sentence is appropriate. If the appropriate sentence is somethingless than or other than six months in jail, then I must determine whether the six-month mandatory minimum sentence for possession ofchild pornography violates

section 12 of the Charter. To find a violation of

section 12 of the Charter, it must be shown that themandatory minimum, applied to Mr. Nepon or to some reasonable hypothetical offender, would be grossly disproportionate and outragethe standards of decency in Canada and Manitoba.

SECTION 12 OF THE CHARTER [9] Mr. Nepon is challenging the mandatory minimum sentence for possession of child pornography on the basis that it violatessection 12 of the Charter. Although the defence initially challenged the mandatory minimum sentence pursuant to Charter

section 7 aswell, counsel conceded at the hearing that the relevant

section in this case was

section 12. The Crown is not advancing any argumentsattempting to uphold the mandatory minimum sentence under

section 1 of the Charter if I find that it is unconstitutional. [10] Former Chief Justice McLachlin in R. v. Nur, 2015 SCC 15, discussed the peril in legislating mandatory minimum sentences,because they can potentially infringe the fundamental purpose and objectives in sentencing: Mandatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing.They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence,the blameworthiness of the offender, and the harm caused by the crime.

They function as a blunt instrument that may deprive courts ofthe ability to tailor proportionate sentences at the lower end of a sentencing range. They may, in extreme cases, impose unjust sentences,because they shift the focus from the offender during the sentencing process in a way that violates the principle of proportionality. Theymodify the general process of sentencing which relies on the review of all relevant factors in order to reach a proportionate result. Theyaffect the outcome of the sentence by changing the normal judicial process of sentencing. (at para. 44) [11] Charter

section 12 is one of the legal rights found between sections 7 and 13 of the Charter. It provides: Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. [12] Punishment or treatment is cruel and unusual when it is grossly disproportionate to what would be appropriate in thecircumstances and would outrage standards of decency. A sentence must be more than excessive in length to violate

section 12. Section12 is concerned with the effects of punishment and the reasons for the punishment. The effects are balanced against the particularcircumstances of the offence and the offender, and the purpose being sought by imposing the impugned sentence (R. v. Smith, (SCC), [1987] 1 S.C.R. 1045). [13] Thus, solitary confinement has been found to violate

section 12 where it is so excessive as to outrage standards of decency (R.v. Olson (1987), (ON CA), 38 C.C.C. (3d) 534 (Ont.C.A.), aff’d (SCC), [1989] 1 S.C.R. 296). [14] The Supreme Court determined in Smith, the first case where it struck down a mandatory minimum, that

section 12 governs the“quality of the punishment” and “is concerned with the effect that punishment may have on the person on whom it is imposed” (at 1072)(Emphasis added). [15] In determining whether a mandatory minimum sentence is grossly disproportionate for a particular offender, the court is notconcerned with the objective of general deterrence at that stage of the analysis: . . .

Section 12 will only be infringed where the sentence is so unfit having regard to the offence and the offender as to be grosslydisproportionate. In assessing whether a sentence is grossly disproportionate, the court must first consider the gravity of the offence, the personalcharacteristics of the offender and the particular circumstances of the case in order to determine what range of sentences would havebeen appropriate to punish, rehabilitate or deter this particular offender or to protect the public from this particular offender.

The otherpurposes which may be pursued by the imposition of punishment, in particular the deterrence of other potential offenders, are thus notrelevant at this stage of the inquiry. This does not mean that the judge or the legislator can no longer consider general deterrence or otherpenological purposes that go beyond the particular offender in determining a sentence, but only that the resulting sentence must not begrossly disproportionate to what the offender deserves. . . (Smith, at 1073)(Emphasis added.) FRAMEWORK OF ANALYSIS FOR

SECTION 12 [16] In Nur, Chief Justice McLachlin set out the analytical framework to be used when a mandatory minimum sentence ischallenged (at paras. 40–46). The sentencing judge must determine what an appropriate sentence for the offender would be, absent themandatory minimum. The sentencing scheme set out in

section 718 of the Criminal Code is to be followed, as it would be in any othersentencing, to determine the appropriate sentence within the context of the objectives of sentencing, the principle of proportionality andthe other principles set out in the sentencing scheme. The framework is succinctly set out at paragraph 46 of Nur: To recap, a challenge to a mandatory minimum sentencing provision on the ground it constitutes cruel and unusual punishment under s.12 of the Charter involves two steps.

First, the court must determine what constitutes a proportionate sentence for the offence havingregard to the objectives and principles of sentencing in the Criminal Code. Then, the court must ask whether the mandatory minimumrequires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence. If the answer is yes, themandatory minimum provision is inconsistent with s. 12 and will fall unless justified under s. 1 of the Charter. [17] This framework has been applied in subsequent Charter

section 12 challenges to mandatory minimum sentences for the

possession of child pornography. (See Swaby, 2017 BCSC 2020 at paras. 16 – 26; aff’d 2018 BCCA 416 at para. 62; John, at paras. 120and 129–130; and Alexander at para. 31.) [18] Accordingly, before deciding on the constitutionality of the mandatory minimum sentence of six months in jail in this case, Imust determine what a fit and appropriate sentence for Mr. Nepon would be, but for the mandatory minimum.

WHAT WOULD AN APPROPRIATE SENTENCE BE IN THIS CASE? [19] The fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of ajust, peaceful and safe society. This is accomplished by imposing just sanctions that have one or more objectives.

Those objectivesinclude denouncing unlawful conduct and the harm done to victims, deterring the offender and others from committing offences,separating offenders from society where necessary, rehabilitation, reparations for harm done to victims or the community, and promotinga sense of responsibility in offenders and acknowledgement of the harm done to victims or the community. [20] Overarching those objectives is the fundamental principle of sentencing, proportionality.

The sentence imposed must beproportional to the gravity of the offence and the degree of responsibility the offender had when they committed the offence. [21] The Supreme Court held in R. v. Nasogaluak, 2010 SCC 6 that no one sentencing objective trumps the others, and thatsentencing judges must determine which objective or objectives should have the greatest weight: . . . The determination of a "fit" sentence is, subject to some specific statutory rules, an individualized process that requires the judge toweigh the objectives of sentencing in a manner that best reflects the circumstances of the case (R. v.

L. (T.P.), (SCC),[1987] 2 S.C.R. 309 (S.C.C.); M. (C.A.); R. v. Hamilton (2004), (ON CA), 72 O.R. (3d) 1 (Ont. C.A.)). No onesentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatestweight, given the particulars of the case. (at para. 43) [22] There is a specific statutory rule in the case of sentencing child pornography offences.

Section 718.01 of the Criminal Code,which was enacted in 2005, requires that when the court is sentencing an offence that involves the abuse of a child, primaryconsideration must be given to the objectives of denunciation and deterrence. [23] In the recent Supreme Court of Canada decision of R. v. Friesen, 2020 SCC 9, the Court characterized

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

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

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

Que.), at para. 37 ). (at para. 104) (Emphasis added.) [24] The relevant sentencing objectives in this case are denunciation, deterrence, rehabilitation and promoting a sense ofresponsibility in the offender and acknowledgement of the harm done to children and the community by the proliferation of childpornography. [25] Writing for the Court in Friesen, Chief Justice Wagner and Justice Rowe discussed the role that denunciation plays,particularly when dealing with offences against children: Parliament’s choice to prioritize denunciation and deterrence for sexual offences against children is a reasoned response to thewrongfulness of these offences and the serious harm they cause.

