R. v. Pye, 2021 ONCJ 517

ONTARIO COURT OF JUSTICE CITATION: R. v. Pye , 2021 ONCJ 517 DATE: 2021 10 07 COURT FILE No.: 3811 998 20 38106026 BETWEEN: HER MAJESTY THE QUEEN — AND — DEREK PYE PUBLICATION BAN S. 486.4, S.486.4(2.1), S.486.4(3) Before Justice Angela L. McLeod Judicially pretried on January 14, 2021, March 11, 2021 and April 15, 2021; Guilty plea on July 19, 2021; sentencing submissions on September 24, 2021. Reasons for Judgment released on October 7, 2021.

NEIL RILEY........................................................................................... counsel for the Crown JEFFREY FISHER.......................................................................... counsel for the accused McLeod J.: OVERVIEW [ 1 ] This matter was extensively judicially pretried. Ultimately, Mr. Pye entered guilty pleas and was convicted of one count of sexual interference and one count of possession of child pornography. [ 2 ] A presentence report was ordered and was thereafter filed as Exhibit #2. A ‘will state’ dated September 3, 2021, from Sgt. Everson and Sgt.

Knee of the Central North Correctional Center was filed as Exhibit #3a and an affidavit from the defendant was filed as Exhibit #3b . The latter two exhibits relate to lock downs at the jail and the impact upon Mr. Pye.

SUMMARY OF THE FACTS [ 3 ] On August 12, 2020, Mr. Pye entered the public washroom at Tudhope Beach in Orillia. Once inside, he came upon C.S. who was 6 years old and alone. Mr. Pye grabbed the young boy’s genitals. A witness observed the bathroom door to be slightly ajar, heard “I don’t want to do it”, and observed a young male child leave the bathroom closely followed by an adult male. [ 4 ] C.S. left the washroom and returned to his father. He told his father what had just occurred. The father identified the male and followed him all the way back to his residence.

The father spoke with the landlord, who advised that Mr. Derek Pye resided within. [ 5 ] Police were called and Mr. Pye was arrested. A search warrant was garnered for his residence and was executed on August 13, 2020. In his room police located a backpack containing an external hard drive, cell phones, a laptop and a USB stick. [ 6 ] The images contained on the devices totalled 230,000. The children depicted were mostly females between the ages of 2 years

and 10 years of age. There were some images of teenage children. [ 7 ] As part of the judicial pretrial discussions, once a resolution was agreed upon, police were advised that further categorization of the images was not required, beyond the 36,000 that had been reviewed at that point. It is agreed that the collection was in the 10’s of 1000’s, up to the possibility of the full 230,000 images. The exact amount is unknown as the categorization was stopped. [ 8 ] Victim input was canvassed but not forthcoming.

The mother of the young boy simply requests that the defendant not be permitted to return to the park where the incident occurred, as this is a favourite destination for the child. CIRCUMSTANCES OF THE DEFENDANT [ 9 ] Mr. Pye is turning 31 years old this month. He had a “supportive and family-oriented upbringing”. At the age of 19 years, he began to live on his own. His parents have contact with him, express affection for him, but do not support “his lifestyle”. [ 10 ] Mr. Pye’s criminal record was filed as Exhibit #1.

His first convictions were as a youth and were for possession of child pornography, access to child pornography and theft under $5000 in 2008 (he was just shy of his 18 th birthday). His only other conviction is as an adult for a fail to comply with sentence, s.137 of the YCJA in 2011 (he was 21 years of age at the time). He has never received a custodial sentence. [ 11 ] He has never maintained a long term or stable relationship with an intimate partner. He has never had stable or consistent employment.

He appears “to lack positive and significant social influences, only sharing that he has close and positive relationships with his family members, and distant relationships with his limited companions, expressing a difficulty in establishing relationships with others”. [ 12 ] He admitted to the presentence author that he collects erotic materials, including bras, underwear, diapers and sex toys. He admitted to an attraction to pre-pubescent children, particularly of the age range of 6 to 12 years. [ 13 ] Mr. Pye expressed shame and embarrassment for his sexual preferences during his presentence report interview.

During the sentencing hearing he addressed the court directly, and I find that his remorse is genuine . He expressed empathy for the victim and his family. In spite of the comments of the presentence report author and the arresting officer, I find that Mr. Pye has some understanding of the impact of his actions , noting that he has not had any treatment or significant intervention for sexual offending. As per R. v.

Chambers, 2021 ONCA 337 , neither the officer nor the presentence author are trained psychologists and neither should be proffering an opinion in respect of the demeanour of the defendant immediately post arrest, during a police interview or during a presentence report interview. [ 14 ] Mr. Pye has a “lengthy history of substance abuse”. He has been meeting monthly with a psychiatrist while in custody to discuss his overall well being. He is prescribed anti-depressants and “mood boosters” daily.

He has been previously diagnosed with a persistent depressive disorder, unspecified trauma and stressor-related disorder, unspecified paraphilic disorder, alcohol disorder and cannabis use disorder. [ 15 ] Mr. Pye does not have any supports in the community and needs to reside in a shelter upon release. [ 16 ] Mr. Fisher submits that Mr. Pye wants to participate in counselling and is ultimately seeking a referral by probation to the CAMH sexual behaviour clinic which is an intensive program that includes phallometric testing. Mr.

Fisher was advised that this clinic has an approximate 2-3 month waiting list. [ 17 ] Mr. Pye is prepared to take an anti-libido medication. The inference that can be drawn is the Mr. Pye both understands the seriousness of his sexual offending behaviour and the need for significant intervention. PRESENTENCE CUSTODY [ 18 ] Mr. Pye has been in custody since August 12, 2020; as of today’s date, that is a total of 422 days. [ 19 ] The Crown submits that presentence custody should be deducted from the sentence and argues that the credit should be limited to 1.5 to 1, pursuant to R. v.

Summers 2014 SCC 26 . [ 20 ] The defence submits that the presentence custody should be credited at a rate of 2:1, given that Mr. Pye spent 9 of 13 months under some sort of enhanced restrictions, predominantly because of staffing issues at the jail. The defence relies upon R. v. Duncan 2016 ONCA 754 . [ 21 ] Exhibit #3a establishes that Mr. Pye was in full lockdown for great portions of his time while in custody, often for multiple days in a row. [ 22 ] Mr. Pye’s affidavit speaks to the fact that he would sometimes go three days without a shower.

