R. v. Snowden, 2021 ONCJ 597

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(3) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(3) , read as follows: 486.4(3) CHILD PORNOGRAPHY —

(1) In proceedings in respect of an offence under

section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. Snowden , 2021 ONCJ 597 DATE: November 22, 2021 Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — THOMAS SNOWDEN Before Justice Newton-Smith Heard on August 19, June 21-25, July 14-15, August 4 and September 28-29, 2021 Reasons for Judgment released on November 22, 2021 J. Stanton............................................................................................. counsel for the Crown R. Sherman................................................... counsel for the accused Thomas Snowden RULING ON DANGEROUS OFFENDER APPLICATION CONTENTS

I. OVERVIEW ... 2 II. THE EVIDENCE .. 3 A. The Predicate Offences . 3 (

i) The Time Line . 4 (ii) Mr. Snowden’s Collection . 4 (iii) The Bensy Chat 6 (iv) The U.K. Apprehension . 7 (

v) The Victim Impact Evidence . 7 B. Mr. Snowden’s Background and Criminal Record . 10 C. The Evidence of Dr. Woodside . 12 D. Mr. Snowden’s Evidence . 15 III. LAW AND ANALYSIS .. 18 A. Overview of the Dangerous Offender Scheme . 18 B. Serious Personal Injury Offence . 20 (

i) The Position of the Parties . 20 (ii) The Case Law .. 20 (iii) Mr. Snowden’s Role in the Bensy Chat 21 (iv) Mr. Snowden’s Actions and the Victim Impact 22 C. Long-Term Offender Status . 24 D. Sentence . 26 NEWTON-SMITH J.: [ 1 ] The Crown has applied to have Mr. Snowden declared a dangerous offender and sentenced to an indeterminate period of detention. [ 2 ] The defence opposes the application and submits that the statutory criteria to have Mr. Snowden declared a dangerous offender have not been met. I. OVERVIEW [ 3 ] On August 19, 2021 Mr.

Snowden entered guilty pleas to 10 counts that included possessing (x1), accessing (x4) and making available (x2) child pornography as well as 3 breaches of recognisance for using the internet and a computer while prohibited. The charges to which he plead guilty covered a period of approximately a year in 2018-2019. [ 4 ] Mr. Snowden is 37 years old. [ 5 ] Mr. Snowden has a criminal record which includes a previous conviction for distributing child pornography and possessing child pornography from 2013. He received concurrent sentences of 90 days intermittent and probation for 2 years.

A section 161(1) order was imposed for 10 years. In 2014 he was convicted of 3 counts of failing to comply with his probation order and received a suspended sentence and probation for 6 months. He was also convicted of mischief under in 2003 and received a suspended sentence and probation for 2 years. That is the extent of Mr. Snowden’s criminal record. [ 6 ] The psychiatric assessment pursuant to s.752.1(1) of the Criminal Code was performed by Dr. Woodside. Dr. Woodside diagnosed Mr.

Snowden with antisocial personality disorder, conduct disorder, alcohol and cannabis use disorder and multiple paraphilic disorders including pedophilic disorder, hebephilia, transvestic disorder and sadomasochistic interests. Mr. Snowden also has a mild to moderate intellectual development disorder and specific learning disorders. [ 7 ] It is a condition precedent to any dangerous offender finding that the offence for which the offender has been convicted is a serious personal injury offence [SPIO] as defined in s.752.

[ 8 ] Once it has been established that the predicate offence is a SPIO, there are several routes by which the Crown can seek to prove that the criteria for a dangerous offender designation has been met. [ 9 ] The route by which the Crown seeks to have Mr.

Snowden declared a dangerous offender is through s.753(1)(a)(i): A pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour. II. THE EVIDENCE A. The Predicate Offences [ 10 ] On August 19, 2021 Mr.

Snowden plead guilty to the following 10 offences: • 1) Make available child pornography s.163.1(3) between May 25, 2018 – Sept.12, 2018 • 2) Access child pornography s.163.1(4.1) between May 25, 2018 – Sept.12, 2018 • 3) Fail to comply with recognisance by accessing the internet s.145(3) between Sept.1, 2019 – Nov.25, 2019 • 4) Possess child pornography s.163.1(4) between Sept.1, 2019 – Nov.25, 2019 • 5) Access child pornography s.163.1(4.1) between Sept.1, 2019 – Nov.25, 2019 • 6) Access child pornography s.163.1(4.1) on November 12, 2018 • 7) Make available child pornography s.163.1(3) on November 12, 2018 • 8) Access child pornography s.163.1(4.1) on May 12, 2019 • 9) Fail to comply with recognisance by accessing the internet s.145(3) between Nov.12, 2018 and May 29, 2019 • 10) Fail to comply with recognisance by accessing a computer s.145(3) between Nov.12, 2018 and May 29, 2019 [ 11 ] At the time that the guilty pleas were entered Mr.

Snowden was aware that the Crown was seeking to have him declared a dangerous offender. The s.752.1 assessment order was subsequently made on the consent of the defence. No submissions were made when the order was requested, and the issue of whether or not the predicate offences met the definition of a SPIO was not raised. (

i) The Time Line [ 12 ] On September 12, 2018 Mr. Snowden was arrested for possession of child pornography x2, accessing child pornography x2 and making available child pornography. He was released on bail 2 days later on September 14, 2018. Counts 1 and 2 relate to these charges. [ 13 ] On May 29, 2019 Mr. Snowden was arrested for charges of failing to comply with his recognisance x2, possession of child pornography x2, accessing child pornography x2 and making available child pornography. He was released on those charges on June 7, 2019.

Counts 3, 4 and 5 relate to these charges. [ 14 ] In October of 2019 one of Mr. Snowden’s sureties revoked his surety. At the end of November of 2019 Mr. Snowden was returned to custody on the surety revocation warrant. In December of 2019 a lengthy bail hearing was conducted. Mr. Snowden testified at the bail hearing. As a result of evidence heard at the bail hearing the police formed grounds to believe that Mr. Snowden had been in possession of child pornography while on bail. A search warrant was executed at his residence on December 2, 2019. Mr.

Snowden was subsequently further charged with possession of child pornography, accessing child pornography and failing to comply with his recognisance. Counts 6-10 relate to these charges. (ii) Mr. Snowden’s Collection [ 15 ] There are approximately 1500 images and 7 videos that meet the definition of child pornography in Mr. Snowden’s collection. Most of the images are of pre-pubescent females. There is a well-known child pornography series contained in the collection called the “Vicki” series. There are also a small number of images depicting babies.