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

The protection of childrenis one of the most basic values of Canadian society (L. (J.-J.), at p. 250; Rayo, at para. 104). . . .(at para. 105) Proportionality: The Seriousness of the Offence [26] The possession of child pornography is a serious offence with harmful consequences to children and to society. [27] The Canadian Centre for Child Protection (C3P) no longer uses the language of “child pornography” to refer to what they moreappropriately call “child sexual abuse material.” Actual children are sexually exploited and abused in the creation of “childpornography.” However, because the language of the Criminal Code continues to use the wording “child pornography”, that is thewording I will use in this judgment. [28] The leading case dealing with child pornography is R. v.

Sharpe, 2001 SCC 2, where the constitutionality of the offence ofpossessing child pornography was challenged on the basis that it violated the Charter guarantee of freedom of expression. The SupremeCourt of Canada considered the harm caused by child pornography.

Writing for the six-person majority, Chief Justice McLachlin stated: Parliament’s main purpose in passing the child pornography law was to prevent harm to children by banning the production, distributionand possession of child pornography, and by sending a message to Canadians “that children need to be protected from the harmful effectsof child sexual abuse and exploitation and are not appropriate sexual partners”: House of Commons Debates, 3rd Sess., 34th Parl., vol.XVI, June 3, 1993, at p. 20328. . . .(at para. 34)

[ 29 ] Concurring on the issue of the harm caused by child pornography, Justice L’Heureux-Dubé wrote for the three-person minority: . . . Child pornography is used to fuel the fantasies of paedophiles and is also used to facilitate their exploitation of children. It hinders children’s own self-fulfilment and autonomous development by eroticising their inferior social, economic and sexual status. It reinforces the message that their victimization is acceptable.

In our view, that message denies children their autonomy and dignity. . . (at para. 185) [ 30 ] Children continue to be victimized every time someone views pornographic images of them; their privacy, security of the person, integrity and sexual integrity are violated as images of them proliferate at an unprecedented rate on the internet. The internet has indeed changed the complexion of child pornography and increased the harm caused exponentially. In Friesen , the Supreme Court stated: Technology can make sexual offences against children qualitatively different as well.

For instance, online distribution of films or images depicting sexual violence against a child repeats the original sexual violence, since the child has to live with the knowledge that others may be accessing the films or images, which may resurface in the child’s life at any time ( R. v. Sharpe , 2001 SCC 2 , [2001] 1 S.C.R. 45 (S.C.C.) , at para. 92 ; R. v. J.S., 2018 ONCA 675 , 142 O.R. (3d) 81 (Ont.

C.A.) [hereinafter S. (J.)], at para. 120). (at paras. 47 – 48). [ 31 ] In addition to the substantial physical and psychological harm caused to children in the production of child pornography and the ongoing harm that the presence of abuse materials on the internet causes, the Supreme Court in Sharpe discussed several other forms of harm connected with the possession of child pornography: • Promoting cognitive distortions, “Banalizing the awful and numbing the conscience, exposure to child pornography may make the abnormal seem normal and the immoral seem acceptable. (at paras. 86 and 88 per McLachlan, CJ) • Fueling fantasies that incite offenders (at paras. 86 and 89 per McLachlin, CJ) • Grooming and seducing victims (at paras. 86 and 92 per McLachlin, CJ) • The very existence of child pornography endangers and undermines the integrity and dignity of children: . . . because degrading, dehumanizing, and objectifying depictions of children, by their very existence, undermine the Charter rights of children and other members of society.

Child pornography eroticises the inferior social, economic, and sexual status of children.

It preys on preexisting inequalities. (at para. 158 per L’Heureux-Dubé, J) • Negative attitudes about children are supported and shaped by the existence of child pornography: “. . . child pornography creates a type of attitudinal harm which is manifested in the reinforcement of deleterious tendencies within society.” (at para. 160 per L’Heureux- Dubé, J.) • The possession of child pornography creates and expands the market for it (at para 92, per McLachlin, CJ.) [ 32 ] In this sentencing, the Crown filed a Community Impact Statement (CIS) pursuant to

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

summary of a survey entitled Survivors’ Survey, published by C3P in 2017. The survey is “the only research to date that brings together the collective voices of a number of victims of child sexual abuse material.” One hundred and fifty survivors from all over the world were surveyed. [ 33 ] The report details the common themes of harm experienced by children who have been depicted in child pornography.

The common themes were: 1). the emotional impact of the material, due to its permanence and persistence and the circumstances in which it was produced, the distribution of the material, and the psychological struggles of the victims; 2). the physical impact of being abused; 3). the economic impact; and 4). fears for their security. [ 34 ] One respondent in the Survivors’ Survey stated: . .. .

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

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

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

Some survivors reported that they had been threatened before, during and after the images were created and ordered to “smile, pose and show enjoyment in the images.” (at p. 8) Context is especially important when considering images of children posed in a sexual fashion. Instead of viewing these images as “less

severe”, it is crucial to take a step back and ask questions about the circumstances preceding and following the creation of the imagery. When respondents to the Survivors’ Survey were asked about whether their abuser gave them any directions during the production of the imagery, posing/performing was the most common answer. (at p. 9) [ 38 ] On that theme, the CIS refers to a victim impact statement from the case of R. v. A.M. , 2013 ONSC 6174 at para. 25, where the image was described as “not the most egregious” (a photo of the victim topless, taken by her step-father while she was sleeping).

In her victim impact statement, the victim stated: The year of the offence, I found myself wanting to end my life. I had become a ‘cutter […]. Now I have a psychiatrist and I am taking pills for my nerves; and sleeping pills. I hate myself a lot and feel very guilty, I have no more self-esteem or even self-worth. . . I always feel dirty and am disgusted with myself.

I have major trust issues now. . .(at p. 10) [ 39 ] Many victims reported the emotional impact of knowing how easily their images can proliferate and be shared on the internet: My child sexual abuse imagery is out there for anyone to see, I will forever be taken advantage of. . . Being the adult I am now, my photos are still out there, as long as the internet exists my photos will always be out there. Sites will be taken down but new ones are somehow being put back up. As far as I know there is just no way of permanently deleting these photos. There is no way I can finally be done with abuse.

I have to live my life guarded and can never full trust anyone. (at p. 11) [ 40 ] The majority of victims of child pornography have been diagnosed with psychiatric conditions or illnesses due to the abuse, including post-traumatic stress disorder and dissociative disorders. Victims have suffered hospitalizations, addictions, suicidality and long term disability.

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

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

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

I don’t get to live a normal life where I can take pictures at the beach and feel comfortable. I feel like I am constantly naked, like, I will never have a clear mind because I know somewhere someone is looking at my photos right now. It could be someone from another country or maybe even someone I work with. I am terrified for my life. I constantly have thoughts of someone finding out who I am and trying to hurt me. (p. 17) [ 46 ] In this case, the pornographic material involved still images. Girls were required to pose nude, exposing their genitalia and sometimes anuses. The poses were sexually provocative.