He described the difficult conditions including lack of yard and cramped quarters. He advised that the conditions of lockdown were extremely stressful. [ 23 ] He was the victim of a significant assault in March 2021, attributed to others learning about his charges, and was beaten until unconscious and received a large gash on his head that required three staples to close. POSITION OF THE PARTIES [ 24 ] The Crown proceeded by

summary election. The maximum sentence, for each offence, is 24 months less one day. The Crown seeks 18 months custody for each, consecutive to one another, for a total custodial sentence of 36 months, less presentence custody as noted above.

[25] The Crown further seeks the maximum term of probation, 36 months, a DNA order, a s. 110 order, a s. 161 order for life and aSOIRA order for life. [26] This position is heavily founded upon the assertion that Mr. Pye is a serious risk to the community, his offence pattern has beenescalating, has little to no plan upon release, a history of non compliance with court orders and has not addressed his substance abuseissues and sexual offending behaviour. The Crown submits that Mr. Pye has a complete lack of remorse or insight into his actions. [27] The Crown argues that R. v.

Friesen, 2020 SCC 9 , [2019] 391 C.C.C. (3d) 309, holds that more significant sentencesfor crimes against children are necessary in the evolution toward a better understanding of the impact and the need for condemnation ofthis type of behaviour. [28] The defence seeks a sentence of 18 months on the sexual interference and 9 months consecutive on the possession of childpornography. Should the presentence custody be enhanced beyond 1.5 to 1, then the defence seeks a position of time served. [29] Mr.

Fisher submits (and the Crown did not counter) that there were significant triable issues including clear breach of Mr. Pye’ss. 10(

b) Charter rights. Furthermore, in mitigation is the plea, saving the young child from having to testify, and the early negotiatedplea, saving the investigators from having to categorize a further approximate 200,000 images. Lastly, Mr. Fisher advised that Mr. Pyeconfessed during his interview with police. [30] The parties jointly submit that this court should recommend that the defendant serve any further sentence in an institution thatprovides intensive therapy for sexual offending. ANALYSIS I. PRESENTENCE CUSTODY [31] In R. v.

Marshall, 2021 ONCA 344, Justice Doherty corrected the differences between Summers and Duncan credit and theapplicability of each in determining an appropriate sentence. He wrote, 50 Before I move to Marshall #2, I propose to make some observations about the calculation of the "Duncan " credit. A "Duncan "credit is given on account of particularly difficult and punitive presentence custody conditions. It must be borne in mind the 1.5:1"Summers " credit already takes into account the difficult and restrictive circumstances offenders often encounter during pretrial custody:Summers, at paras. 28-29.

The "Duncan" credit addresses exceptionally punitive conditions which go well beyond the normal restrictionsassociated with pretrial custody. The very restrictive conditions in the jails and the health risks brought on by COVID-19 are a goodexample of the kind of circumstance that may give rise to a "Duncan " credit: R. v. Morgan, 2020 ONCA 279. 51 It is also important to appreciate and maintain the clear distinction between the "Summers " credit and the "Duncan " credit. The"Summers " credit is a deduction from what the trial judge determines to be the appropriate sentence for the offence.

The "Summers "credit is calculated to identify and deduct from the appropriate sentence the amount of the sentence the accused has effectively served byvirtue of the pretrial incarceration. The "Summers " credit is statutorily capped at 1.5:1. It is wrong to think of the "Summers " credit as amitigating factor. It would be equally wrong to deny or limit the "Summers " credit because of some aggravating factor, such as theseriousness of the offence: R. v.

Colt, 2015 BCCA 190. 52 The "Duncan " credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into accountin determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken intoaccount with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the "Summers " credit willbe deducted.

Because the "Duncan " credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of asentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors. 53 Often times, a specific number of days or months are given as "Duncan " credit. While this quantification is not necessarilyinappropriate, it may skew the calculation of the ultimate sentence.

By quantifying the "Duncan " credit, only one of presumably severalrelevant factors, there is a risk the "Duncan " credit will be improperly treated as a deduction from the appropriate sentence in the sameway as the "Summers " credit. If treated in that way, the "Duncan " credit can take on an unwarranted significance in fixing the ultimatesentence imposed: R. v. J.B. (2004), (ON CA), 187 O.A.C. 307 (C.A.).

Arguably, that is what happened in this case,where on the trial judge's calculations, the "Duncan " credit devoured three-quarters of what the trial judge had deemed to be theappropriate sentence but for pretrial custody. [32] In light of the materials filled, including the affidavit of Mr.

Pye, I find that his presentence custody has been “exceptionallypunitive”, beyond the “tough conditions” contemplated in Summers, supra. [33] Following the direction of the ONCA in Marshall, supra, the presentence custody will be credited at a rate of 1.5 to 1; the 422actual days will be enhanced to 633 days presentence custody. II. SEXUAL INTERFERENCE CASE LAW ANDSENTENCING PRINCIPLES [34] R. v.

Friesen 2020 SCC 9 is the leading case in respect of sentencing for sexual offences against children. 42 Protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offencesagainst children in the Criminal Code. Our society is committed to protecting children and ensuring their rights and interests are

respected (Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, at para. 67). AsOtis J.A. stated in R. v. L. (J.-J.) (1998), (QC CA), 126 C.C.C. (3d) 235 (Que. C.A.), [TRANSLATION] "theprotection of children constitute[s] one of the essential and perennial values" of Canadian society (p. 250). Protecting children frombecoming victims of sexual offences is thus vital in a free and democratic society (R. v.

Mills, 2019 SCC 22, at para. 23). 45 We wish to make clear at the outset of our discussion of these sentencing principles that we recognize that criminal justice responsesalone cannot solve the problem of sexual violence against children. Rather, guaranteeing children in Canada a childhood free of sexualviolence requires coordinated action by all levels of government and by civil society across policy domains as diverse as healthcare,education, and child welfare.

Nonetheless, the criminal law in general and sentencing law specifically are important mechanisms thatParliament has chosen to employ to protect children from sexual violence, to hold perpetrators accountable, and to communicate thewrongfulness of sexual violence against children. It is our duty to give Parliament's sentencing initiatives their full effect. 50 To effectively respond to sexual violence against children, sentencing judges need to properly understand the wrongfulness of sexualoffences against children and the profound harm that they cause. Getting the wrongfulness and harmfulness right is important.

As PepallJ.A. recognized in R. v. Stuckless, 2019 ONCA 504, 146 O.R. (3d) 752 ("Stuckless (2019)"), failure to recognize or appreciate theinterests that the legislative scheme of offences protects can result in unreasonable underestimations of the gravity of the offence (paras.120, 122, 130 and 137; see also Marshall, at pp. 219-20). Similarly, it can result in stereotypical reasoning filtering into the sentencingprocess and the consequent misidentification and misapplication of aggravating and mitigating factors (J.