Most of his collection depicts children in sexually explicit acts. [ 16 ] The images and videos contain images of adults touching the children’s vaginal and anal area, images of vaginal and anal penetration and oral sex. There is also an image involving bestiality. [ 17 ] Mr. Snowden engaged in file sharing of child pornography and visited several chat rooms used by people interested in child pornography. Among the search terms used by Mr.

Snowden were “PTHC” which stands for “pre teen hard core”, “kid rape” and terms associated with “rough rape”. [ 18 ] When the 2011 investigation that lead to the 2013 conviction on Mr. Snowden’s record was complete the police retained copies of the hard drives from Mr. Snowden’s devices. During the course of the investigation leading to the predicate offences the police re- examined the content from the 2011 investigation. The content with respect to Mr. Snowden’s 2011 charges was almost the same as

from the searches which lead to the predicate offences. Similar, and sometimes identical, search terms were used and many of the same websites visited. [ 19 ] Some of the chats found on Mr. Snowden’s devices are clearly “fantasy chats”. For example, in one chat Mr. Snowden portrays himself as a young girl being raped. In another he purports to have images of his younger sister. Mr. Snowden does not have a younger sister. [ 20 ] In another chat Mr. Snowden communicates with “Teddy”. During the course of the chat Teddy sends images to Mr. Snowden of young children. The images are not child pornography.

The images appear to be family photographs and police believe “Teddy” to be the mother of several young children. Mr. Snowden discusses wanting to kidnap the children, gives direction to Teddy to sexually assault a child, talks about wanting to rape the baby and asks Teddy if they can meet so that he can have access to the children. Teddy is in the United States and Mr. Snowden offers to drive to Tennessee if Teddy can’t come to Niagara Falls. There is no subsequent chat and no evidence that any meeting ever occurred. [ 21 ] While on bail Mr.

Snowden continued to engage in these chats and access and file share child pornography. [ 22 ] Within Mr. Snowden’s collection were images of 4 children who have been identified and located: an unnamed child in the U.K., Jessy, Jane and Violet [1] . [ 23 ] Through previous investigations unrelated to Mr. Snowden police found over 12 000 images and videos of Jessy on the internet, many of which meet the definition of child pornography. The collection is referred to by police as the “Surfer” series. There is only one image of Jessy contained in Mr.

Snowden’s collection and it does not meet the definition of child pornography. It is a cropped image that shows only Jessy’s bare upper torso. The full image, which is child pornography, was not contained in Mr. Snowden’s collection. [ 24 ] The images found on Mr. Snowden’s devices of Violet, Jane and the unnamed child in the U.K. meet the definition of child pornography. (iii) The Bensy Chat [ 25 ] Several chats between Mr. Snowden, identifying himself as “Steve White”, and an individual going by the name “Bensy” were extracted from Mr.

Snowden’s device. [ 26 ] On February 26, 2019 starting at 10:35 am the following chat occurred: • Steve White: “Hi let’s see daughter” • Bensy: responds by sending an image. • Steve White: “Full body pic ok” • “Ok if I tell u what to do will u do it” • Bensy: “yes when I’m next alone with her” • Steve White: “We’re is she now?” • “Can I see her dresses then” • “Go to her room ok” • “Let’s see her dresses” • “Or full body pic” [ 27 ] The above exchange ends at 10:54 am. Bensy does not respond to Mr. Snowden’s last four messages until two days later when he writes, “Hi”. This time Mr. Snowden does not respond.

Bensy tries again 3 days later on March 3 asking, “You online” but again receives no response. [ 28 ] Several weeks later, on March 17, 2019, Mr. Snowden writes, “Hello you with her” but receives no response until the next day March 18 starting at 5:38 pm when the following exchange occurs: • Bensy: “Not anymore” • Steve White: “Next girl then” • Bensy: “I got some pics and vids of her” • Steve White: “Let’s see” • Bensy: sends 2 images • Steve White: “U said vids not pics” • Bensy: sends video (video shows the buttocks of a young girl wearing distinctive underwear and a man’s hand slapping them)

• Steve White: “Any vid of u fucking her” • “Is there” • “Hello” [ 29 ] That is the end of the Bensy chat. (iv) The U.K. Apprehension [ 30 ] The Bensy chat occurred in February and March of 2019. Police traced the account used by Bensy to an address in the United Kingdom. [ 31 ] DC Dawn Borrill, a police officer based in the U.K., testified in these proceedings. On November 28, 2019 her unit received information about the “Bensy chat”. Officers went to the house connected to “Bensy’s” internet address. They spoke with an adult in the house who was able to identify the child in the image as her daughter.

The child was 10 years old at the time but had a number of cognitive and developmental issues. The child’s 22 year old brother was later arrested and charged. There was no information before the court as to what exactly he was charged with and what the resolution of the matter was. [ 32 ] DC Borrill testified that the images taken of the child were not recent and likely a year or so old. With respect to whether or not the images were taken contemporaneously with the chats, DC Borrill could only say that they were taken some time prior. (

v) The Victim Impact Evidence [ 33 ] In evidence before me were several victim impact statements: one from the mother of “Jessy”, one from the parents of “Violet” and one from “Jane”. The Crown also filed two “Community Impact Statements”: one from the Canadian Centre for Child Protection and one from “Phoenix 11”. Phoenix 11 is a community of 11 survivors of child sexual abuse. [ 34 ] Dr. Randall Green, a clinical psychologist in the United States who assessed Jessy in 2016, testified with respect to the psychological impacts on Jessy of having been exploited as a child and made the victim of child pornography.

Jessy’s Victim Impact [ 35 ] The victim impact statement from Jessy’s mother was written for these proceedings. She was made aware that the image of Jessy contained in Mr.

Snowden’s collection did not meet the definition of child pornography. [ 36 ] In detailing the impact of knowing that images of her son were on the internet Jessy’s mother wrote: Several years ago, I learned that my child had been abused/molested by a man that I knew and trusted, and that man made sexual images and videos of my child…I am completely overwhelmed with guilt, sadness, hate and so much more that I can’t describe or control sometimes…Because images of my son’s sexual abuse are on the internet, it feels like this nightmare will never end…I receive the notices out of the US federal system so I am aware of how many people are caught with my son’s images, just in my own country.

I am so angry and upset every time I hear that any defendant has an image of my child in his possession. Learning that this defendant had an image of my child that is not technically “illegal” doesn’t make me any less upset. I do not know this defendant. The fact that he had a so-called “legal” image of my child is really creepy, and scary. [ 37 ] Dr. Green had examined Jessy in August of 2016 for the purposes of supporting Jessy’s request for restitution in court proceedings in the United States. In 2019 Dr. Green was asked to provide an update to his report for the purposes of these proceedings.