Clearly, someone, presumably an adult, a trusted adult, made these girls pose nude in this fashion. Children’s natural tendency is to dress up rather than disrobe for pictures, and not to pose in sexually provocative ways. Although there is no depiction of sexual activity, at the very least, these girls were sexualized and exploited. The harm is still inherent in the possession of images like these, as is detailed in the CIS. [ 47 ] Most of the girls are anonymous. We do not know who they are, where they live and how old they are now.

But the Crown advised that one of the girls in the collection of 626 images seized from Mr. Nepon is known. The police were able to learn, through international integrated police identification units, that the child was eight years old and living in the United States at the time the image was taken. She was abused by the “photographer” between the years 2004 and 2006 and he manufactured a series of images that he then traded on the internet. The series involving her was large and prominent on the internet. It took the police three years to identify and locate her, in 2009. The abuser was convicted in 2011.

Even after the child was identified, located, and her abuser was convicted, the images of her are still ubiquitous on the internet. Mr. Nepon accessed them in 2018. This example is illustrative of the ongoing and widespread violation that a child who is exploited by being the subject of pornography experiences. [ 48 ] The Manitoba Court of Appeal case of R. v. Basov , 2015 MBCA 22 , sets out the five point classification system used to determine the level of severity of child pornography.

The classification system was adopted in the United Kingdom, and applied in several Manitoba sentencing decisions prior to Basov . The classification system is as follows: (

i) erotic posing with no sexual activity; (ii) sexual activity between children or solo masturbation by a child; (iii) non-penetrative sexual activity between adults and children;

(iv) penetrative sexual activity between children and adults; and (

v) sadism or bestiality [ 49 ] All the child pornography images in this case were at Level 1 on the Basov scale. None of the images involved sexual activity between children or with adults, or more egregious forms of abuse. Accordingly, none of the pornographic images are records of children being sexually assaulted, which the higher classification levels in Basov do portray. [ 50 ] There were no videos, only still images. Proportionality: The Circumstances and Moral Culpability of the Offender [ 51 ] Significant information about Mr.

Nepon’s medical circumstances and background was provided to the Court in the form of expert reports and viva voce evidence from a psychologist specializing in sex offender treatment, Dr. Lawrence Ellerby, and a forensic psychiatrist, Dr. Jeffrey Waldman. [ 52 ] A letter written by Mr. Nepon’s ophthalmologist, Dr. Stephen Brodovsky, was also filed in evidence, confirming that Mr. Nepon was born with microphthalmia, leaving him totally blind in his left eye, without even light perception, and with very limited vision in his right eye.

With the best correction, the vision in his right eye is ten percent, that is, 20/200, with nystagmus and a coloboma. He is legally blind. Mr. Nepon’s vision allows him to see only shapes and outlines, unless he is able to zoom in on an object with a camera or iPhone. Mr. Nepon’s parents and his photography mentor explained his visual functioning in non-medical terms, in the letters of support filed in the sentencing hearing: Parts of Jordan’s eye structure did not develop at all. He cannot see an entire image at once.

He scans the various parts of it and his brain must put it together into an image. and, His eyesight would be like you or I having to look through a drinking straw and to navigate the world on a daily basis. [ 53 ] Mr. Nepon has received services from the Canadian National Institute for the Blind (CNIB) since he was a toddler. Ms. Ann Harry, who has worked in different capacities at the CNIB for 34 years, filed a letter outlining the type of accommodation that is necessary for Mr. Nepon to function: It has always been evident that Jorden’s visual functioning requires ongoing accommodation.

This has ranged from the need to examine things at very close range, using devices such as magnifiers and more recently though accessibility features related to technology. Individuals who have partial vision frequently require assessments related to contrast sensitivity, lighting (too much or too little decreases functioning), etc. to keep them safe and independent in activities of daily living including mobility. [ 54 ] Dr. Ellerby was qualified as an expert witness to testify as a psychologist dealing with sexual crimes, and in particular child pornography and its assessment and treatment. Dr.

Ellerby has been treating sex offenders, including non-contact offenders (that is, people who commit child pornography offences), since the 1980’s. He has provided training to police forces, corrections, and clinicians throughout Canada and internationally. He has testified as an expert witness in this field over twenty times. He has published at least two dozen books, papers and studies in the area. He continues to provide treatment to individual offenders, including Mr. Nepon. [ 55 ] Dr.

Waldman was qualified to testify about forensic psychiatry with a special interest in risk assessment and risk management of sex offenders including offenders committing offences involving child pornography. Dr. Waldman has been practising psychiatry since 2003 and has been a professor of psychiatry since that time as well as a consultant in Forensic Psychiatry at the Health Sciences Centre. He specializes in medicolegal and forensic work. He was the Medical Director of Forensic Psychiatry from 2013 to 2017.

He has been a consulting psychiatrist for Corrections Canada at Stony Mountain Institution and Saskatchewan Penitentiary in Prince Albert. He worked at Headingly Correctional Centre for seven years. He produced court-ordered forensic reports for 15 years between 2003 and 2018. He has also published, taught and won many awards for his research and teaching work. [ 56 ] Mr. Nepon is 35 years of age. He has one adult sister who just graduated from medical school. He lives with his parents, as he has for his entire life, and has been very sheltered and protected throughout his life.

A detailed letter written by his parents provided additional information about his life and how his blindness has impacted on his social, emotional and vocational development. Although he had friendships in elementary school, once he moved into middle school and high school, these social interactions became more difficult and eventually stopped. The doctors who testified stated that even compared to other people with his level of blindness, Mr. Nepon is lacking in skills of independent living. He has a very limited employment history.

He has never dated nor been in a romantic relationship and has had no sexual experience. [ 57 ] He has an extreme fixation with a limited number of interests, those being photography and wrestling. He finished high school, quit university after one year, but subsequently took a photography course at Technical Vocational (Tec-Voc) High School in Winnipeg as an adult and developed his intense interest in photography. Using a camera “opened his eyes” to the world in many ways.

His parents recall that he first used his father’s camera lens at a sporting event, which allowed him to see things he could not otherwise see. He aimed the camera at his mother one day and said, “Mom, this is the first time I’ve ever seen the colour of your eyes.” The vocational photography course led to both paid and volunteer work as a photographer for many years, at sporting and other events.

He volunteered for the annual Cancer Care Challenge for Life, Cancer Care Dragon Boat Race, Chai Folk Dance Ensemble and the “Help Portrait” program where photographers volunteered to take family portraits for Inner City families who otherwise could not afford it. He is quite talented as a photographer, having won several competitions at the Red River Ex. He was just beginning to get more paid work when he was arrested.

[ 58 ] Photography also afforded Mr. Nepon a social life, which otherwise he did not have. He joined the Manitoba Camera Club several years ago and attended weekly meetings. His interest in wrestling and photography developed into the main activities of his vocational and social life, and he was involved in several online and in-person groups, and communicated with people online about wrestling and photography. [ 59 ] Since being charged, he has been unable to participate, due to bail conditions prohibiting the use of a camera. [ 60 ] After Mr. Nepon was charged with this offence, he was assessed by Dr.