Benedet, "Sentencing forSexual Offences Against Children and Youth: Mandatory Minimums, Proportionality and Unintended Consequences" (2019), 44Queen's L.J. 284, at pp. 288 and 309; M. M. Wright, Judicial Decision Making in Child Sexual Abuse Cases (2007), at pp. xii-xiii and39). Properly understanding the harmfulness will help bring sentencing law into line with society's contemporary understanding of thenature and gravity of sexual violence against children and will ensure that past biases and myths do not filter into the sentencing process(Stone, at para. 239; R. v.

Barton, 2019 SCC 33, at para. 200) 55 These developments are connected to a larger shift, as society has come to understand that the focus of the sexual offences scheme isnot on sexual propriety but rather on wrongful interference with sexual integrity.

As Professor Elaine Craig notes, "This shift fromfocusing on sexual propriety to sexual integrity enables greater emphasis on violations of trust, humiliation, objectification, exploitation,shame, and loss of self-esteem rather than simply, or only, on deprivations of honour, chastity, or bodily integrity (as was more the casewhen the law's concern had a greater focus on sexual propriety)" (Troubling Sex: Towards a Legal Theory of Sexual Integrity (2012), atp. 68). 59 In emphasizing the harmfulness of sexual offences against children, we do not intend to stereotype child victims of sexual violence asforever broken.

To the contrary, it takes great "strength and courage" to survive sexual violence as a child (R. v. J.R.G., [2013] B.C.J. No.1401 (QL) (Prov. Ct.), at para. 26). Frequently, child victims make "valiant and repeated efforts to have someone believe theirallegations" (I. Grant and J. Benedet, "The 'Statutory Rape' Myth: A Case Law Study of Sexual Assaults against Adolescent Girls"(2019), 31 C.J.W.L. 266, at p. 292 ("The 'Statutory Rape' Myth")). Many victims go on to live healthy and meaningful lives withfulfilling and loving relationships.

Offenders cannot rob children of their "strength, compassion, love for others and intelligence" and"resolve to take back their lives" (R. v. Stuckless, 2016 ONCJ 338, at paras. 50 and 53 , rev'd 2019 ONCA 504, 146 O.R. (3d)752) 61 The ripple effects can cause children to experience damage to their other social relationships. Children may lose trust in thecommunities and people they know. They may be reluctant to join new communities, meet new people, make friends in school, orparticipate in school activities (C.-A. Bauman, "The Sentencing of Sexual Offences against Children" (1998), 17 C.R. (5th) 352, at p.355).

This loss of trust is compounded when members of the community take the side of the offender or humiliate and ostracize the child(R. v. Rayo, 2018 QCCA 824, at para. 87 ; R. v. T. (K.), 2008 ONCA 91, 89 O.R. (3d) 99, at paras. 12 and 42). Technology andsocial media can also compound these problems by spreading images and details of the sexual violence throughout a community (see R.v. N.G., 2015 MBCA 81, 323 Man.R. (2d) 73) 62 The Criminal Code recognizes that the harm flowing from an offence is not limited to the direct victim against whom the offence wascommitted.

Instead, the Criminal Code provides that parents, caregivers, and family members of a sexually victimized child may bevictims "in their own right" who are entitled to present a victim impact statement (B. Perrin, Victim Law: The Law of Victims of Crimein Canada (2017), at p. 55; see also Criminal Code, ss. 2 ("victim") and 722). 63 The ripple effects of sexual violence against childrencan make the child's parents, caregivers, and family members secondary victims who also suffer profound harm as a result of theoffence.

Sexual violence can destroy parents and caregivers' trust in friends, family, and social institutions and leave them feelingpowerless and guilty (R. v. C. (S.), 2019 ONCA 199, 145 O.R. (3d) 711, at para. 6; Rayo, at para. 39; D. (D.), at para. 13). The harm toparents' relationship with their children can also be profound. For instance, children can react to the sexual violence by shutting theirparents out of their lives (Rafiq, at para. 40).

Parents and caregivers may also bear the financial, personal, and emotional costs of helpingtheir children recover and cope with emotional and behavioural challenges (see D. (D.), at paras. 11-13). In the words of one mother of achild victim, the sexual violence "has taken many years from my son's life and I know this will hurt me for the rest of my life" (D. (D.),at para. 11). 64 Beyond the harm to families and caregivers, there is broader harm to the communities in which children live and tosociety as a whole.

Some of these costs can be quantified, such as the social problems that sexual violence against children causes, thecosts of state intervention, and the economic impact of medical costs, lost productivity, and treatment for pain and suffering (see Hajar,at para. 68; R. v. Goldfinch, 2019 SCC 38, at para. 37; United Nations, Report of the independent expert for the United Nations study onviolence against children, U.N. Doc. A/61/299, August 29, 2006, at p. 12).

In particular, children who are victims of sexual violence maybe more likely to engage in sexual violence against children themselves when they reach adulthood (D. (D.), at paras. 37-38). Sexualviolence against children can thus fuel a cycle of sexual violence that results in the proliferation and normalization of the violence in agiven community (Standing Senate Committee on Human Rights, The Sexual Exploitation of Children in Canada: the Need for NationalAction, November 2011 (online), at pp. 10, 30 and 41). In short, the costs that cannot be quantified are also profound.

Children are thefuture of our country and our communities. They deserve to have a childhood free of sexual violence (Hajar, at para. 44). When childrenbecome victims of sexual violence, "[s]ociety as a whole is diminished and degraded" (Hajar, at para. 67). 101 Parliament's decision to prioritize denunciation and deterrence for offences that involve the abuse of children by enacting s. 718.01of the Criminal Code confirms the need for courts to impose more severe sanctions for sexual offences against children. In 2005,

Parliament added s. 718.01 to the Criminal Code by enacting Bill C-2. In cases that involve the abuse of a person under the age of 18, s. 718.01 requires the court to give "primary consideration to the objectives of denunciation and deterrence of such conduct" when imposing sentence 107 We are determined to ensure that sentences for sexual offences against children correspond to Parliament's legislative initiatives and the contemporary understanding of the profound harm that sexual violence against children causes. To do so, we wish to provide guidance to courts on three specific points:

(1) Upward departure from prior precedents and sentencing ranges may well be required to impose a proportionate sentence;

(2) Sexual offences against children should generally be punished more severely than sexual offences against adults; and,

(3) Sexual interference with a child should not be treated as less serious than sexual assault of a child. (

a) Upward Departure From Prior Precedents and Sentencing Ranges [ 35 ] The Supreme Court provided guidance on factors for consideration when determining a fit sentence: 121 We also wish to offer some comments on significant factors to determine a fit sentence for sexual offences against children. These comments are neither a checklist nor an exhaustive set of factors. Nor are they intended to displace the specific lists of factors that provincial appellate courts have set out (see, e.g., Sidwell, at para. 53; R. v. A.B., 2015 NLCA 19 , 365 Nfld. & P.E.I.R. 160 , at para. 26 ).