In preparing the update Dr. Green did not contact Jessy or conduct any further interviews. [ 38 ] At the time that Dr. Green interviewed Jessy in 2016 Jessy was 15 years old, but had the emotional maturity of an 11 or 12 year old. Dr. Green described Jessy as an “already impaired individual as a result of psychological diagnoses of autism spectrum disorder and disruptive mood disorder in addition to having learning disabilities…who was suffering from shame, embarrassment and betrayal as a result of the abuse and exploitation”. [ 39 ] It was Dr.

Green’s opinion in 2016 that Jessy was: …at enhanced risk to develop all the types of sequelae to which other survivors of internet sexual exploitation are subject. These include, but are not limited to cognitive and affective difficulties; substance misuse, abuse or dependency; shame, diminished self- esteem; relationship complications and disfunction; hypervigilance or even paranoia; educational difficulties; vocational challenges and anger. [ 40 ] With respect to any harm suffered by Jessy in 2016 as a result of the distribution of his images on the internet Dr.

Green wrote, “While he understood that his images are on the internet, it is my understanding that his mother has shielded him from the knowledge of the extent of internet activity involving his images.” [ 41 ] At these proceedings, Dr. Green testified that it was his: …professional opinion to a reasonable psychological certainty that the information concerning Jessy is sufficient to opine that Jessy will more probably than not suffer psychologically and emotionally as a result of being a victim of the crimes related to the distribution of his images and videos.

Violet’s Victim Impact [ 42 ] Violet’s image appears in a series of child pornography referred to by police as the “At School” series. The victim impact

statement written by Violet’s parents was prepared for use in court proceedings in Canada and the United States. It was not created specifically for these proceedings. [ 43 ] Violet’s parents wrote: Knowing that people all over the world can continue to exploit her is the deepest concern.

We dread the day we must tell her the abuse was videotaped and distributed all over the internet…While out shopping or eating at a restaurant, we are constantly worried and afraid one of these online monsters would recognise her from videos…Once she herself realizes the impact of her abuse there is no telling how she would react. Jane’s Victim Impact [ 44 ] Jane’s image appears in a series of child pornography referred to by police as the “CinderBlockBlue” series. The victim impact statement prepared by Jane was written for use in court proceedings in the United States.

It was not created specifically for these proceedings. [ 45 ] Jane wrote: I have lots of hatred towards my father. If I could, I would hurt him just as much as he hurt me. He is still causing me pain. It is still affecting me. I have a lot of anger…I know there are like hundreds of pictures and videos on several websites…It just makes me like freaked out and I know it is never going to stop….Knowing people are watching what happened gives me a mix of anxiety, sadness, anger and it disgusts me…If it wasn’t out there, I wouldn’t be as fearful as I am now. It scares me.

I’m definitely afraid of running into someone who has seen them and recognises me…Even the thought of it makes me just want to stay inside and not come out and see the outside world…When I first went to school I thought about kids going on the internet and knowing who I am. The Community Impact Statements [ 46 ] The Crown filed a lengthy Community Victim Impact Statement authored by the General Counsel for the Canadian Centre for Child Protection Inc. [“C3P”]. C3P is a registered Canadian charity with a mandate of preventing the sexual exploitation and abuse of children.

The purpose of the statement, as outlined in the

preamble, is to “provide information about the types of harm or loss generally suffered by members of the community as a result of individuals who make, access, possess, make available and/or distribute” child pornography.

The references in the statement to how the online availability of child pornography impacts the community are described as “general in nature”. [ 47 ] The C3P statement discusses the emotional impact on the victims of online child sexual exploitation generally and states that, “specific mental health conditions or struggles expressed by survivors included anxiety, depression, suicidal ideation, and self-harm”.

The appendix references what is, “so far understood to be the effects of having that abuse recorded and potentially distributed online” and lists the “trauma causing factors [of] betrayal, powerlessness, stigmatisation and traumatic sexualization”. [ 48 ] The Crown also filed the “Community Impact Statement of the Phoenix 11”, a self-described community of 11 survivors of child sexual abuse that was recorded, and in many instances, shared on the internet.

In the statement they set out how, “because the sexual assaults we endured were also recorded, and for most of us, shared with other people we can never really be free”. They describe themselves as living their lives in a “perpetual state of vigilance and fear”, worrying that they will be recognised in public from the images. The statement recounts the deep trauma that these 11 individuals must contend with as a result of knowing, or fearing, that their images are online and being viewed. They ask that the “profound social, economic and personal price” paid by survivors like them be considered by the Court. B.

Mr. Snowden’s Background and Criminal Record [ 49 ] The CAS was involved in Mr. Snowden’s life from birth. His mother, who is developmentally delayed and severely physically disabled, was unable to care for him. His step-father and maternal grandparents with whom he resided at times, often sent him to school soiled with urine and feces and without proper food. Mr. Snowden was placed in foster care on several occasions and at the age of 13 became a Crown ward. [ 50 ] Mr. Snowden suffers from learning and intellectual disabilities. His IQ is substantially below average. [ 51 ] At around the age of 12 Mr.

Snowden was sexually assaulted on an ongoing basis by an older male, described as a family friend. Mr. Snowden was orally and anally penetrated and made to cross dress. [ 52 ] When he was 13 Mr. Snowden was placed in a group home after a series of fire setting incidents. While he was in CAS care there were incidents, including sexual incidents, involving other children in the home. [ 53 ] Mr. Snowden has a history of psychiatric treatment and assessment that began in his adolescence. As an adolescent he was treated for anger, self-harm, and fire setting.

He was seen at CAMH in relation to his interest in dressing in women’s clothing. [ 54 ] Mr. Snowden has a youth criminal record which contains convictions relating to misbehaviour and conflicts while he was living in group homes. It is unrelated to the predicate offences. [ 55 ] Mr. Snowden has an adult criminal record which contains 3 sets of entries.

2003-08-29 Mischief under s.430(4) Susp sent & probation 2 yrs 2013-01-09 Poss’n for the purpose child pornography s.163.1(3) 90days intermittent & probation 2 yrs & s.161(1) prohibition 10 yrs Poss’n child pornography s.163.1(4) 90days intermittent conc 2014-09-26 Fail to comply probation x3 Susp sent & probation 6 mos (2 days psc) [ 56 ] The 2003 conviction for mischief related to an incident in a Sears store in March of 2002. Mr. Snowden was seen selecting several female children’s dresses and entering a stall in the children’s change room where he masturbated while wearing the dresses. Mr.

Snowden had just turned 18 the previous month. [ 57 ] As a condition of his probation Mr. Snowden was directed to attend the Sexual Behaviours Clinic at CAMH. He was assessed and diagnosed with fetishistic transvestism as well as being in the borderline mentally retarded range of intelligence. He was subjected to phallometric testing which indicated pedohebephlia. His family did not accept his diagnoses or support his treatment. Mr.