Ellerby and commenced sex offender treatment with him. Dr. Ellerby has provided a very comprehensive assessment and treatment report, detailing Mr. Nepon’s initial presentation, the early treatment attempts and difficulty he was having engaging in sex offender treatment because of his undiagnosed ASD, then the treatment after he was diagnosed with ASD and the subsequent success when a different therapeutic approach was taken. It became apparent early in Dr. Ellerby’s clinical assessment of Mr.

Nepon, that he suffered from depression and what the psychologist suspected was undiagnosed ASD. [ 61 ] Consequently, he referred Mr. Nepon to psychiatrist Dr. Waldman, who confirmed the diagnosis of ASD, as well as a Major Depressive Disorder. Dr. Waldman stated that the ASD would have been long-standing. The Major Depressive Disorder was triggered by the fear and stress of the charge, the fear of going to jail and how he would cope with that, and the significant impact that the conditions of his release have had on him. [ 62 ] He has been prohibited from using his camera, iPhone and computer since his arrest.

For Mr. Nepon, the camera and iPhone are necessary adaptive devices that allow him to function in a sighted world. Those prohibitions and the prohibition against using a computer have also resulted in an inability to sleep, a complete loss of his social life, and his vocations/avocations of photography and wrestling. He has experienced very significant symptoms with the depression, including suicidality, sleep loss, pronounced anhedonia, a marked lack of interest, vegetative symptoms of depression, pessimism, and loss of energy. [ 63 ] Dr.

Ellerby stated that although the ASD was diagnosed only recently, it would have long impacted Mr. Nepon’s development and level of functioning. After receiving Dr. Waldman’s assessment and diagnoses, and taking into account Mr. Nepon’s blindness and lack of independence, Dr. Ellerby was able to provide an opinion with respect to Mr. Nepon’s offending behavior. In his report Dr. Ellerby stated that the ASD and depression, was . . . consistent with my clinical impressions, and corroborated evident mental health factors that would have played a role in Mr.

Nepon's development and functioning in understanding the psychologically meaningful factors contributing to his offending behaviour and providing a context for his difficulties engaging in treatment. (at p. 4) [ 64 ] The effect of Mr. Nepon’s congenital blindness and long-standing but undiagnosed ASD on his life cannot be underestimated. A relatively happy, relatively social little boy eventually moved to the shadows and lived a very dependent, isolated, and narrow life. He did not experience any of the usual teenage crushes and romances.

Eventually, his social and physical isolation and emotional and sexual immaturity created negative thoughts and behaviours. The ASD entrenched these thoughts and behaviours. [ 65 ] He started looking at pornography as a teenager. He did not mature emotionally and sexually beyond his teen years. Sometime shortly before he was arrested, he started looking at child pornography. Dr. Ellerby testified about the contributing factors to his offending behaviour, and how Mr.

Nepon in therapy “has done a really good job of articulating that process with his offence pathway.” The work has been distilled into a document that is a product of the therapeutic process and work done by Mr. Nepon to identify what led him to committing the offence. The document was filed as an exhibit in the sentencing.

It is very detailed outline of the historical and situational triggers leading to the feelings, thoughts and behaviours that are part of an unhealthy life cycle and then crime cycle. [ 66 ] While another person may have stopped using child pornography if they learned that it was harmful to the children in the photographs, Mr. Nepon’s ASD interferes with his ability to empathize and understand the emotional and psychological harm to others. In May 2020, after significant therapy with Dr. Ellerby’s office, he was able to describe the change in his ability to understand the harm his offence caused.

He reported to Dr. Waldman without prompting that he now understands the impact of the production of child pornography on its victims and how his possession of the material supports that abuse. This is not something that Mr. Nepon inherently knew, he had to be taught, which is a symptom of his ASD. Dr. Waldman reported that, Mr. Nepon explained that he cannot naturally put himself into the mind of another person and understand how trauma would affect them. He reported that he would need to hear it from someone that was traumatized or learn about it to understand.

He reported that he has been able to learn about it from Dr. Ellerby since the earlier assessment interviews. (May 4, 2020 report, p. 4) [ 67 ] Dr. Waldman described how the ASD contributed to his use of child pornography: Consistent with ASD, Mr. Nepon demonstrates an impairment in “theory of mind.” Theory of mind is an essential capacity for human social interaction as it allows a person to understand how another might perceive an interaction, it allows the individual to put oneself “in another[‘s] shoes.” Mr.

Nepon demonstrates an inability to appreciate other’s perspectives as a result of his ASD, and as such presents as having an impaired ability to demonstrate empathy. (May 4, 2020 report, p. 7) [ 68 ] This offence did not involve any planning, although not surprisingly, did involve the usual secretiveness. He did not encrypt or attempt to disguise his possession of child pornography from the authorities, believing himself to be a small fish and his offence “not that serious” in the world of internet child abuse imagery.

These inaccuracies in his thinking have thankfully been replaced during his therapy with more accurate information about the seriousness of his offence and the harm that all child pornography causes. [ 69 ] Mr. Nepon does not have a criminal record and grew up in a prosocial family. His intense interest in wrestling and photography have actually led him to some social activity and positive contributions in several volunteer organizations. [ 70 ] The Crown argued that there was no evidence of a causal connection between Mr.

Nepon’s diagnosis of ASD and his offending, therefore his moral culpability was not reduced by his diagnosis of mental illness. The Crown relied on the Manitoba Court of

Appeal decisions of R.v. Okemow , 2017 MBCA 59 , R. v. Friesen , 2016 50 and most particularly, R. v. J.E.D. , 2018 MBCA 123 , which bears some similarities to this case. [ 71 ] Neither Dr. Waldman nor Dr. Ellerby testified that Mr. Nepon’s diagnosis of ASD caused him to commit the offence of possession of child pornography. But both doctors testified that the constellation of factors which are underpinned by his blindness and his ASD contributed to his commission of the offence. Both doctors provided extensive and detailed evidence on this point, both in their reports and in their evidence in court. [ 72 ] Dr.

Ellerby stated in his report: Mr. Nepon also presented with an atypical style of communication which indicated challenges in areas of verbal and non-verbal communication and deficits in his social and interpersonal skills. His presentation was indicative of an individual who -- who, despite having intelligence and knowledge in some areas, was overall naïve, immature, lacked insight into himself and his functioning and his life. [ 73 ] Dr.

Ellerby stated that the ASD “would have significantly impacted on his development and level of functioning.” [ 74 ] A similar argument as the Crown is making in this case was raised in the

summary conviction appeal in Swaby . Justice Marchand, the

summary conviction judge, determined that the sentencing judge had not erred in deciding that the offender’s intellectual functioning and mental health disorders contributed to his commission of the offence: It is true that neither psychologist truly explored why Mr. Swaby specifically sought out child pornography to deal with his depression and social isolation, but both explained the connection between Mr. Swaby’s mental health and cognitive issues and his offending. To reiterate, Dr. Bartel’s supplemental report indicated that: (Mr. Swaby’

s) intellectual disability would have likely affected his ability to reason and think through the illegality of what he was doing and the possible negative consequences should he be caught. His psychosis and depression would also have made it more likely for him to isolate himself and seek relief and limited pleasure through pornography use. and Dr. Mordell’s report indicated that: Depression and lower intellectual functioning are both risk factors for committing a sexual offence, including non-contact offences. According to . . . a risk assessment instrument (used by Dr.

