R. v. Hawes, 2021 ONCJ 40

ONTARIO COURT OF JUSTICE CITATION: R. v. Hawes , 2021 ONCJ 40 DATE: 2021 01 21 COURT FILE No.: 3821-998-20-38200778-00 BETWEEN: HER MAJESTY THE QUEEN — AND — GERRY HAWES Before Justice Angela L.

McLeod Heard on JANUARY 5, 2021 Reasons for Judgment released on JANUARY 21, 2021 RAYMOND WILLIAMS....................................................................... counsel for the Crown MITCHELL EISEN............................................................................ counsel for the accused McLeod J.: OVERVIEW [ 1 ] This matter was judicial pretried on October 5, 2020. [ 2 ] A guilty plea was entered on January 5, 2021, specifically to count two of the information, which reads: Gerry Hawes between the 3 rd day of March in the year 2020 and the 2nd day of May in the year 2020 at the City of Orillia in the said Region, did access child pornography contrary to

Section 163.1(4.1) of the Criminal Code FACTS [ 3 ] On December 24, 2019, Microsoft Operations believed that child pornography had been uploaded the previous day to cloud base storage from an IP address geo-located in Orillia. This information was turned over to the Ontario Provincial Police. [ 4 ] On March 5, 2020, a production order was granted for the IP address assigned to Gerry Hawes, at 5 Edna Street in the City of Orillia. [ 5 ] On April 28, 2020, a search warrant was executed at Mr. Hawes’ residence. Mr. Hawes was present. A laptop was seized. [ 6 ] The laptop was analyzed.

A Microsoft One Drive account was assigned to Mr. Hawes. One hundred and seven images were identified; 92 were unique and were classified as child pornography. Seventy-five of those images were located in an accessible web browser cache. [ 7 ] The images were of children between the ages of 10 years and 17 years of age. The images were described as “minimal and moderate intrusiveness, with a primary focus on vaginal or anal images”, exemplified as “one child was seen holding the erect penis of an adult male; one child was seen holding a massage device against the erect penis of an adult male.”

[8] A computer cache automatically saves images viewed. Microsoft One Drive has a default setting for automatic upload to cloudstorage. [9] Mr. Hawes acknowledged that he accessed the images. The analyst could not determine if the images were intentionallydownloaded or saved by Mr. Hawes. CIRCUMSTANCES OF THE OFFENDER [10] Mr. Hawes is 59 years old. He has been married to his husband for 5 years. He has a university education. [11] Mr. Hawes has worked for the last 11 years as a political advisor, for the Ministry of Sports and Tourism, for the Province ofOntario.

He was put on leave when the charges came to light. After his plea, but before this sentencing, he was terminated. [12] Mr. Hawes is generally of good physical health. He was diagnosed with major depression some 2-3 years ago, was prescribed ananti-depressant and took some counselling. He was referred to a psychiatrist and is currently under the care of Dr. M. Rodway-Normanof The Brain Health Centre. He has been under-going treatment since August 2020 (see exhibits #1 and #2). The treatment consists ofanti-depressants, sleeping pills and counselling. [13] Between 2018 and 2020, Mr.

Hawes faced several major stressors in life; the loss of his mother, a family dog, a family friend. He ran for public office and engaged in a campaign for election. [14] Mr. Hawes’ arrest and charges were covered by the media. His political life and connections were fodder for public scrutiny. Mr. Hawes contacted his friends, family and colleagues in advance of the media’s publishing of his story. [15] By way of collateral consequences, Mr. Hawes has lost his employment, and potentially his ancestral, family home (noting thathe would maintain his condo in the Toronto area nonetheless). He will lose his pension.

Any future political aspirations or involvementare thwarted. His extensive volunteering is over. His personal bank sent him a letter advising that they would no longer provide himwith services. His personal reputation is “in tatters”. [16] Mr. Hawes spoke directly to the court and expressed “profound shame and remorse for accessing images that exploit children. Iunderstand that it perpetuates the exploitation of children. I apologize to those children and to those who placed their faith in me,including the community. I will spend the rest of my life trying to restore their faith”. [17] Mr.

Hawes has no prior criminal record or antecedents. AGGRAVATING AND MITIGATING FACTS (see R. v. Kwok, (ON SC), [2007] OJ No 457) [18] I find the following to be mitigating facts:

(1) The plea of guilt;

(2) The earliness of that plea;

(3) The lack of prior criminal antecedents, which is enhanced by the defendant’s age;

(4) The low number of images accessed;

(5) The otherwise good character and community involvement of the defendant;

(6) Mr. Hawes’ mental health issues, subsequent and on-going treatment for same;

(7) Mr. Hawes’ genuine expression of remorse;

(8) Mr. Hawes’ expression of insight into the damage caused by child pornography;

(9) The images accessed were limited to images and not videos;

(10) The collateral consequences suffered by Mr. Hawes. [19] I do not find there to be any aggravating facts for consideration: [20] I find the following to be neutral facts: 1) The analyst determined the images to be of minimum or moderate intrusiveness, (see P.T. supra); 2) The age of the victims in the images were between the ages of 10-17 years, (see P.T. supra); 3) The images were accessed on only one device; 4) The accused position in the community. In spite of the Crown’s submission that Mr.