Snowden stopped attending the clinic at the conclusion of his probation and refused to consider treatment with medication. [ 58 ] The 2013 convictions for transmitting and possession of child pornography arose from a police investigation that began in 2011. [ 59 ] The 2011 investigation arose as a result of a chat Mr. Snowden was engaged in wherein he purported to be babysitting an 8 year old girl. Mr. Snowden told the person to whom he was chatting that he wanted to undress the girl, Sarah, who was scared and starting to cry. The other person became concerned and contacted police. Meanwhile Mr.

Snowden continued the conversation stating, “I’m going to fuck her” and “She’s scared. I’m raping her”. The investigation revealed that Mr. Snowden was using an internet café at the time and that the chat was entirely fictional. When the police searched a computer at his home they found 34 accessible child pornography images and one movie. [ 60 ] The seized devices, on which the pornography was found, were searched again at the time of the investigation into the predicate offences and are described under the heading “Mr. Snowden’s Collection”. [ 61 ] In 2014, while on probation, Mr.

Snowden was found in possession of a smartphone and a USB device capable of storing electronic files. He was convicted of 3 counts of failing to comply with his probation. C. The Evidence of Dr. Woodside [ 62 ] The s.752.1 assessment was conducted by Dr. Woodside. Dr. Woodside had previous dealings with Mr. Snowden at the CAMH sexual behaviours clinic. [ 63 ] Mr. Snowden was treated at the clinic in 2004 in relation to his 2003 convictions. Phallometric testing at the time indicated that he had a sexual interest in children. [ 64 ] When Dr. Woodside saw Mr.

Snowden in 2004 he had undergone a cognitive screening and his results fell at what was then described as, “borderline mentally retarded range”. At that time Mr. Snowden completed one cycle of treatment at the sexual behaviours clinic. Another cycle of treatment was recommended because it was felt that he had not understood or integrated the materials, but Mr. Snowden declined. His family was not supportive of his treatment at CAMH. [ 65 ] Post his 2013 convictions he was once again treated at the CAMH sexual behaviours clinic. Mr.

Snowden discontinued his treatment there once his probation ended. [ 66 ] In describing Mr. Snowden in his report for these proceedings Dr. Woodside stated, “He presented as quite obviously functioning in a borderline to low-average range intellectually with some of his answers having a child-like quality to them. He presented with limited insight and judgment”. Psychiatric Diagnoses [ 67 ] Dr. Woodside diagnosed Mr.

Snowden with the following: • Mild to moderate intellectual development disorder [IDD] • Specific Learning Disorders [Writing and Mathematics] • Conduct disorder • Antisocial Personality Disorder • Alcohol use disorder • Cannabis use disorder • Multiple Paraphilic Disorders, including: o Pedophilic Disorder o Other specified paraphilic disorder [Hebephilia]

o Transvestic Disorder, with fetishism o Exhibitionistic Disorder – currently in remission o Sadomasochistic interests – rule out sexual sadism and sexual masochism disorders Risk Assessment [ 68 ] Mr. Snowden’s PCL-R score of was 26 out of 40. This is considered above average among incarcerated offenders in terms of risk for re-offense. [ 69 ] Mr. Snowden’s score on the Static–99R was 5 out of 12 assuming release into the community prior to the age of 40, and 4 out of 12 if released after 40. If released before the age of 40 his risk of recidivating sexually was 2.7x that of the average sex offender.

If released after 40 it was 1.94x. Both scores place him in an above average risk category for sexual recidivism. [ 70 ] With respect to the Static-99R scoring, Dr. Woodside cautioned that the instrument is not validated for the use in individual’s with a history of child pornography offences only. Dr. Woodside was only able to use the instrument in Mr. Snowden’s case was because he had been charged with indecent act in 2002 [2] . [ 71 ] Because Mr. Snowden had no history of hands on offences, and his offending history was mostly related to possession of child pornography, Dr.

Woodside referenced the CEPORT tool in his report. [ 72 ] The CEPORT tool is an instrument developed to determine risk for reoffense among individuals with a prior history of solely child-pornography related offenses. Dr. Woodside cautioned that it had not been subject to sufficient additional research to allow for its use in estimating risk in clinical cases. However, he described it as providing “at least some guidance regarding the possible presence or absence of risk factors”. [ 73 ] Dr.

Woodside testified that child pornography offenders without a history of hands-on offending appear to be at lower risk for future hands on offending. It is fairly rare for individuals with child pornography offenses alone to move to hands on offending and the significant majority do not incur any further convictions. It was Dr. Woodside’s opinion that the CEPORT tool genuinely reflects that child porn offenders are at a lower risk compared with hands on offenders, with the caution that underreporting is significant in both areas.

The authors of the CEPORT study found that in the sample group of male child pornography offenders 97% did not commit future hands on offences. [ 74 ] Dr. Woodside also noted that previous risk assessments completed in corrections and elsewhere placed Mr. Snowden in a moderate-high overall supervision priority category regarding reoffense. [ 75 ] Mr.

Snowden’s static risk factors, i.e. those less likely to be responsive to intervention, were his antisociality/psychopathic traits, substance use difficulties, and sexual deviance in addition to his intellectual deficits. [ 76 ] In considering risk, particularly in the context of Mr. Snowden, Dr. Woodside cautioned that: Risk, however, is also a function of other dimensions, including potential severity of re-offense, frequency of re-offense, and imminence of re-offense, to name a few.

Most of these other dimensions are not addressed by the existing risk instruments, although they are clearly relevant to any discussion of risk. For example, high risk of further offending behaviour of a less severe nature (e.g. exposing oneself) may be insufficient to justify more severe sanctions, while a much lower risk of offending of a more severe nature (sadistic rape, shooting of victims) may be seen as unassumable for the community. [ 77 ] It was Dr. Woodside’s overall opinion with respect to Mr.

Snowden’s risk assessment that: I would caution that his estimated above average risk for sexual recidivism most likely reflects an increased risk for further sexual recidivism in terms of repeated child pornography-related offenses, rather than necessarily reflecting risk for a hands-on sexual reoffense. In this case, Mr. Snowden’s previous offending behaviour provides some indication of the type of sexual offending behaviour of which he is capable. In my opinion, he is most likely to reoffend through repeated use of child pornography; his risk of committing a hand-on sexual offense is likely much lower.