Mordell), these factors can lead to impulsive behaviour and be associated with poor coping, judgment, and self-awareness. In Mr. Swaby’s case, such social isolation and excessive time spent on the internet, appear to have been factors contributing to his offence. While the sentencing judge was not entirely happy with the opinions he received on the causal connection, he certainly had an evidence- based foundation to conclude on a balance of probabilities that “Mr.

Swaby’s lower intellectual functioning combined with the presence of severe depression and probable psychotic disorder would have impacted his decision making and judgment and that it contributed to his commission of the offence.” He did not err in doing so. ( Swaby , BCSC at paras. 106 – 107) [ 75 ] The evidence as to the connection between Mr. Nepon’s offending and his psychiatric diagnosis and blindness is more compelling in this case. [ 76 ] The constellation of factors caused by his blindness and autism contributed to his commission of the offence.

His ASD prevented him from appreciating that what he was doing was harmful to children. Only through intense and targeted non-contact sex offender therapy has he come to appreciate the wrongfulness of his conduct. [ 77 ] Other Relevant Sentencing Principles, s. 718.2 Aggravating and mitigating factors (s. 718.2(a)) [ 78 ] A useful list of the main aggravating and mitigating factors considered in child pornography offences was set out by Justice Malloy in R. v. Kwok , CanLII 2942 (ONSC) as follows: Not surprisingly, each case turns on its own particular facts.

However, an analysis of the case law does reveal an emerging consensus on the relevant factors to be taken into account: see, in particular, R. v. Parise , [2002] O.J. No. 2513 (Ont. C.J.) ; R. v. Mallett , [2005] O.J. No. 3868 (Ont. S.C.J.) . Generally speaking, any of the following are considered to be aggravating factors: (

i) a criminal record for similar or related offences; (ii) whether there was also production or distribution of the pornography; (iii) the size of the pornography collection; (iv) the nature of the collection (including the age of the children involved and the relative depravity and violence depicted); (

v) the extent to which the offender is seen as a danger to children (including whether he is a diagnosed pedophile who has acted on his impulses in the past by assaulting children); and (vi) whether the offender has purchased child pornography thereby contributing to the sexual victimization of children for profit as opposed to merely collecting it by free downloads from the Internet. Generally recognized mitigating factors include: (

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

v) whether the offender is willing to submit to treatment and counseling or has already undertaken such treatment; (vi) the existence of a guilty plea; and (vii) the extent to which the offender has already suffered for his crime (for example, in his family, career or community). (at para. 7) Aggravating Factors [ 79 ] None of the factors that are considered aggravating are present in this case. Mr. Nepon does not have a criminal record. He was not also charged with production or distribution. The nature of the collection is relatively-speaking, not aggravating. He is not a pedophile and is not seen as a risk to children. He did not purchase the child pornography.

[ 80 ] The only thing that could be considered aggravating is the size of the collection. There were 626 images. This translates into 626 children being victimized. Mitigating Factors [ 81 ] There are several mitigating factors in Mr. Nepon’s case. [ 82 ] He is otherwise, a positive member of the community.

He is held in high regard in the photographic community, his synagogue and the many cultural, sporting and charitable organizations for which he has contributed years of photographic work, as the several thoughtful and insightful letters of support from his family, the Cantor at Congregation Etz Chayim (and President of Chai Folk Arts Council), and head Photography Instructor at Tec-Voc attest. [ 83 ] He was cooperative throughout with the arresting and seizing officers.

His visual impairment was obvious to the police. [ 84 ] He has pleaded guilty and over the past two years has shown increasing and sincere insight into the offence of possessing child abuse material, and he has expressed real remorse. [ 85 ] He was not only willing to submit to assessment and treatment, he has been extensively assessed both by a psychologist specializing in sex offender treatment and specifically, treatment for non-contact offenders who use child sexual abuse materials, and also a forensic psychiatrist.

He has undergone over one and one half years of sex offender treatment, since February 8, 2019. [ 86 ] He has developed tremendous insight into the crime of possessing child abuse material. Dr. Ellerby states in his report: Mr.

Nepon was also able to recognize and accept that his past minimizations and distortions were inaccurate and developed a good and realistic understanding of the seriousness of seeking out child abuse images and the harm this causes the children abused and exploited though the production, distribution and use of their abuse images. (at p. 7) [ 87 ] He has developed significant insight into his offending behavior and has developed a wellness plan. Because his diagnosis of autism is recent, part of the plan is to learn about the condition.

He is only understanding now for the first time that his inability to see and understand social cues was not just a product of his blindness. He is developing his independence to learn how to use the bus and learn the streets in his neighbourhood. He has a plan to seek employment. He has a plan to become more physically active, including purchasing a Fitbit to motivate more exercise and track his wellness and sleep. [ 88 ] Specific to the offence, he has developed a detailed plan to manage technology in an appropriate way. He will not access images of any children. He will not access any child abuse material.

He reiterates the harm that even possession of this material causes. He will avoid illegal downloads, regardless of the content of the material. He will use only mainstream platforms for entertainment, such as Netflix. He will purchase all software. He will use the library as a resource, instead of always seeking information online. He observes in his wellness plan that while on release, he has discovered the benefits of attending the library and the many resources it provides. Similarly, he will use his camera and photography responsibly.

He will use the camera as a visual aid to zoom in for reading, to be able to see screens for presentations, and for navigation. He will use the camera for work, focusing on nature and adult-oriented subjects, and will not photograph any children or child-oriented events. [ 89 ] Also specific to the offence, his wellness plan includes a detailed plan to focus on healthy sexuality. He has observed that since he has not seen any child pornography over the past two years, he has not had any sexual thoughts, fantasies or arousal about female children or teens.

Should he have any memories or flashbacks about such material, he will recognize that it is taking him down the unhealthy life cycle and he will talk to a trusted person about it. [ 90 ] His plan also includes details about not possessing or using pornography of any kind. Since his arrest, he has not accessed any form of adult pornography, such as in magazines, books and pictures. [ 91 ] He has already suffered from the conditions that were imposed as a part of his release more than any offender I have seen, because of his particular circumstances as a blind person.

Standard release conditions prohibiting access to the internet, cameras and an iPhone have had a disproportionate impact on him. While such conditions have a corollary impact on most offenders, in Mr. Nepon’s case, it eliminated his social life, his work, and his ability to function in a sighted world. He has been unable to listen to books and podcasts on his iPhone. Not only is he not able to read several books a week, which was his practice, he is unable to use the technology to assist in his sleep, so he has become extremely sleep deprived, which is corroborated by Dr. Waldman.

Seizure of his cell phone meant that all his contacts, calendar appointments, and, unique to him, maps and GPS technology, were removed from him. For a nearly totally blind person to navigate safely, maps are essential, as is the ability to make calls when dropped off by HandiTransit at the wrong door or building, which has sometimes occurred. Mr. Nepon has been unable to use any of his usual technology, either a magnifier, camera or iPhone even to read street signs.

He cannot read a street sign without assistance, even if he is standing directly under it. [ 92 ] Being without computer technology has also had a disproportionate impact on Mr. Nepon due to COVID 19. He has not been able to access virtual meetings, and medical and psychological appointments as most people have during this time. [ 93 ] His parents stated the upshot trenchantly in their letter to the court, “From a deterrent perspective, the loss of his vision through these bail conditions have devastated his life.” [ 94 ] If there is a silver lining, Mr. Nepon, has, through the therapeutic work with Dr.