Instead, our aim is to provide guidance on specific factors that require "the articulation of governing and intelligible principles" to promote the uniform application of the law of sentencing (Gardiner, at pp. 397 and 405). (

a) Likelihood to reoffend (

b) Abuse of a position of trust or authority (

c) Duration and frequency (

d) Age of the victim (

e) Degree of physical interference (

f) Victim participation III. SENTENCING PRINCIPLES AND CHILD PORNOGRAPHY CASE LAW SENTENCING PRINCIPLES [ 36 ] The fundamental purpose of sentencing set out in s. 718 of the Criminal Code is to protect society and to contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society by imposing sanctions that have one or more of the following objectives: (

a) denouncing unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) deterring the offender and others from committing crimes; (

c) separating offenders from society where necessary; (

d) assisting in the rehabilitation of the offender; (

e) providing reparations for harm done to the victim or to the community; (

f) promoting a sense of responsibility in the offender, and acknowledging the harm done to victims and the community. [ 37 ] The fundamental principle in sentencing, as set out in s. 718.1 , is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. CHILD PORNOGRAPHY – SENTENCING – GENERAL CONSIDERATIONS [ 38 ] Neither counsel provided any caselaw to support their respective positions. [ 39 ] I have reviewed a number of sentencing decisions. [ 40 ] The seminal case in Ontario is R. v. Inksetter, 2018 ONCA 474 .

Associate Chief Justice Hoy wrote: 22 Child pornography is a pervasive social problem that affects the global community and its children. In R. v. Sharpe, 2001 SCC 2 , [2001] 1 S.C.R. 45 (S.C.C.) , the Supreme Court described how possession of child pornography harms children. As Fraser C.J.A. wrote in R. v. Andrukonis , 2012 ABCA 148 (Alta.C.A.), at para. 29 , “possession of child pornography is itself child sexual abuse.” The children depicted in pornographic images are re-victimized each time the images are viewed.

In amassing, viewing, and making available this vast and terrible collection to others, the respondent participated in the abuse of thousands of children. [ 41 ] In R. v. Rytel, 2019 ONSC 1014 , Justice Harris wrote:

28 …child pornography is the exploitative sexualization of children by adults. It is a deeply disturbing aberration from the natural orderof things. The damage to the children depicted is permanent and profound. Viewers and purchasers like Mr. Rytel fuel the market forproducing this odious material. The victimization of children must be opposed with unremitting purpose. Condemnation through theimposition of harsh sentences is necessary to fight against the evil of child pornography. [42] In R. v.

P.T., 2019 ONCJ 664, Justice Speyer wrote: 25 It has long been recognized that in sentencing adult sexual predators, the paramount objectives are denunciation, both general andspecific deterrence and the separation of the offender from society. Absent exceptional circumstances, these objectives must takeprecedence over other recognized sentencing objectives such as rehabilitation. This approach is required to protect children and to reflectthe long-term damage done to them by offenders. Predators who abuse children to satisfy their own deviant sexual needs must knowthey will pay a heavy price. (see R. v.

D.(D.) (2002), (ON CA), 163 C.C.C. (3d) 471 (Ont. C.A.) at paras. 33-35; R.v. J.S., 2018 ONCA 675 , [2018] O.J. No. 4095 (Ont. C.A.) at para. 55). Similar objectives apply when sentencing offenderswho possess, produce and distribute child pornography: R. v. Inksetter, 2018 ONCA 474 (Ont. C.A.), para. 16. 26 As I stated in R. v. M.M., 2017 ONCJ 733 (Ont. C.J.), the evil at the root of all child pornography offences is the hands-on sexualabuse and sexual exploitation of children by those who produce it.

Child pornography captures this abuse in an electronic image, createsa record of that abuse, and permits the perpetrator to share that abuse with others throughout the world. By downloading these images,the offender also participates in and encourages the existence of a market for these terrible kinds of crimes. Chat-rooms and on-linediscussions provide a forum in which purveyors and consumers of child abuse can exchange their stories and images. These forumsencourage participants to believe that what they are doing is accepted and admired by others.

This perpetuates and compounds theproblem by fuelling the growth in creation and distribution of child pornography. See: R. v. Sharpe (2001), 2001 SCC 2 , 150C.C.C. (3d) 321 (S.C.C.); R. v. Bock, 2010 ONSC 3117 , [2010] O.J. No. 2277 (Ont. S.C.J.), at paragraphs 30 and 31; R. v.Dumais, 2011 ONSC 276 , [2011] O.J. No. 116 (Ont. S.C.J. at para. 13; R. v. Kwok, (ON SC), [2007] O.J.No. 457 (Ont. S.C.J.) at paragraph 50. [43] In Rytell, supra, the defendant was diagnosed with schizophrenia. The Court held that incarceration would be substantially moreonerous for him. He possessed 4000 movies and 10,000 images.

A conditional sentence was imposed. [44] In R. v. Schulz, 2018 ONCA 498, Mr. Schulz was a lawyer, and convicted of one count of possession child pornography. He hadno criminal record. He possessed 45 images. The trial judge imposed a sentence of 45 days intermittent custody. The Court of Appealwas not asked to address that portion of the sentence, rather to focus on the ancillary orders. [45] In R. v. King, 2020 ABPC 219, Mr. King possessed on several electronic devices a collection of child pornography containing1112 images and 79 videos. He also possessed over 500 written child pornography stories. Mr.

King was 40 years of age, and without acriminal record. The Crown sought 30 months incarceration; the defence a CSO. The Court considered Friesen, supra, and wrote: 27 In R. v. Friesen, supra, the Supreme Court of Canada had before it an appeal of a sentence imposed in relation to an offence ofsexual interference with a young child. However, the Court gave general guidance on the subject of sentencing on all sexual offencesinvolving children (paragraph 44).

Indeed, possession of child pornography was one of the offences listed in the Appendix which theCourt created to show that Parliament had increased maximum sentences for sexual offences involving children. 28 In my respectful view, the following comments by the Supreme Court of Canada are particularly relevant to the task before me: 1. "It follows from this discussion that sentences must recognize and reflect both the harm that sexual offences against children cause andthe wrongfulness of sexual violence." (paragraph 74) 2.