Overall, when combining/considering both clinical/dynamic and actuarial assessments of risk, I view Mr. Snowden as being at above average risk for further sexual offending in the form of repeated use of child pornography. Opinion with respect to Dangerous Offender / Long Term Offender Status [ 78 ] Dr. Woodside considered all of the various routes to a dangerous offender designation in s.753 (1) and found that, from a psychiatric perspective, Mr. Snowden “may meet at least some of the criteria for Dangerous Offender status”. [ 79 ] With respect to s.753(1)(a)(

i) Dr. Woodside offered only that, “Mr. Snowden has no history of violent offenses as an adult, barring his sexual offending, which is considered below under

section b).” [ 80 ] With respect to s.753(1)(a)(ii), it was Dr. Woodside’s opinion that Mr. Snowden’s repeated offending behaviour even while on bail, is “consistent with his showing a significant degree of indifference to the potential effects of his behaviour on his victims. I believe his capacity to empathise with others, in particular his victims, and to experience genuine remorse for his transgressions, is limited.” Dr Woodside noted that this may also in part be a function of Mr. Snowden’s limited intellectual abilities.

[ 81 ] Dr. Woodside offered no opinion with respect to s.753(a)(iii). [ 82 ] With respect to s.753(1)(b), Dr. Woodside noted that the actuarial risk assessment placed Mr. Snowden in an above average risk category for sexual re-offense. However, Dr. Woodside cautioned that, “It is unclear to this writer whether this would be seen as meeting this criterion for Dangerous Offender status”. This being because his risk for re-offense was largely a risk to re-offend through possession of child pornography and not by committing a hands on offence. [ 83 ] In considering Mr.

Snowden’s substantial (above average) risk for sexual re-offense, more specifically for repeated offences involving use of child pornography, Dr. Woodside offered cautious optimism that Mr. Snowden’s risk could be managed in the community through some form of determinate sentence and long term supervision: In

summary, I believe that there may be reason for limited optimism that his risk could be managed in the community pursuant to some form of long-term supervision, taking into account his estimated risk of recidivism compared with other offenders, his various diagnoses, his potential age at release, his reported willingness to take any and all forms of treatment (both psychological and pharmacological e.g. “chemical castration”), his being subject to strict terms of release and his likely being eligible to receive additional specialised services through the DSO in future [ 84 ] Dr. Woodside recommended that Mr.

Snowden apply to the Developmental Service of Ontario [DSO]. DSO is a resource that provides housing with 24 hour supervision for individuals with intellectual deficits and sexual paraphilias or other inappropriate behaviours. D. Mr. Snowden’s Evidence The Chats [ 85 ] Mr. Snowden testified that the chat with “Teddy” (referred to in para 22) was an entirely fictional “role play scenario”. [ 86 ] With respect to the Bensy chat, Mr.

Snowden testified in chief that, “realising now after the fact as the detective said stuff was actually happening I should have come forward … [but I] didn’t think it was real at the time”. [ 87 ] In cross-examination Mr. Snowden was asked questions about whether he “understood” that the person he was chatting with, Bensy, was interacting with a live child. Mr. Snowden testified that he assumed that the person was sending him a random image, not “the actual”. [ 88 ] The Crown put to Mr.

Snowden in cross-examination, “I’m going to suggest to you that at the time you did understand that the person you were speaking with on KIK was interacting with a child, is that fair?”. Mr. Snowden’s response was “not at first, no”. [ 89 ] The Crown then made a suggestion to Mr. Snowden that implied that Mr. Snowden actually believed that “Bensy” had access to the child: Crown: “And so, when you say, “Okay, if I tell you what I do, will you do it?” What I’m suggesting you’re saying there is that you want Bensy to do some things sexually to the child and you’re asking him if he’ll do it. Is that fair?” Mr.

Snowden: “Yes. But at this point he was just saying a random image, not with actual – not the actual.” The cross-examination continued in this vein, and it became apparent that Mr. Snowden had trouble distinguishing between the knowledge that he now had that there was an actual live child in Bensy’s house, and what his belief was at the time of the chat. For example: Crown: “Okay. So I’m suggesting that does not infer that she’s not home. It just means that he’s not alone with her at that time.” Mr.

Snowden: “To me it infers something else then.” Crown: “So you infer from him saying, “Yes, when I’m next alone with her” that that means she’s not home?” Mr. Snowden: “Yes” [ 90 ] Mr. Snowden maintained in cross-examination that he did not believe that “Bensy” had access to a child during their chat. Crown: So I’m suggesting that at this point, you believe that Bensy can simply go to her room to access this child. Is that right” Mr. Snowden: No. After fairly extensive cross-examination on this chat Mr. Snowden eventually agreed with the following suggestion by the Crown. Crown: Okay.

So certainly, you’ve indicated that from the time where Bensy says, “she is not anymore with me” up until that point, that’s the time period that you believe, that you believe that he was sexually abusing a child? Mr. Snowden: yes [ 91 ] Mr. Snowden’s response to this suggestion that implied that Bensy was actually sexually abusing a child during their chat is

inconsistent with all of his previous evidence. [92] Throughout the cross-examination Mr. Snowden was often confused and had difficulty distinguishing between what he “knew”at the time and what he had been made aware of at the time of his evidence. [93] It should be noted that despite the Crown’s suggestions to Mr. Snowden in cross-examination, there was no evidence that“Bensy” was actually interacting with a live child at the time of their chat. Nor was there any evidence as to when the images that“Bensy” shared with Mr. Snowden were created, or who actually created them.

The police in the U.K. had a belief that an older brotherof the child created the pictures but there was no evidence as to who Mr. Snowden was actually chatting with, only that he was chattingwith someone at the address where the child lived. Treatment and Supervision [94] Mr. Snowden acknowledged that within months of being released in July of 2019 he started accessing child pornography again. He agreed that he had lied about his use of pornography while on bail at the bail hearing in December of 2019. Mr.

Snowden agreedthat his use of child pornography was an addiction but testified that it was one that he planned to control with counselling and medication [95] Mr. Snowden testified that his mother had not previously done a good job of supervising him. He attributed this to her lack ofunderstanding of his conditions and of anything “digital or tech”. Mr. Snowden acknowledged that he himself had not done a good jobof supervising himself. This he attributed to a “misunderstanding of some of the conditions”. He also acknowledged taking advantage ofhis mother’s lack of understanding of technology. [96] It was Mr.

Snowden’s evidence that he now has better control over himself as a result of what he had learnt throughprogramming done at the TSDC and what he learnt about himself through this case. While in custody Mr. Snowden had takenadvantage of the programming offered by taking “whatever was on offer”. What was offered were one hour long sessions on a variety oftopics such as anger management, job skills, budgeting, parenting and substance use. The courses were introductory in nature and notintended to be in depth, although Mr. Snowden testified that they helped him gain some understanding of himself. [97] Mr.