Ellerby and his team, developed other skills and resources that have had the salutary effect of opening his world and increasing his independence, such as using the library and learning additional independent mobility skills. All of the sex offender treatment and life skills development and rehabilitation greatly reduce his risk to reoffend. Parity (s. 718.2(b))

[ 95 ] Subsection 718.2(2) (

b) of the Criminal Code requires that: A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 96 ] There is a fairly wide range of sentences for possession of child pornography, depending on the seriousness of the offence, the moral culpability and circumstances of the offender and the aggravating and mitigating circumstances involved. Typically, they are jail sentences of six to 18 months, including CSO’s as a form of a jail sentence. ( Kwok at paras. 5 – 6) [ 97 ] The cases are all distinguishable.

Kwok involved 2000 images, some involving babies, as well as videos, which is aggravating and more serious than Mr. Nepon’s crime. Also more aggravating were chat room conversations between pedophiles discussing sexual abuse of children and babies. Mr. Kwok was not suffering from any psychiatric illnesses or blindness. He sought treatment with a psychiatrist who had no experience dealing with sexual disorders. He was sentenced to one year in jail. [ 98 ] Similarly, the offender in R. v. Tweedle , 2016 ONCA 983 discussed his interest in abusing children in chat rooms, and possessed videos as well as photographs.

He was sentenced to 20 months in jail, which was upheld on appeal. No other factual information was contained in the appeal decision. [ 99 ] The offender in R. v. Butters , 2014 ONCJ 641 possessed a smaller collection of 49 images, but some of them involved actual sexual abuse being portrayed. In addition, the offender took photographs of nude girls and teenagers using a telephoto lens, which is aggravating. He was initially resistant to treatment, but unlike Mr. Nepon, did not suffer from ASD, which was the cause of the resistance in Mr. Nepon’s case.

The sentencing judge accordingly found his professed naivety and lack of insight to be aggravating circumstances. He was sentenced to eight months in jail. [ 100 ] The material in R. v. Andrukonis , 2012 ABCA 148 involved mainly sadistic sexual abuse of children. The 456 images and 106 videos (at para. 24) were found on the computer by his teenage son. The offender had been sexually abused by an older cousin when he was eight or nine years old, but the forensic report filed with the court stated that he used this to rationalize and justify his criminal behaviour.

He lacked real remorse and insight into his behaviour, and although treatment was recommended, he went to only one counselling session. The Court of Appeal upheld the one year jail sentence. [ 101 ] The Ontario Court of Appeal struck down the mandatory minimum sentence for possession of child pornography in John , on the basis of reasonable hypothetical situations, but upheld the 10-month sentenced imposed on the offender.

It was noted that the offender suffered from serious mental health problems for which he was inadequately treated, and at times was suicidal, and he had made considerable efforts at rehabilitation. There is no other information about the circumstances of the offender in the appellate decision.

The Court upheld the sentence because of the disturbing nature of the content – children as young as two or three years old were anally and vaginally abused with adult penises and sex toys. [ 102 ] The British Columbia Court of Appeal in Alexander similarly struck down the mandatory minimum sentence (at that time, 90 days for

summary offences) but upheld the eight-month sentence imposed on the offender. The size of the collection was staggering: 5700 images and 400 videos. Again, the nature of the material was far more violent and disturbing that in Mr.

Nepon’s case, involving penetrative abuse of very young children. [ 103 ] The British Columbia Court of Appeal held in Alexander and Swaby that jail sentences in child pornography cases are necessary to appropriately emphasize the principles of denunciation and deterrence, barring exceptional cases. ( Alexander at para. 39 ; Swaby at para. 67). [ 104 ] The offender in Swaby was found to be the exceptional case. The gravity of the offence was far more serious than in Mr. Nepon’s case.

The 400 videos and 480 images involved penetrative sexual activity between adults and very young children; the sentencing judge considered some of the material to be sadistic. The offender lived with significant cognitive and intellectual impairments as well as other mental health problems, including auditory hallucinations. Justice Bennett noted that the offender knew that what he was doing was wrong, but not how wrong it was. He equated watching child pornography videos to watching a video of someone breaking their leg. The Court of Appeal accepted the sentencing and

summary conviction judges’ finding that the offender had a “highly reduced level of moral culpability based on his personal circumstances” and that a conditional sentence order with strict conditions would satisfy all the objectives and principles of sentencing, including proportionality. The mandatory minimum was struck down as being grossly disproportionate for the offender and the four month conditional sentence order was upheld. [ 105 ] Subsequent to the British Columbia Court of Appeal striking down mandatory minimums in force at the time in Alexander (90 days for

summary possession of child pornography) and Swaby (six months for indictable possession of child pornography), the Provincial Court of British Columbia heard R. v. Booth , 2019 BCPC 160 , in which the new mandatory minimum of six months for

summary possession of child pornography was impugned, the same mandatory minimum sentence under consideration in this case. There was one video and a handful of images found, although several passcodes and electronic devices. Some of the images involved penetrative abuse of the children. The offender was 71 years of age, married with adult children and otherwise law-abiding. He had significant physical medical conditions.

Judge McQuillan did not believe that the circumstances in the case were “exceptional”, but that a sentence of three or four months, which is below the mandatory minimum, would be fit and appropriate. Judge McQullan found that the offender failed to meet the particularized finding that a sentence of six months would be grossly disproportionate, but found the mandatory minimum grossly disproportionate on the hypothetical used in Swaby , and therefore declined to apply the mandatory minimum. A sentence of three months was imposed. [ 106 ] When R. v.

Walker , (13 March 2020) Vancouver (B.C.P.C.), was heard, the mandatory minimum sentence had already been struck down by superior courts in British Columbia. Judge Meyers imposed a one year CSO, finding that the circumstances of the case were exceptional so as to take the offender’s sentence below the normal jail sentence that should be imposed in these cases. The offender was 84 years of age. He had taken hundreds of photographs of boys with erect penises, some of them engaging in intercourse and masturbating. The photos were all taken in 1972. The offender was naked in some of the photos.

The offender had inveigled himself into the life of one of the boys that he met at the YMCA and abused the boy for nine years. He was convicted of indecent assault in 1982 and was sentenced to one year in jail and two years of probation for that offence. The offender had a myriad of physical

ailments and said he would commit suicide in jail. [107] There is not a single case where the offender was as vulnerable as Mr. Nepon due to the combination of blindness, ASD andMajor Depressive Disorder. The most similar cases are those of Swaby and Walker, which were both found to be “exceptional” cases. A FIT AND APPROPRIATE SENTENCE [108] Notwithstanding the particular circumstances of this offence and this offender, the sentence I impose must express society’scondemnation of the possession of materials that involve the abuse of children.

None of the cases discussed above are so similar thatthey dictate I impose a similar sentence. But the consistent principle in all the cases is that a jail sentence is warranted, unless there areexceptional circumstances. [109] This is a case where the circumstances of the offender make it the exception to the rule. [110] Dr. Ellerby stated in his report that Mr. Nepon “presents as an excellent candidate for a community disposition.” He stated that ithas taken time and significant effort, but Mr.