"In particular, courts need to take into account the wrongfulness and harmfulness of sexual offences against children when applyingthe proportionality principle. Accurately understanding both factors is key to imposing a proportionate sentence (R. v. Nur, 2015 SCC15, [2015] 1 S.C.R. 773 (S.C.C.), at paras. 43-44). The wrongfulness and the harmfulness impact both the gravity of the offence and thedegree of responsibility of the offender.

Taking the wrongfulness and harmfulness into account will ensure that the proportionalityprinciple serves its function of "ensur[ing] that offenders are held responsible for their actions and that the sentence properly reflects andcondemns their role in the offence and the harm they caused" (R. v. Nasogaluak 2010 SCC 6 , [2010 CarswellAlta 268(S.C.C.)], at para. 42)." (paragraph 75) 3. "Courts must impose sentences that are commensurate with the gravity of sexual offences against children. It is not sufficient forcourts to simply state that sexual offences against children are serious.

The sentence imposed must reflect the normative character of theoffender's actions and the consequential harm to children and their families, caregivers, and communities (see R. v. M. (C.A.) (SCC), [1996 CarswellBC 1000 (S.C.C.)], at para. 80; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90 (S.C.C.), at para.35). We thus offer some guidance on how courts should give effect to the gravity of sexual offences against children.

Specifically, courtsmust recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from theseoffences; and, (3) the actual harm that children suffer as a result of these offences. We emphasize that sexual offences against childrenare inherently wrongful and always put children at risk of serious harm, even as the degree of wrongfulness, the extent to which potentialharm materializes, and actual harm vary from case to case." (paragraph 76)

4. "Maximum sentences help determine the gravity of the offence and thus the proportionate sentence. The gravity of the offenceincludes both subjective gravity, namely the circumstances that surround the commission of the offence, and objective gravity (R. c. M.(L.) 2008 SCC 31 , [2008 CarswellQue 4417 (S.C.C.)], at paras. 24-25).

The maximum sentence the Criminal Code provides foroffences determines objective gravity by indicating the "relative severity of each crime" (M. (C.A.), at para. 36...." (paragraph 96)."Maximum penalties are one of Parliament's principal tools to determine the gravity of the offence...." (paragraph 96). "Accordingly, adecision by Parliament to increase maximum sentences for certain offences shows that Parliament "wanted such offences to be punishedmore harshly" (R. c. Lacasse 2015 SCC 64 , [2015 CarswellQue 11715 (S.C.C.)], at para. 7).

An increase in the maximumsentence should thus be understood as shifting the distribution of proportionate sentences for an offence." (paragraph 97). 5. "Parliament has repeatedly increased sentences for sexual offences against children." (paragraph 98). "These successive increases inmaximum sentences indicate Parliament's determination that sexual offences against children are to be treated as more grave than theyhad been in the past." (paragraph 99). 6.

"The text of s. 718.01 indicates that Parliament intended to focus the attention of sentencing judges on the relative importance ofsentencing objectives for cases involving the abuse of children. The words "primary consideration" in s. 718.01 prescribe a relativeordering of sentencing objectives that is absent from the general list of six objectives in s. 718(

a) through (

f) of the Criminal Code...."(paragraph 102). 7. "Section 718.01 should not be interpreted as limiting sentencing objectives, notably separation from society, which reinforcedeterrence or denunciation. The objective of separation from society is closely related to deterrence and denunciation for sexual offencesagainst children (R. v. Woodward 2011 ONCA 610 , [2011 CarswellOnt 9823 (Ont. C.A.)], at para. 76). When appropriate, asdiscussed below, separation from society can be the means to reinforce and give practical effect to deterrence and denunciation."(paragraph 103). 8.

"Section 718.01 thus qualifies this Court's previous direction that it is for the sentencing judge to determine which sentencingobjective or objectives are to be prioritized. Where Parliament has indicated which sentencing objectives are to receive priority in certaincases, the sentencing judge's discretion is thereby limited, such that it is no longer open to the judge to elevate other sentencingobjectives to an equal or higher priority (R. c. Rayo [2018 CarswellQue 4080 (C.A. Que.)], at paras. 103 and 107-8).

However, while s.718.01 requires that deterrence and denunciation have priority, nonetheless, the sentencing judge retains discretion to accord significantweight to other factors (including rehabilitation and Gladue factors) in exercising discretion in arriving at a fit sentence, in accordancewith the overall principle of proportionality...." (paragraph 104). 9. "The appropriate length and the setting of sentencing ranges or starting points are best left to provincial appellate courts...." (paragraph106).

"Courts can and sometimes need to depart from prior precedents and sentencing ranges in order to impose a proportionate sentence.Sentencing ranges are not "straitjackets" but are instead "historical portraits" (Lacasse, at para. 57). Accordingly, as this Courtrecognized in Lacasse, sentences can and should depart from prior sentencing ranges when Parliament raises the maximum sentence foran offence and when society's understanding of the severity of the harm arising from that offence increases...." (paragraph 108). 10.

"A second reason why upward departure from precedents may be required is that courts' understanding of the gravity andharmfulness of sexual offences against children has deepened, as we have sought to explain above. As Pepall J.A. observed in R. v.Stuckless 2019 ONCA 504 , [2019 CarswellOnt 9580 (Ont. C.A.)], there has been a considerable evolution in Canadian society'sunderstanding of the gravity and harmfulness of these offences (para. 90). Sentences should thus increase "as courts more fullyappreciate the damage that sexual exploitation by adults causes to vulnerable, young victims" (R. v.

Scofield [2019 CarswellBC 24 (B.C.C.A.)], at para. 62). Courts should accordingly be cautious about relying on precedents that may be "dated" and fail to reflect "society'scurrent awareness of the impact of sexual abuse on children" (R. v. Vautour, 2016 BCCA 497 (B.C. C.A.), at para. 52 ). Evenmore recent precedents may be treated with caution if they simply follow more dated precedents that inadequately recognize the gravityof sexual violence against children (R. v. V. (L.) [2016 CarswellSask 388 (Sask. C.A.)], at paras. 100-102).

Courts are thus justified indeparting from precedents in imposing a fit sentence; such precedents should not be seen as imposing a cap on sentences (see Stuckless,at paras. 61-62, per Huscroft J.A.)." (paragraph 110). [46] Justice Fradsham found that the appropriate sentence for Mr.

King would be less than two years, and that a sentence served inthe community would not endanger the safety of the community; however, he ultimately determined that the principles of deterrence anddenunciation would not be met by a CSO. [47] Nonetheless, Justice Fradsham wrote: 36 I wish to be clear: I am not saying that a CSO is never an appropriate sentence for possession of child pornography; such astatement would constitute an error in law. An example of a CSO being imposed for a charge of possession of child pornography, withthe learned sentencing judge specifically considering the decision in R. v.