Snowden testified that he had learnt through the programs that he took and the evidence at the dangerous offenderproceedings that possession of child pornography is not a victimless crime. In his words, “even though I didn’t touch anyone the personabused still has to relive it every day and to constantly think that their image is out there”. [98] Mr.

Snowden testified that he was angry before because he had been abused himself and never fully allowed himself to heal fromthat, that recovery is a work in progress and he still had a ways to go. [99] When asked why he had not continued on with the programming at CAMH after his probation expired, Mr. Snowden testifiedthat he thought that he had the problem under control, and that people around him including his family were “breathing in my ear, tellingme that I don’t need to go to CAMH.” [100] Mr.

Snowden acknowledged in his evidence that he was attracted to “younger people” but testified that he had never put thatattraction “into action”. [101] He testified that when Dr. Woodside had recommended medication to him in 2004 he had refused to take it because of fears of theside effects. He testified that he would do it now “even though the risks are the same” because the “treatment benefits and communitysafety outweigh those risks”. Mr. Snowden testified that after hearing Dr. Woodside’s evidence he made a request at the jail to be put onsex drive reducing medication. [102] At the time that he testified Mr.

Snowden did not have any housing lined up. He testified that he was told by a social worker atthe TSDC that he needed a release date before any steps could be taken with respect to housing. When asked what he would do ifreleased tomorrow, Mr. Snowden testified that he would look into treatment and try to find suitable housing. Acknowledging theconcerns with his family and their historical lack of support for his diagnoses and treatment at CAMH, Mr. Snowden offered that hewould get an ODSP worker to help him find another address to live and if necessary try to get into the DSO recommended by Dr.Woodside.

He testified that he would look for supportive housing, preferably with staff to monitor his comings and goings. [103] Mr. Snowden testified that he planned on trying to upgrade his schooling, although he acknowledged that most programs requirethe use of a computer and access to the internet. He offered to try to find a typewriter. III. LAW AND ANALYSIS A. Overview of the Dangerous Offender Scheme [104] The general purpose of the dangerous and long-term offender provisions of the Criminal Code is the protection of the public. Asstated by Wagner J., as he then was, in R. v.

Steele 2014 SCC 61 , [2014] 3 S.C.R. 138, at para 29: The primary rationale for both indeterminate detention and long-term supervision under

Part XXIV is public protection. Both sentencesadvance the “dominant purpose” of preventive detention identified by Dickson J. in Hatchwell v. The Queen, (SCC),[1976] 1 S.C.R. 39, at p.43, namely “to protect the public when the past conduct of the criminal demonstrates a propensity for crimes ofviolence against the person, and there is a real and present danger to life or limb”.

[105] A dangerous offender designation can result in the most severe sentence in Canadian law – a sentence of detention in apenitentiary for an indeterminate period. The statutory framework for a dangerous offender designation requires first and foremost thatthe offender have committed a serious personal injury offence. It is a condition precedent to any dangerous offender designation. The SPIO Gateway [106] “Serious personal injury offence” is defined in s.752 of the Criminal Code. Sexual assault offences in sections 271-273 areautomatically SPIOs. Other offences can constitute SPIOs if they are indictable and meet the definition set out in s.752(a)(

i) or (ii).

Section 752(a)(

i) requires the use or attempted use of violence against another person.

Section 752(a)(ii) requires, “conduct endangeringor likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person”. [107] The SPIO is both a gateway to an assessment pursuant to s.752.1, itself a condition precedent to a dangerous offender application,and a gateway to the ultimate designation. It is the gateway to the most severe sentence available. [108] In considering how the SPIO gateway requirement should be approached, Wagner J. cautioned: The general purpose of

Part XXIV is public protection, and an overly narrow construction of the gateway provision would indeedundermine this purpose. However, the specific purpose of the SPIO requirement is to link the sentence to the predicate offence, and anoverly broad construction would undermine this purpose and jeopardize the objective of proportionality. Steele, at para 27. [109] If construed too narrowly courts could be precluded from remanding potentially dangerous offenders for assessment unders.752.1.

If construed too broadly the gatekeeper function is diluted and proportionality between the predicate offence and the sentencejeopardised: Steele, at para 36. The Crown’s Onus [110] The onus on the Crown in a dangerous offender application is to establish all of the necessary elements beyond a reasonabledoubt. As stated by Rouleau J. in R. v. Williams, “the Crown must prove the statutory elements of dangerousness beyond a reasonabledoubt”: R. v. Williams, [2018] O.J. No.2481 (C.A.) at para 53, R. v. Jackson (1981), (NS CA), 61 C.C.C. (2d) 540(N.S.S.C. App.

Div.) at para 17. [111] Whether an offence is a SPIO is not a pure question of fact but a determination of law based upon fact: R. v. Tremblay, [2010]O.J. No.3450 (S.C.) at para 48. However, given that the finding that the predicate offence is a SPIO is a substantive requirement of thedangerous offender determination it falls to the Crown to prove the factual elements of a SPIO beyond a reasonable doubt: Steele, atpara.33, R. v. Burton, 2016 ONCJ 153 , [2016] O.J. No.929 (C.J.), at para 46, R. v. Singh, [2018] O.J. No. 852 (S.C.) at para 21. B. Serious Personal Injury Offence (

i) The Position of the Parties [112] None of Mr. Snowden’s offences involve the use or attempted use of violence. [113] The basis upon which the Crown submits the predicate offences are SPIOs is s.752(a)(ii): conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychologicaldamage on another person [114] It is the Crown’s position that the manner in which Mr. Snowden committed the predicate offences caused harm and inflicted, orwas likely to inflict, severe psychological damage on the subjects of the images.

In other words, that the children depicted in the imagesviewed and made available by Mr. Snowden suffered, and are likely to continue to suffer, severe psychological damage as a result of hisactions. [115] While the defence consented to the s.752.1 assessment there was no discussion at that stage of whether the predicate offences metthe definition of a SPIO. The defence position at this stage of the proceedings, the s.753 dangerous offender designation stage, is thatMr.

Snowden’s actions in the predicate offences did not involve conduct that endangered or was likely to endanger the life or safety ofanother person or inflicted or was likely to inflict severe psychological damage on another person. [116] Given that the threshold in the assessment stage is lower than at the designation stage, and also that the Code requires that theSPIO determination be made at both stages, I must first make a finding as to whether or not Mr.

Snowden committed a SPIO: Tremblay,at paras 41-58. (ii) The Case Law [117] I have not been made aware of any cases in which an offender has been designated a dangerous offender on the basis of predicateoffences that involved the possession or distribution of child pornography alone. The issue was considered in two cases which I amaware of, both at the s.752.1 assessment stage. [118] In R. v. Patterson, [2018] O.J.