Nepon has made noteworthy treatment gains and has indicated a desire to continuetreatment and access support services in the community. [111] He cannot receive this level of treatment in jail. In fact, it became clear during the sentencing hearing, that he effectively wouldnot receive any sex offender treatment in jail. The Crown called the Unit Manager of the Assiniboine Treatment Centre (ATC) atHeadingly Correctional Centre, Shirley Carriere, to testify about whether Mr. Nepon could be properly accommodated and receive sexoffender treatment in a provincial jail.

The ATC is known as the part of the jail where sex offender treatment is provided. [112] The ATC sex offender treatment program does not deal with child pornography. [113] It is not currently offering any sex offender programming because of COVID-19. None of the program staff are currentlyproviding any programming; they are all currently working as Correctional Officers. Inmates are given general cognitive behaviouralworkbooks. [114] Dr. Ellerby is familiar with the material and sex offender programing at ATC; it is rudimentary. Although Ms. Carriere testifiedthat she believed that Dr.

Ellerby visits the institution and currently has clients he sees via Skype, Dr. Ellerby testified otherwise; he hasa youth client at Agassiz Youth Centre that he has had a Skype session with, but no adult clients at ATC or Headingley generally. [115] Both Dr. Ellerby and Dr. Waldman testified that Mr. Nepon would be so overwhelmed and distressed by being incarcerated in ajail, that even if it were possible to have sessions with Dr. Ellerby, they would be used solely to deal with Mr. Nepon’s trauma in jail andthere would be no further progress in sex offender treatment. [116] There is not even a guarantee that Mr.

Nepon would be placed at Headingley institution. He could be placed at Brandoninstitution or Milner Ridge institution where there is no sex offender treatment. [117] Mr. Nepon’s risk to reoffend is low. Dr. Ellerby was cautious in this area, because risk assessment tools for child pornographyoffenders, unlike for contact offenders are just emerging. Based on the Child Pornography Offender Risk Tool (CPORT) and its abilityto predict recidivism, Dr. Ellerby was able to advise that Mr.

Nepon’s age, absence of criminal history, compliance with the strictconditions on his bail, and the nature of the content do not meet the identified risk factors. It remains unknown the extent to which hispossession of the pornography, which evidences a sexual “interest” in children, is a risk. It is distinguishable from a “preference.” Mr.Nepon’s sexual preference is for adult women. He is at a very low risk for a contact offence. A further tool to measure risk for non-contact sexual reoffending places Mr. Nepon at Level 1, or, a low risk to re-offend, and Mr.

Nepon is on the low risk end of the Level 1category. [118] Despite the fact that the bail conditions were extremely onerous for Mr. Nepon, and despite the fact that he has been on thoseconditions for over two years, he has not violated any of the conditions. Both Dr. Waldman and Dr. Ellerby commented on hisextremely strict compliance. [119] Although there are no superior court cases in Manitoba that have considered a challenge to the mandatory minimum for thisoffence, there is no question that a sentence of jail is required, absent exceptional circumstances.

The primary sentencing objectives inthis case, because the offence involved the abuse of children, are denunciation and deterrence. A jail sentence is necessary to send themessage that possession of child abuse material violates all norms of Canadian society and undermines the very fabric of our societybecause it harms our children. [120] But a jail sentence can be served outside an actual correctional facility. [121] The Supreme Court of Canada in R. v.

Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61, held that a CSO with punitiveconditions, could provide sufficient deterrence and send a message of denunciation. [122] The British Columbia Court of Appeal also came to the conclusion that a CSO was a fit and appropriate sentence in Swaby: In R. v.

Proulx, 2000 SCC 5 (S.C.C.) at para. 22, the Court concluded that a CSO is “also a punitive sanction capable of achieving theobjectives of denunciation and deterrence”. [Emphasis in original.] I agree with Galati P.C.J. and Marchand J. that absent a mandatory minimum sentence, a sentence to be served in the community understrict conditions would satisfy all of the objectives and principles of sentencing, and would be a proportionate sentence. (at paras. 77 –78) [123] And, the circumstances of this offender are exceptional. I believe a one year CSO followed by two years of probation is the

appropriate sentence for Mr. Nepon. DOES THE MANDATORY MINIMUM VIOLATE

SECTION 12? [ 124 ] Having determined that a one year CSO followed by two years of probation is a fit and appropriate sentence, the next step in the constitutional analysis is to determine whether a sentence served in a correctional facility would result in a grossly disproportionate sentence for Mr. Nepon. [ 125 ]

Section 12 of the Charter protects offenders not only from the length of the sentence, but on the conditions of the sentence. It is essentially concerned with the effect of the sentence. [ 126 ] In the Court of Appeal decision in Swaby , Justice Bennett noted that although recent

section 12 cases had focussed on the duration of mandatory minimum sentences, the origins of

section 12 had to do with the nature or kind of sentences and the effect of the sentence on the offender. As Justice Lamer stated in Smith : The effect of the sentence is often a composite of many factors and is not limited to the quantum or duration of the sentence but includes its nature and the conditions under which it is applied . Sometimes by its length alone or by its very nature will the sentence be grossly disproportionate to the purpose sought .

Sometimes it will be the result of the combination of factors which, when considered in isolation, would not in and of themselves amount to gross disproportionality. For example, twenty years for a first offence against property would be grossly disproportionate, but so would three months of imprisonment if the prison authorities decide it should be served in solitary confinement. ( Smith at 1073, cited in Swaby BCCA at para. 85)(Emphasis added.) [ 127 ] The BCSC found in Swaby that removing the ability to serve a jail sentence in the community, that is, a CSO, was sufficient to be found grossly disproportionate.

It should be noted that at the time, the Criminal Code still allowed an intermittent sentence, as the mandatory minimum was 90 days. [ 128 ] Would it outrage the standards of decency? [ 129 ] In Swaby , Justice Marchand found that after the particularized inquiry, the mandatory minimum of 90 days incarceration violated

section 12 of the Charter . He stated: While the repulsive nature of child pornography may lead to a variety of views amongst informed Canadians, in my view, a clear majority of Canadians who were fully informed about the offence, Mr. Swaby’s personal circumstances, and the penological goals would find a jail sentence of 90 days’ imprisonment, even if served intermittently, to be abhorrent and intolerable. Their standards of decency would be outraged by the imprisonment of a person with Mr. Swaby’s deficits and vulnerabilities.

They would reach this conclusion not out of a sense of compassion but as a result of Mr. Swaby’s reduced level of moral blameworthiness and low risk to re- offend. Their conclusion would be reinforced by the detrimental effect of any type of incarceration on Mr. Swaby. They would understand that, in the exceptional circumstances of Mr. Swaby’s case, denunciation, deterrence and protection of the public would be adequately addressed by Mr. Swaby’s incarceration in the community, his registration on the sex offender’s registry, and the other terms of his sentence. (at para. 149) [ 130 ] In Mr.

Nepon’s case, I heard considerable evidence that jail would be devastating for him. Expert witnesses Dr. Ellerby and Dr. Waldman testified for the better part of a day. [ 131 ] The Crown argued that a finding that Mr. Nepon would fare badly in jail was speculative. In light of the considerable evidence I heard to the contrary, I do not believe it is speculative. [ 132 ] I cannot see how even the specialized units at Headingley institution could accommodate Mr. Nepon’s most basic needs. [ 133 ] Ms.