Friesen, supra, is R. v. Nepon, 2020 MBPC 48 (Man. Prov.Ct.). The sentencing principles to be applied remain constant; it is varying circumstances amongst the cases which cause differing

sentencing outcomes. [ 48 ] In R. v. Nepon , 2020 MBPC 48 , Justice Devine sentenced the defendant to 12 months CSO followed by two years of probation. He was partially blind, was on the Autism Spectrum Disorder scale, and had been assessed to be a low risk to reoffend. [ 49 ] After a thorough review of the applicable caselaw, Justice Devine concluded: 108 Notwithstanding the particular circumstances of this offence and this offender, the sentence I impose must express society's condemnation of the possession of materials that involve the abuse of children.

None of the cases discussed above are so similar that they dictate I impose a similar sentence. But the consistent principle in all the cases is that a jail sentence is warranted, unless there are exceptional circumstances. 109 This is a case where the circumstances of the offender make it the exception to the rule. RANGE OF SENTENCES FOR POSSESSION OF CHILD PORNOGRAPHY [ 50 ] In R. v. Branco , 2019 ONSC 3591 , Justice Stribopoulos reviewed the caselaw regarding the range of sentences for possession of child pornography.

He wrote: 78 I turn then to review the sentencing authorities for possession of child pornography from the past nine years. 79 In R. v. Woolf , 2019 ONCJ 376 (Ont. C.J.) , the offender pled guilty to possessing child pornography. The material consisted of 65 images. Most of the images were of partially undressed or completely naked girls. One of the images was of a prepubescent girl engaged in a sexual act with an adult man. The offender was 66 years of age, had no prior criminal record, and was previously of good character.

He was a college instructor at the time of his arrest, but after being charged, he was suspended from work and took early retirement. The charge led to the end of his marriage. The offender was assessed as a low-risk to reoffend and had undergone treatment. The offender was genuinely remorseful. The court sentenced the offender to 90 days imprisonment, followed by probation. 80 In R. v. Scattolin , 2019 ONCJ 357 (Ont. C.J.) , the offender pled guilty to one count of possession of child pornography. The materials consisted of nearly 8000 images and 64 videos.

The vast majority of the photos were of unclothed girls, aged seven to eight, exposing their genitals to the camera. The videos showed adult males having intercourse with young girls. The offender was 50 years of age, had no prior criminal record, was married, and gainfully employed. Before sentencing, the offender had attended four counselling sessions and was remorseful. The court imposed a sentence of seven months imprisonment, followed by three years of probation. 81 In R. v. Morrison , 2019 ONCJ 262 (Ont.

C.J.) , the offender pled guilty to possessing 11 images of prepubescent boys that met the definition of child pornography. On three separate occasions, the offender shared one of these images on Facebook, which led to his arrest. The offender was 58 years old and had no prior criminal record. He was an alcoholic who sought treatment after his arrest. The court imposed a sentence of 100 days imprisonment, followed by three years of probation. 82 In R. v. Schacter , 2019 ONCJ 154 (Ont. C.J.) , the offender was found guilty of possessing child pornography after a trial.

The material consisted of 148 photos of boys between the ages of eight and 12, in various stages of undress, that were found to meet the definition of child pornography. The offender was 58 years old, had no prior criminal record, and was of previous good character. He had health issues that would make his time in custody difficult. The offender expressed no remorse nor insight.

The court imposed a sentence of six months imprisonment, followed by three years of probation. 83 In Inksetter , the offender amassed one of the "largest and worst" collections of child pornography that the Ottawa Police Service had ever uncovered. It included over 28,052 images and 1,144 videos. The collection likely included even more, but there was so much material that the police stopped cataloguing it with more than 1.2 million images, and 40,000 videos still outstanding for review. Nearly ninety-five percent of the material depicted actual penetration and other explicit sexual activity.

Some of the images included children as young as one year of age, as well as acts of bondage and bestiality. The offender pled guilty, was employed, and posed a low-risk to reoffend. He also demonstrated insight and remorse. The Court of Appeal allowed the Crown's appeal against a sentence of two years less a day imprisonment, concurrent on one count of possessing child pornography and one count of making child pornography available, followed by three years of probation.

It substituted sentences of three and one-half-years imprisonment concurrent on both counts. 84 In John , the Court of Appeal, after declaring unconstitutional the minimum sentence of six months imprisonment on an indictable election, introduced as part of the 2012 amendments, affirmed a sentence of imprisonment for 10 months imposed on an offender convicted after a trial of possessing child pornography. The collection consisted of 50 images and 89 videos of child pornography. It involved children as young as two to four years of age, subject to anal and vaginal penetration with sex toys and adult penises.

The offender was 31 years old at the time of sentencing. He had mental health problems and had been suicidal in the past but was pursuing psychotherapy to address his mental health issues. The offender was employed. He was also remorseful. The horrendous abuse documented weighed heavily in the court's reasoning, as did the extensive efforts of the offender towards his rehabilitation. 85 In R. v. Schulz , 2018 ONCA 598 (Ont. C.A.) , the offender was sentenced after trial for possessing 45 images and 111 videos of child pornography (the decision does not detail the nature of these materials).

He received a sentence of 45 days imprisonment, to be served intermittently, followed by three years of probation. The Court of Appeal dismissed the offender's conviction appeal, as well as his appeal against sentence in which he challenged some of the terms included in the probation order and the s. 161 prohibition order. 86 In R. v. Zhang , 2018 ONCJ 646 (Ont. C.J.) , the offender pled guilty to possessing seven images and one video that constituted child pornography. The video showed the penetration of a seven to nine-year-old girl, with an object and then a penis.

The offender was a 19-year-old first offender who was in Canada attending university and risked deportation. He encountered the material while searching the Internet and decided to download it. The offender was remorseful. The court imposed a sentence of four months imprisonment, followed by probation for 18 months. 87 In R. v. Speers , 2017 ONCJ 922 (Ont. C.J.) , the offender pled guilty to possessing child pornography. His collection consisted of

71 images and four videos, characterized as falling within category four of the scale developed in R. v. Oliver , [2002] EWCA Crim 2766 (Eng. C.A.). This category involves penetrative sexual activity. The sentencing judge acceded to a joint submission for six months imprisonment and one year of probation. 88 In R. v. Lysenchuk , 2016 ONSC 1009 (Ont. S.C.J.) , the offender was found guilty of possessing child pornography following a trial. He possessed 5920 images and 588 videos. The offender was 65 years of age and retired. Before his retirement, he had a positive work history.