No.5257 (S.J.) Justice Bawden found that while possession of child pornography could meet thedefinition of a SPIO, in that case the facts did not support the finding of a SPIO and he declined to order the assessment. In R. v. Ewing,[2021] O.J. No.2582 (C.J.), Justice Libman did find that the facts underlying the possession of child pornography charge supported thefinding of a SPIO. However, I am told by the Crown, who was also the Crown in that case, that ultimately Mr. Ewing was not found tobe a dangerous offender.

[119] There is no requirement that a SPIO be an offence involving extreme violence or that actual physical harm is caused. Nor is therea requirement that it be an offence against the person: R. v. Morgan, (2005), (ON CA), 195 C.C.C. (3d) 408(Ont.C.A.); R. v. Smith, 2010 ONCA 645 , [2012] O.J. No.4485 (C.A.). [120] What is required is that the accused’s conduct endangered, or was likely to endanger, life or safety.

Or that the conduct inflicted,or was likely to inflict, severe psychological damage. [121] Inflict is defined in the Oxford English Dictionary as: 1 Afflict (a person) with something painful or disagreeable 2 Impose or lay (a wound, blow, penalty, defeat, etc.) on a person or thing assomething painful or unpleasant to be endured (Foll. by on, upon) b Force (an unwelcome person or thing) on, upon. [122] The plain meaning of inflict suggests that direct action on the part of the accused is required. (iii) Mr. Snowden’s Role in the Bensy Chat [123] The Crown points to the Bensy chat and submits that Mr.

Snowden was attempting to create child pornography and thereforecommitting a SPIO. The Crown is, in effect, asking me to find that Mr. Snowden is guilty of either creating or attempting to create childpornography. [124] There is no evidence before me with respect to when the video and images sent to Mr. Snowden by Bensy were created. TheU.K. police officer DC Borrill testified that the images taken of the child were not recent as of the time of her investigation and werelikely a year or so old. This would predate them to the Bensy chat.

With respect to whether or not the images were takencontemporaneously with the chats, DC Borrill could only say that they were taken some time prior. There is no basis on the evidencebefore me to conclude that Bensy created the images that he sent to Mr. Snowden at Mr. Snowden’s behest. Nor is there evidence fromwhich I can conclude that Bensy, whoever Bensy is, created the images. [125] The Crown points to the exchange between Mr. Snowden and Bensy, and in particular Mr. Snowden’s message to Bensy, “if I tellu what to do will you do it”, and submits that Mr.

Snowden was directing Bensy to abuse a child. [126] When I consider Mr. Snowden’s history, there is no evidence before me that he has ever committed a “hands on” offence. Hedoes, however, have a history of engaging in what are clearly fantasy chats. This context is of some relevance in assessing his actionshere. [127] It was Mr. Snowden’s evidence in chief that he did not know that the child in the images sent to him by Bensy was someone thatBensy actually had access to. While the Crown in cross-examination managed to elicit evidence from Mr.

Snowden that could beinterpreted to mean that at the time that he sent that message Mr. Snowden believed that there was a live child in the house with Bensy, Ido not find, in considering all of the evidence, that this is in fact what Mr. Snowden believed at the time. [128] When I consider all of the evidence, including Mr.

Snowden’s evidence in chief, the manner in which he testified, his limitedcognitive capacity and obvious difficulty distinguishing between what he now understands to be the case and what he knew at the time,and his history of engaging in fantasy chats I cannot say with any degree of certainty that he intended to direct Bensy to abuse a child. Ido not find that Mr. Snowden believed at the time that he was engaged in the chat with Bensy that Bensy actually had the ability andwillingness to abuse a child, and would carry out any such instructions from Mr. Snowden. [129] I do not find that Mr.

Snowden’s actions during the course of the Bensy chat amount to the commission of a SPIO. (iv) Mr. Snowden’s Actions and the Victim Impact [130] The essential elements of a SPIO are not essential elements of any of the predicate offences. It is possible to possess, access andmake available child pornography without endangering the life or safety of, or inflicting severe psychological damage on, anotherperson. For example, pictures of imaginary children can meet the definition of child pornography. [131] The question is, did the manner in which Mr.

Snowden committed the predicate child pornography offences amount to thecommission of a SPIO. The focus of the inquiry is on the totality of his conduct surrounding the predicate offences and what Mr.Snowden actually did: R. v. Burton, 2013 ONSC 3021 , [2013] O.J. No.2423 (S.C.). Did Mr. Snowden’s actions endanger lifeor safety or cause severe psychological damage?

Were his actions likely to do so? [132] In Tremblay Karakatsanis J., then a trial judge, considered the term “severe psychological damage” and found: The concept of severe psychological damage acts as a threshold: not just any level of psychological harm will suffice. While I tend tothink that “severe psychological damage” must be something more than “serious psychological harm,” I accept that severe psychologicaldamage requires, as a minimum, a substantial interference with the victim’s physical or psychological integrity, health or well-being.

Tremblay, at para 76 [133] I have no trouble finding that, as a general proposition, children who are the knowing victims of child pornography are likely tosuffer severe psychological damage. There is an unfortunate wealth of case law detailing the harms suffered by children who have beenso victimised and sexually assaulted. However, as recently stated by the Ontario Court of Appeal in R. v. Morris, “a sentencing judge hasa specific and focussed task”: R. v. Morris, 2021 ONCA 680 at para 56.

This is particularly so when it comes to interpreting the scope ofthe dangerous offender legislation which, “is not intended to be a process of general application but rather of exacting selection”: R. v.Neve, 1999 ABCA 206 , [1999] A.J. No.753 (C.A.) at paras. 59 and 62. [134] Whether the production and dissemination of child pornography generally is harmful to society at large is not the issue before

me. Clearly it is: R. v. Sharpe, 2001 SCC 2. The question to be determined here is a specific and factual one. What was the impact ofMr. Snowden’s conduct? Did Mr. Snowden’s conduct cause harm that rises to the level required for a SPIO? A SPIO designation is aquestion of the specific facts of the case and the law. It must be based on the impact of Mr.

Snowden’s actions. [135] Trotter J., then a trial judge, grappled with a similar issue in Burton where the offence in question was attempting to procure ayoung person into prostitution: The social ills and dangers associated with prostitution, and juvenile prostitution in particular, are well-recognised and accepted by socialscience, and reflected in the legal literature and Canadian jurisprudence…. But this Ruling does not call for a panoramic discussion of these well-known harms associated with prostitution.