Hawes ‘ought to have known better’, hewas not in a position of trust, in so far as any children or any service provided to children specifically. 5) The group of reference letters (exhibit #3). While the letters do establish general support for the defendant, I find that theysimply do not address the seriousness of the conduct plead to. Additionally, the letters serve only to establish that even good people cando bad things, and that what one does behind closed doors is often unknown to those outside.

POSITION OF THE PARTIES [ 21 ] The Crown submits that the appropriate sentence is one of 90 days’ incarceration, in a ‘real jail’. The Crown is opposed to a conditional sentence. [ 22 ] The Crown submits that it is a “rare case for a conditional sentence to be appropriate for child pornography”. The Crown submits that while a CSO is available because the mandatory minimum has been struck down as unconstitutional, this court should nonetheless consider that Parliament intended for a CSO not to be available. [ 23 ] The Crown refers this court to the case of R. v.

Friesen, 2020 SCC 9 , and submits that denunciation and deterrence are the main sentencing principles to be considered. [ 24 ] Ultimately, the Crown submits that a man of Mr. Hawes’ position ought to have known better, and that a ‘real jail’ sentence will send a message to both the offender and those in the community that this type of offence is ‘deplorable and disgusting’. Mr. Hawes’ actions need to be denounced strongly. [ 25 ] The Defence submits that the appropriate sentence is one of a 120-day conditional sentence.

Alternatively, if ‘real jail’ is to be imposed, then a 90-day term of incarceration to be served intermittently, so that Mr. Hawes can seek new employment. [ 26 ] Mr. Eisen highlights the early guilty plea (there was some delay awaiting the forensic report), triable issues regarding the warrant that was executed, the relatively small number of images and the lack of a criminal record. He underscores that this is a plea for accessing child pornography and not for possessing same. [ 27 ] Mr. Eisen further submits that this is a “one off situation”, and that Mr.

Hawes has “stellar support” in the community which “bodes well for rehabilitation”. [ 28 ] Mr. Eisen disagrees that it is only in a rare case that a CSO will be imposed for accessing child pornography. Further to that, he submits that this court should not look to parliament’s intentions, which have subsequently been deemed unconstitutional. He reminds this court that a CSO can serve both the denunciation and deterrence principles and draws attention to the collateral consequences faced by Mr. Hawes as an example of each. [ 29 ] Ultimately, Mr. Eisen concludes that if Mr.

Hawes, with no prior record, low image numbers, reference letters and early guilty plea doesn’t qualify for a CSO, then no defendant ever could. [ 30 ] Ancillary orders of 12-month probation, a SOIRA order for 10 years, a DNA order, a s.161 order for 5 years (defence seeks 3 years) and a s. 164.2 order for forfeiture of the laptop seized, are not contentious.

GOVERNING SENTENCING PRINCIPLES [ 31 ] 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. [ 32 ] 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. THE LAW – ACCESSING CHILD PORNOGRAPHY, S. 163.1(4.1) [ 33 ] S. 163.1(4.1) of the Criminal Code is a hybrid offence. In this case, the Crown proceeded summarily. [ 34 ] The mandatory minimum sentence for the offence of possession of child pornography was declared unconstitutional in R. v.

John, 2018 ONCA 702 . A number of cases since have held that “[t]here is no rational reason in the context of constitutional validity to distinguish between possession of child pornography and accessing child pornography… accessing is no more serious than possession. And so, for the reasons in John , I find the mandatory minimum for accessing also constitutes cruel and unusual punishment and proceed to sentencing unencumbered by the mandatory minimum one-year incarceration”, para. 9, R. v.

Rytel, 2019 ONSC 5541 , as one example. [ 35 ] I adopt that rationale and come to the same conclusion. [ 36 ] 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 makingavailable this vast and terrible collection to others, the respondent participated in the abuse of thousands of children. [37] In Rytel, supra, 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. [38] 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. THE LAW – R. v. FRIESEN, 2020 SCC 9 [39] The case is highlighted below, as per R. v.

King, 2020 ABPC 219. THE LAW – CONDITIONAL SENTENCE [40] A conditional sentence can serve the sentencing principles of deterrence and denunciation. In R. v. Proulx, 2000 SCC 5, thecourt held: 22 The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it isserved in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation,reparations to the victim and community, and the promotion of a sense of responsibility in the offender.

However, it is also a punitivesanction capable of achieving the objectives of denunciation and deterrence. It is this punitive aspect that distinguishes the conditionalsentence from probation, and it is to this issue that I now turn. [41] Furthermore, the court held that a CSO is both a punishment and can be as harsh as incarceration: 41 This is not to say that the conditional sentence is a lenient punishment or that it does not provide significant denunciation anddeterrence, or that a conditional sentence can never be as harsh as incarceration.