The offender was a person of previously good character, including an exemplary parent. He posed a low risk to reoffend, was remorseful and open to seeking treatment. The court imposed a sentence of imprisonment for nine months, followed by three years of probation. 89 In R. v. Wang , 2016 ONSC 5610 (Ont. S.C.J.) , the offender was convicted of possession of child pornography following a trial. The collection consisted of 38 images and 5 videos that depicted graphic sex between children and adults. One of the video recordings included simulated rape and bondage.

The offender was 26-years at the time of sentencing, but only 20-years old at the time of the offence. He had no prior criminal record, was employed, and was of previous good character. The offender had good rehabilitative prospects and was willing to take treatment. Six years had passed since the commission of the offences, and the offender had matured in the interim. The court imposed a sentence of imprisonment for nine months, followed by three years of probation. 90 In R. v. Garcia , 2016 ONCJ 550 (Ont. C.J.) , the offender pled guilty to possessing 41,888 images and 630 videos of child pornography.

The collection mainly consisted of pubescent children or children in early adolescence posing naked or partially clothed in a sexually provocative manner. Many of the images and video recordings featured the same children, with multiple images and videos of the same child spliced from a single recording. As a result, the number of files was not reflective of the actual number of children victimized. There were a few depictions of explicit sexual activity. The offender was 29 years old, had no criminal record, a positive work history, and was assessed as a low-risk to reoffend.

The offender was sentenced to eight months imprisonment, followed by two years of probation. 91 In R. v. Covert , [2015] O.J. No. 3488 (Ont. C.J.) , the offender pled guilty to possessing 27 still images and 256 videos of child pornography. Thirty percent of this collection consisted of prepubescent children, including some children as young as five or six years old. Almost half of the material consisted of explicit sexual activity, including vaginal and anal sex, oral sex, and masturbation.

The offender was 58 years of age, had a prior unrelated criminal record, had undergone treatment, and posed a low risk to reoffend. The court sentenced the offender to six months imprisonment, followed by 12 months of probation. 92 In R. v. Butters , 2014 ONCJ 641 (Ont. C.J.) , aff'd on other grounds 2015 ONCA 783 (Ont. C.A.) , the offender was found guilty of two counts of possessing child pornography following a trial. The collection consisted of 49 still images. It mainly involved prepubescent children, and some of the images were sexually explicit.

The offender was 56 years of age and had no prior criminal record. He was a photographer and had personally taken some of the photographs, a seriously aggravating factor. He was assessed as a low risk to reoffend. Although the offender was taking treatment by the time of sentencing, he was reportedly not initially receptive to the idea. The court imposed a sentence of eight months of imprisonment, followed by two years of probation. 93 In R. v. Stoddart , [2014] O.J. No. 2674 (Ont. C.J.) , the offender pled guilty to possessing child pornography that consisted of 1,320 images and 66 videos.

The videos depicted children involved in sexual activity with other children and adults. The offender was previously of good character, had a loving and supportive family and was gainfully employed. He had also been taking counseling to address his deviant sexual interests. The offender was subject to bail conditions that mirrored a s. 161 prohibition order. The court imposed a sentence of six imprisonment and 12 months of probation. 94 In R. v. K. (T.) , [2014] O.J. No. 4155 (Ont. C.J.) , the offender pled guilty to possession of child pornography.

The collection consisted of 600 images and over 700 videos, featuring boys between the ages of six and 12 involved in various sexual acts. The offender was assessed as a low risk to reoffend. He was actively engaged in treatment. The offender received a 90-day sentence of imprisonment, to be served on an intermittent basis, and two years of probation. 95 In R. v. Ward , 2012 ONCA 660 (Ont. C.A.) , the judgment of the Court of Appeal dealt with the constitutionality of accessing subscriber information without a warrant. However, there is some description of the circumstances and the sentence.

The offender was found guilty of accessing and possessing child pornography, consisting of 30,000 images and about 373 videos. He was sentenced to 11 months of imprisonment and two years of probation. Although he initially appealed his sentence, he abandoned that appeal. The Court of Appeal's decision does not include a description of the nature of the materials in the offender's very large collection; nor is the original sentencing decision available through any electronic databases. 96 In R. v. Burke , 2012 ONSC 6997 (Ont. S.C.J.) , aff'd on other grounds 2013 ONCA 424 (Ont.

C.A.) , the offender was found guilty of possession of child pornography. Following an unsuccessful Charter application, he invited a finding of guilt. There were 17 photos and 24 videos. The child pornography involved young girls engaged in explicit sexual acts with adult males. The offender had no prior criminal record and a positive work history. He had also been assessed as posing a low risk to reoffend and was receiving treatment. The court imposed a sentence of six months imprisonment and 18 months of probation. 97 In R. v. Yau , 2011 ONSC 1009 (Ont.

S.C.J.) , the offender was found guilty of possession of child pornography following a trial by jury. He possessed approximately 479 images, 11 Anime drawings, and four videos. Although some of the materials depicted young girls involved in explicit sexual activity, most of the materials consisted of naked prepubescent girls not engaged in sexual activity. The offender, who was 57 years old, had no prior criminal record. He was married and had three adult children.

The sentencing judge concluded that absent credit for time spent in pre-trial detention, the appropriate range of sentence would have been ten months incarceration. 98 In R. v. Dumais , 2011 ONSC 276 (Ont. S.C.J.) , the offender pled guilty to possession of child pornography. The collection consisted of 170 images and 44 videos depicting young females involved in explicit sexual acts. The offender had no prior criminal record and a positive work history as a school teacher, a position he lost as a result of being charged. He was assessed as a low risk to reoffend and was taking treatment.

The court imposed a sentence of imprisonment for nine months followed by one year of probation.

99 In R. v. Nisbet, [2010] O.J. No. 6258 (Ont. S.C.J.), aff'd 2011 ONCA 26 (Ont. C.A.), the offender pled guilty to possessing childpornography. There were 28 images and 43 videos. The materials involved children between the ages of four and 14 engaged in varioussex acts with other children and adults. The court imposed a sentence of six months imprisonment, followed by 18 months of probation. 100 In R. v. Hutchings, 2010 ONCJ 214 (Ont. C.J.), the offender pled guilty to possessing 62 images of child pornography involvingchildren ranging in ages from toddlers to teens.

Many of the photos depicted children engaged in explicit sexual activity. The offenderwas 41 years old and had no prior criminal record. He came from a loving and supportive family. The offender lost his job because of his arrest. The offender had begun treatment. The court imposed a sentence of 4 1/2 months imprisonment, followed by three years ofprobation. 101 This review of the case law demonstrates that the range of sentences varies widely, from intermittent sentences at the low end, to penitentiary sentences as long as 3 1/2 years at the upper end.