Carriere testified that the ATC consists of a building housing up to 60 inmates in 15-man dormitories sharing a washroom. Inmates have to navigate to the main building for meals. There has not been a blind inmate at Headingley in the 20 plus years Ms. Carriere has worked there; she was aware of only one visually impaired inmate who had pre-dated her employment there. She testified that she heard that he carried a clock around his neck.

She was not able to say anything else about his functioning or whether he had mental health diagnoses in addition to his visual impairment. [ 134 ] The DNU is for inmates suffering Axis I and II psychiatric illnesses, men with FASD and inmates who meet the legal definition of “vulnerable,” having an IQ less than 70. The inmates are in two-person cells. There are up to 140 inmates in the DNU. The staff have taken a two-day mental health training and there is a psychologist on staff. Ms.

Carriere testified that she did not know if a psychiatrist was on staff. [ 135 ] She testified that some of the inmates in DNU have violent histories, are gang members, have psychiatric and psychological problems and that inmates who are “different” are picked on. There are have been violent instances in both DNU and ATC. She agreed that a blind person would have a difficult time in jail. [ 136 ] Inmates are never allowed iPhones. Even a magnifying glass would have to meet security allowances. [ 137 ] When asked what accommodation could be made for a blind, autistic inmate, Ms.

Carriere testified that the only accommodation necessary might be to house Mr. Nepon on a lower floor. [ 138 ] That does not begin to address the degree of accommodation it would take to safely and humanely house Mr. Nepon in a jail. [ 139 ] Any inmate coming into Headingley would have to quarantine for 10 days at the Winnipeg Remand Centre and then four days at Headingley, in isolation, before being placed in a cell at Headingley. Ms. Carriere testified that quarantined inmates are in protective custody, that is, solitary confinement, for 23½ hours a day for 14 straight days, in a cell.

[ 140 ] Dr. Waldman assessed Mr. Nepon and diagnosed the ASD and Major Depressive Disorder November 4, 2019. By that time, a year had passed since Mr. Nepon had been arrested and charged. He was in significant distress and depressed at the time. His reaction to the charges and removal of adaptive equipment was an inability to cope, distress, and a major depression. He was suicidal, hopeless, his appetite and sleep were significantly disturbed and he was in emotional distress. It is unimaginable to consider what his mental state would be in jail without the basic visual accommodations. [ 141 ] In Dr.

Waldman’s opinion jail would be harmful for Mr. Nepon. He testified that Mr. Nepon, being . . . completely blind in one eye and 90% blind in the other eye, has lost one aspect of sensory perception. If he were to be placed in a jail cell for a prolonged period of time, he would have significant psychological effects regarding sensory deprivation. [ 142 ] He testified that Mr. Nepon also has tinnitus, which is constant ringing in his ears. He is unable to sleep without some form of distraction to help him sleep, such as listening to books on his iPhone.

The absence of any form of intervention for his tinnitus would significantly affect his sleep and would affect his mood and the distress of being in isolation. [ 143 ] Mr. Nepon has such significant deficits in terms of his emotional maturity and social interactions due to the ASD that he has no capacity to interact in a correctional setting, with the level of intimidation in the jail population. Dr.

Waldman stated that “He would be unable to tolerate the level of isolation, the sensory deprivation, sleep disturbance, losses, and then when he does start to interact with other inmates, it will be extremely intimidating, frightening and traumatic for him.” [ 144 ] Dr. Waldman did not believe that the ATC at Headingley would be appropriate for Mr. Nepon: “I cannot imagine any correctional setting being a suitable place for him. He will stand out significantly, be vulnerable and he would not even be able to self- isolate if he felt frightened.” [ 145 ] Dr. Waldman testified that Mr.

Nepon would be “emotionally destroyed” in a correctional institution. [ 146 ] Dr. Ellerby also testified that jail would be destructive to Mr. Nepon. He testified as follows: Q What about his street smarts? A There are none. Q There are none? A There are none. [ 147 ] He stated in his report that: Additionally, this is a case where I believe incarceration would be harmful to Mr. Nepon, his psychological and mental health functioning, and potentially his safety.

He is an extraordinarily vulnerable individual who has few survival skills and is poorly equipped to be confined in custody with a largely anti-social inmate population. His lack of life skills and experiences, his eccentric and challenging personality characteristics (a function of his ASD), his physical fragility, limited vision and his depressed state all put him at risk in a custodial environment. (at p. 16) [ 148 ] A jail sentence to be served in a jail, no matter how short its duration, would be grossly disproportionate for Mr.

Nepon. [ 149 ] As such, I do not have to consider whether the mandatory minimum would violate

section 12 in a hypothetical situation; it fails in this offender’s situation. It is instructive to note parenthetically, that the Supreme Court of Canada in Nur cautioned judges undertaking such an analysis, not to consider “far-fetched” or remotely imaginable examples”: This excludes using personal features to construct the most innocent and sympathetic case imaginable — on that basis almost any mandatory minimum could be argued to violate s. 12 and lawyerly ingenuity would be the only limit to findings of unconstitutionality.

To repeat, the inquiry must be grounded in common sense and experience.(at paras. 75 and 76) [ 150 ] In this case, Mr. Nepon’s personal circumstances are such that were they being tendered as a hypothetical, they may draw criticism for being too “far-fetched”, “remote” or “the most sympathetic case imaginable.” [ 151 ] But they are not far-fetched or remote. These circumstances are Mr. Nepon’s actual, real life circumstances. He is extremely vulnerable due to his blindness, ASD, depression, suicidality and lack of street smarts. Given his vulnerabilities, I am not satisfied Mr.

Nepon would even survive a jail sentence. [ 152 ] Sending Mr. Nepon to jail would be cruel. It is grossly disproportionate. It would outrage the standards of decency of reasonable Canadians and Manitobans to send a person such as Mr. Nepon into a jail. [ 153 ] The mandatory minimum sentence applied to Mr. Nepon does not therefore pass constitutional muster. In his case, the law is unconstitutional and cannot be applied. SENTENCE [ 154 ] The sentence will be a 12-month Conditional Sentence Order (CSO) followed by two years of supervised probation.

The length of the CSO and the probation order are in recognition of the unintentional punitive effect of the release conditions which have been in place for over two years, of the over 18 months of effective sex offender treatment Mr. Nepon has already completed, and his low risk to reoffend.

[ 155 ] The conditions of the CSO have been carefully considered, given Mr. Nepon’s particular and exceptional requirements to use devices that are typically prohibited in these types of cases. In Mr. Nepon’s case, Dr. Ellerby provided suggestions for conditions that are at once protective of children, but still allow Mr. Nepon to function safely and humanely in a sighted world.

The conditions are as follows: • Keep the peace and be of good behaviour; • Appear before the court when required to do so; • Report to a supervisor within two working days and thereafter as required by the supervisor; • Do not leave Manitoba without the written permission of your supervisor or the court; • Notify your supervisor in advance of any change in your name, address, employment or volunteer work; • For the first six months of the CSO there will be an absolute curfew with the following exceptio

[…]