As this Court stated in Gladue, supra, at para. 72, in our view a sentence focussed on restorative justice is not necessarily a "lighter" punishment. Some proponents of restorative justiceargue that when it is combined with probationary conditions it may in some circumstances impose a greater burden on the offender thana custodial sentence.

A conditional sentence may be as onerous as, or perhaps even more onerous than, a jail term, particularly in circumstances where theoffender is forced to take responsibility for his or her actions and make reparations to both the victim and the community, all the whileliving in the community under tight controls. 42 Moreover, the conditional sentence is not subject to reduction through parole.

This would seem to follow from s. 112(1) of theCorrections and Conditional Release Act, S.C. 1992, c. 20, which gives the provincial parole board jurisdiction in respect of the parole ofoffenders "serving sentences of imprisonment in provincial correctional facilities" (R. v. W. (J.) (1997), (ON CA), 115C.C.C. (3d) 18 (Ont. C.A.) at p. 33). [42]

Section 742.1 of the Criminal Code sets out the considerations for a CSO. In

summary, there are four criteria to be met: (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and, (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. [43] The first three criteria establish whether a CSO is available; the last whether it is appropriate.

THE LAW – CASE LAW AND PRECEDENTS [44] Neither counsel provided any caselaw to support their respective positions. [45] I have reviewed a number of sentencing decisions. It is difficult to find another case wherein the defendant’s conviction islimited to accessing and not possession of child pornography. It is similarly difficult to find another case with a very low quantum ofimages, guilty plea as opposed a conviction post trial, or an accused without antecedents. [46] 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. [47] 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. [48] 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). [49] 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. [50] 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 differingsentencing outcomes. [51] 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. [52] 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'scondemnation of the possession of materials that involve the abuse of children. None of the cases discussed above are so similar that theydictate 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. CONCLUSION [53] I find that the first three criteria of s. 742.1 have been met. There is no mandatory minimum sentence; the Crown is seeking a

custodial term of only 90 days; the safety of the community can be addressed with conditions of a CSO and a s.161 order and thus is not at risk. [ 54 ] I take judicial notice that were Mr. Hawes to be incarcerated, he would not receive any treatment or counselling in a provincial institution. If he remains in the community, he will continue with his psychiatric treatment.

This serves to address the safety of the community in the long run. [ 55 ] I find that the circumstances of this defendant and of his crime (such a low number of images) are indeed exceptional. [ 56 ] As such, I am persuaded that the principles of sentencing, specifically deterrence and denunciation, can be met by the imposition of a conditional sentence. [ 57 ] However, I do not agree with the defence submission that a sentence of 120 days in the community is sufficient to express the community’s denunciation. [ 58 ] The appropriate sentence is a conditional sentence of 240 days, or 8 months.

This is to be followed by 24 months’ probation, a DNA order, an order for forfeiture and a s. 161 order for 5 years, and a SOIRA order for 10 years. [ 59 ] The terms of the conditional sentence order are as follows:

a) Statutory conditions;

b) Report and thereafter as directed;

c) Reporting ends when counselling is completed;

d) Cooperate with supervisor;

e) Live at a residence as approved of;

f) Not to leave Ontario;

g) House arrest (in or on the property) for the full duration of the sentence; a. Except i. Tuesday and Saturdays, noon to 5pm for necessities; ii. Medical emergencies; iii. School, work, court, religious, legal, medical, dental appts; iv. Assessment, treatment, counselling; v. With prior written permission of supervisor; vi. Carrying out legal obligations of this order; vii. Attendance at a COVID assessment center.

h) Present self at doorway;

i) Not to be in the company of or communicate directly or indirectly with males or females under the age of 16 years;

j) Undertake such counselling as may be directed by the sentence supervisor;

k) Sign releases;

l) Provide proof of attendance, completion etc. [ 60 ] The terms of the probation order are as follows: (

a) Statutory conditions; (

b) Report to probation, by telephone or in person, within 2 business days of your release from custody; (

c) Report for the full duration of the probation; (

d) Participate in such counselling as may be directed by the probation officer; (

e) Sign releases and provide proof of completion of counselling to the probation officer. [ 61 ] The terms of the s. 161 order are as follows, prohibiting Mr. Hawes from:

a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre;

b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;

c) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate; or,

d) using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court. Those conditions are: i. except while at a government site, using a government provided portal; or, ii. for educational purposes; or, iii. for lawful employment purposes; or, iv. for the purpose of communicating with someone over the age of 18 years, the subject matter of which must not relate to children; or, v. except for the purpose of on-line banking. vi.

To access television programming other than any pornographic material. [ 62 ] I want to be clear that I have not considered the current global pandemic, and the resultant concerns about transmission in an institutional setting. That being said, if I am wrong in my analysis above, this issue would certainly have pushed in the direction of a CSO. Released: JANUARY 21, 2021 Signed: Justice Angela L. McLeod