Ultimately, with the exception of some outliers, where a particular casefalls within the overall range of sentences is a function of its specific aggravating and mitigating factors. 105 The offenders in three of these cases pled guilty, evidencing their remorse. Although Mr. Branco pled not guilty, for reasonsalready explained, despite proceeding to trial, I am also satisfied that he too is genuinely remorseful. 106 Importantly, in three of these cases, the offenders had been assessed as posing a low-risk to re-offend and were takingcounselling.

Such assessments, along with upfront counselling, are significant mitigating factors not present in this case. [51] In R. v. Cayabyab, 2019 ONCJ 772, Justice O’Donnell wrote: 33 As I noted earlier, the imposition of a sentence of real jail is almost a given in cases of possession of child pornography. This is acommon thread in the authorities, including the decisions of the Court of Appeal for Ontario in cases such as R. v. Inksetter, 2018 ONCA474 (Ont. C.A.) and R. v. John, 2018 ONCA 702 (Ont. C.A.). The British Columbia Court of Appeal in R. v.

Swaby, supra, at paragraph96, noted that, "incarceration is almost always the inevitable sentence for such offences...", but went on to note that there would besituations where real imprisonment would be entirely unfit as a sentence for such an offence. 34 It is, however, also a given that even where general deterrence and denunciation are primary considerations, sentencing must bespecific to the offender and the offence. This concept of proportionality is the cardinal principle of sentencing and all otherconsiderations, however important, are subordinate to it.

That is not to say that sentences imposed for "comparable" offences by"comparable" offenders are irrelevant; to the contrary they are very important factors for a sentencing judge to consider, especially thosethat come from appellate courts. The same is true with respect to general sentencing principles and their application to specific types ofoffences. The questions, however, are often (

a) to what extent either the offence or the offender is truly comparable from one case to thenext, and, (

b) to what extent the objectives of sentencing should be weighted in a particular case and how the tools of sentence canaddress those objectives in each instance. 35 The seriousness of Mr. Cayabyab's offence cannot be gainsaid. Within the spectrum of child pornography offences, however, thepresent offence ranks towards the very low end given the number of images and videos, the mental health issues and the uniquecircumstances leading to Mr. Cayabyab's apprehension. I consider the factors and the thoughtful and balanced analysis set out by MolloyJ. in R. v. Kwok (ON SC), [2007 CarswellOnt 671 (Ont.

S.C.J.)], , to have aged well, although therange of sentence has trended higher since that time. In the present case, the six still images involve female children around the ages ofeight to ten years old, five of them wearing underwear but with the vaginal area as the focus of all of the pictures. The videos are offemale children aged six to twelve years old engaged in various sexual acts short of intercourse. There is no element of bondage orviolence such as would take these images and videos to the extreme end of the range of seriousness, but the youth of the various victimsis definitely troubling.

The unusually small number of images and videos, by contrast, places the seriousness of the offence towards thelower end of the range for offences of this nature. 36 By way of a single comparison, Mr. Cayabyab's mental health issues and commitment to treatment appear to be somewhat in linewith the personal circumstances of the defendant in R. v. John, supra. It is there, however, that the similarities end. Mr. John had almostten times as many images/videos in his collection, with some involving children even younger than those in Mr. Cayabyab's collectionand with more egregious sexual abuse involved. Mr.

John had a trial and an appeal; Mr. Cayabyab pleaded guilty. The fact that Mr.Cayabyab not only pleaded guilty, but that he would never have come to the attention of the police if he had not turned himself in is aconsideration of tremendous importance in the determination of sentence. There could no clearer manifestation of remorse or of thediminished future risk in this case. It is clear that he is taking these charges and his mental health treatment regimen seriously and that hehas done so reliably in the two years since his arrest. 37 I am satisfied based on all of the material before me, including the St.

Joseph's forensic psychiatry report and the letter from thepsychiatrist who has cared for Mr. Cayabyab since his self-reporting to the police, that while Mr.

Cayabyab's mental health illness doesnot exempt him from criminal liability, that same mental illness was a material contributing factor to the commission of the offence andis a relevant factor on sentence. 38 I have concluded that the present case is one of those extremely rare cases in which a sentence other than real jail can adequatelyrespond to all of the relevant objectives of sentencing including denunciation and general deterrence insofar as the overall fact situation isatypical. The Criminal Code says that jail should be used only when necessary and to the extent necessary. It is not necessary here.

Theneed for specific deterrence is very low in the present case and the objectives of rehabilitation and reparations can more fully be achievedby a conditional sentence than by a carceral sentence. A conditional sentence of sufficient length, combined with the maximum period ofprobation and a substantial amount of community service will best serve the needs of continued monitored rehabilitation and reparations,while containing a significant, measured and fact-specific punitive component. A conditional sentence for Mr. Cayabyab would notendanger the safety of the community.

A sentence of real jail for him would, in these circumstances, be counterproductive and likelyinconsistent with the objective of creating a safe society. 39 I have concluded that the appropriate sentence for Mr. Cayabyab is a twelve month conditional sentence, nine months of which

will be served under house arrest with the balance served on an 8 p.m. to 7 a.m. curfew, the whole monitored by electronic supervision. He will thereafter be placed on probation for three years, including a requirement that he perform one hundred hours of community service. CONCLUSION [ 52 ] A joint submission of 18 months (540 days) custody is proposed for the sexual interference count. Given the very young age of the child, his enhanced vulnerability being in a public bathroom, the risk of reoffending and the prior criminal record, the joint submission is appropriate and accepted.

However, Duncan credit is to be applied and as such the sentence will be 390 days of custody less 195 actual days of presentence custody enhanced to 390 days, plus ancillary orders noted below. In essence, a suspended sentence plus ancillary orders. [ 53 ] The collection of child pornography images is not small, in fact it could be rather large. Mr. Pye is to be given credit for an early resolution, saving not only the child from testifying, but in respect of this count, has save the investigators from having to continue categorizing the vast majority of the images.

This works to hopefully minimize the trauma of the reviewers, but also reduces the impact upon the children depicted in the images. Every time anyone views those images, the children depicted within are revictimized.

As indicated in the judicial pretrial discussions, it is my intention to give considerable consideration of this factor. [ 54 ] The appropriate sentence is 365 days less presentence custody of 227 actual days enhanced to 341 days, leaving 24 days to serve, plus ancillary orders noted below. [ 55 ] On both counts, concurrent to one another, probation for 36 months, a DNA order, a s. 161 order for life and a SOIRA order for life. A s. 110 order is ordered in respect of the sexual interference count only, for 10 years. An order for the forfeiture of the items seized containing the images will be made.

Released: October 7, 2021 Signed: Justice Angela L. McLeod