The Ruling is about thelegal significance of what actually happened to A.T. and whether it amounted to a SPIO. Burton, at paras 10-11 [136] In Burton, while the victim A.T. had suffered harm, Trotter J. considered that, “it is difficult to determine whether this expressionof harm stems from being asked (and simply refusing) to become a prostitute, or whether it arises from things A.T. has been told aboutMr.

Burton and her involvement in the court process”. [137] In the context of this case, similarly to Burton, while it is clear that harm has been suffered the question arises as to whether theharm is a direct result of Mr. Snowden’s actions, or if the harm has multiple causes and if so, if Mr. Snowden’s contribution to the harmis enough to bring his conduct into the SPIO sphere. [138] This is an issue that was also grappled with in another R. v. Burton, this time by Justice Greene in the Ontario Court of Justice. Inthat case another Mr.

Burton committed the offences of human trafficking of two different complainants, V.C. and A.O.. Declining toreach the broad conclusion that human trafficking inherently causes severe psychological harm, Justice Greene found: The question then becomes whether either A.O. or V.C. suffered severe psychological harm. The biggest difficulty in addressing thepresence or absence of severe psychological harm in the case at bar, is that both A.O. and V.C. have suffered a lot in their life. That iswhat made them such easy targets for Mr. Burton.

This also, however, makes it difficult for the court to parcel out whether the harmoccasioned by Mr. Burton’s criminal acts caused them to suffer sever psychological damage. R. v. Burton, 2016 ONCJ 153 , [2016] O.J. No.929 (C.J.) at para 73 [139] The same difficulties arise in this case. [140] The Crown has called victim impact evidence with respect to three real children who are captured in images in Mr. Snowden’scollection of child pornography. The harm suffered by those children, and described by their parents, is not specific to the actions of Mr.Snowden.

Each child clearly suffered terrible, serious and direct harm as a result of the actions of the persons who abused them andcreated the child pornography. It is hard to see how they would not have been psychologically damaged. To varying degrees they willcontinue to suffer as a result of what happened to them at the hands of their perpetrators. And to the extent that they have knowledge ofthe presence and availability of their images on line they will suffer harm as a result.

Their parents also experience psychologicaldistress from knowing their children’s images are being disseminated on line. [141] The difficulty here is not only that it is difficult to parcel out the role that Mr. Snowden’s actions may have played in the terribleharms suffered, the root cause of which are unquestionably not the actions of Mr. Snowden, but moreover that the harm existsirrespective of the actions of Mr. Snowden. [142] I find that extending the definition of harm required for a SPIO to harm that is suffered irrespective of the actions of the offenderis overly broad.

Without a direct causal connection between Mr. Snowden’s actions and the harm suffered proportionality is jeopardised. [143] Mr. Snowden’s actions may be a contributing factor to the perpetuation of the harm suffered by these victims of childpornography, but I cannot say that Mr. Snowden is a cause of the severe psychological damage that they suffer. C. Long-Term Offender Status [144] Section 753(5)(

a) allows a court, where a dangerous offender designation has not been made, to treat the application as anapplication to find the offender to be a long-term offender. [145] The Crown submits that should Mr. Snowden not be found to be a dangerous offender I should find him to be a long-termoffender.

Section 753.1(1) allows for a long-term offender finding if: (

a) It would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender hadbeen convicted; (

b) There is a substantial risk that the offender will reoffend; and (

c) There is a reasonable possibility of eventual control of the risk in the community. [146]

Section 753.1(2) then sets out conditions under which the court shall find that the substantial risk of reoffending required ins.753.1(1) is met. [147] There is no issue that the condition in s.753.1(1)(

a) has been met. Should there be a determinate sentence it is the Crown’s

position that 5 years is appropriate. The position of the defence is that a sentence of 4 years is appropriate. I agree that a sentence ofmore than two years is well within the range and would be appropriate. [148] At first glance it appears that the criteria in s.753(1)(

b) has been met. Given Mr. Snowden’s history and the evidence of Dr.Woodside I am prepared to find that there is a substantial risk that Mr. Snowden will reoffend. However, s.753.1(1)(

b) has beeninterpreted in the case law to require a risk of violent reoffending: R. v. Piapot (2017), 2017 SKCA 69 , 355 C.C.C. (3d) 239(Sask.C.A.). [149] Mr. Snowden has no history of violence. Dr. Woodside’s opinion was that he was at above average risk to reoffend for childpornography possession offences and not for hands-on offences. It was not Dr. Woodside’s opinion that there was a substantial risk thatMr. Snowden would re-offend violently, nor is there any evidence before me from which I can conclude that there is a substantial riskthat he will re-offend with violence. [150]

Section 753.1(2) sets out states that the court shall be satisfied that there is a substantial risk that the offender will reoffend ifcertain criteria are met: (

a) the offender has been convicted of [listed offences which include possessing and accessing child pornography]: and (

b) the offender (

i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows alikelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons, or (ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted,has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences. [151] I find that the criteria in s.753.1(2) have not been satisfied for the same reasons that I have found that the predicate offenses do notsatisfy the SPIO requirement. [152] With respect to s.753.1(1)(c), it was Dr.

Woodside’s opinion that there was reason for cautious optimism that Mr. Snowden’s riskcould be managed in the community pursuant to some form of long-term supervision. [153] So while I find that Mr. Snowden at first appears to meet the statutory criteria for a LTO designation, in considering hows.753.1(1)(

b) has been interpreted to require a risk of violent re-offending, I cannot make that designation. D. Sentence [154] Denunciation and deterrence are the paramount sentencing principles when it comes to offences involving the possession of childpornography. Where the collection in question is particularly large and aggravating penitentiary sentences are called for. This isespecially so where the offences include making child pornography available: R. v. Inksetter, 2018 ONCA 474. [155] Here Mr.

Snowden’s repeat offending, including while on bail for these offences, and the size and nature of his collection areextremely aggravating factors. His psychiatric diagnoses and risk assessment are similarly aggravating. As is his historical failure toaccept and follow through with treatment. [156] Mr. Snowden’s background is tragic and is not his fault. The failure of his family to recognise and support his diagnoses andneeds is unhelpful to say the least. [157] There is some comfort in Dr. Woodside’s cautious optimism that Mr. Snowden’s risk can be treated and managed in thecommunity.

I also accept that sitting through these dangerous offender proceedings has brought a level of awareness to Mr. Snowden ofthe harmful nature of his actions and his need for treatment. [158] In all the circumstances of this case I agree with the Crown that a sentence of 5 years is appropriate. I am prepared to give himcredit of 3 years for his pre-sentence custody leaving him with a sentence of 2 years in the penitentiary. There will be various ancillaryorders which I will address with counsel and include as an addendum to this judgment. Released: November 22, 2021 Signed: Justice Newton-Smith