r v. STEVEN LAROUCHE, 2023 QCCQ 1853

Translated from the original French R. c. Larouche 2023 QCCQ 1853 COURT OF QUÉBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ST-FRANÇOIS LOCALITY OF SHERBROOKE “Criminal and Penal Division” Nos.: 450-01-124382-214 450-01-124383-212 450-01-125590-229 DATE: April 14, 2023 ______________________________________________________________________ PRESIDING: THE HONOURABLE BENOIT GAGNON, J.C.Q. ______________________________________________________________________ HIS MAJESTY THE KING Prosecutor v.

STEVEN LAROUCHE Accused ______________________________________________________________________ SENTENCING JUDGMENT ______________________________________________________________________ [ 1 ] The Court must determine how to sentence a 61-year-old man who pleaded guilty to possessing over 545,000 child pornography files, to making some of them available on sharing sites, and to making over 86,000 child pornography files using deepfake technology. [ 2 ] The Crown submits that the sentences for all the counts must be served consecutively for a total of 13 years’ detention.

The Crown suggests, however, that the sentence be reduced to 10 years’ detention to respect the principle of the total sentence. The astounding number of child pornography files the offender possessed, their nature, and the impact of the technology used by the offender to make the files requires such a sentence to denounce and to deter. [ 3 ] The offender submits that a total sentence of 5 years’ detention is the most fit in the circumstances, given the nature of the material made and the technology used, his guilty plea, and his possible rehabilitation in relation to his risk of reoffending.

ANALYTICAL FRAMEWORK General principles [ 4 ] Before beginning the analysis as such on the just sentence, the Court considers it relevant to review certain key principles. [ 5 ] Sentencing is a fundamental aspect of criminal law.

Without a just and appropriate sentence, the criminal process related to the verdict would lose all its value: to protect society and to contribute to crime prevention, to respect for the law and the maintenance of a just, peaceful and safe society. [ 6 ] In Lacasse , [1] the Supreme Court of Canada recalled that proportionality and individualization are the cardinal principles in applying the objectives of the Criminal Code . [ 7 ] The credibility of the criminal justice system in the eyes of the public depends on the fitness of sentences imposed on offenders.

A sentence that is unfit, whether because it is too harsh or too lenient, could cause the public to question the credibility of the system in light of its objective and its principles. [ 8 ] To accomplish this without being arbitrary, in sections 718 and following of the Criminal Code , Parliament has provided guiding principles for the Court when determining a just sentence: - to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; - to deter the offender and other persons from committing offences; - to separate offenders from society, where necessary;

- to assist in rehabilitating offenders; - to provide reparations for harm done to victims or to the community; - to promote a sense of responsibility in offenders. [ 9 ] The Court must also try to impose a sentence that is similar to those imposed on other offenders in similar circumstances and must avoid unduly long or harsh sentences. Principles applicable to crimes against children [ 10 ] Parliament’s main purpose in passing the child pornography law is to prevent harm to children by banning the production, distribution and possession of child pornography.

This legislation also sends the message to Canadians that children need to be protected from the harmful effects of child sexual abuse and exploitation and are not appropriate sexual partners. [2] [ 11 ] When sentencing an offender convicted of a crime that involves the abuse of a child, the Court prioritizes the objectives of denunciation and deterrence. [3] Sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities.

Sentences for this type of crime must reflect the wrongfulness of sexual violence against children and the harm that it causes to children. [4] [ 12 ] The advent and development of new technologies have sadly contributed to the proliferation of child pornography, one of the forms of child exploitation and violence against them. [5] Canadian courts from all jurisdictions unanimously view the continuous expansion and increasingly easy use of the Internet to perpetrate sexual offences against children as an evil that needs to be urgently eradicated. [6] Child pornography offences are pernicious in that they repeat the original sexual violence against children, who know that others may be accessing the films or images, which may resurface in the children’s lives at any time. [7] The sexual abuse of young children should never be tolerated in a healthy society. [8] ANALYSIS The offender’s profile [ 13 ] The offender was 60 years old when he was arrested.

He had prior convictions, primarily for charges of driving while impaired by alcohol dating back 20 to 40 years. He was also convicted for being unlawfully at large while serving an intermittent prison sentence. [ 14 ] Divorced for over 20 years at the time of his offences, before he was arrested, he was living with his youngest son, for whom he was a caregiver. He retired from his job as a boilermaker, a field in which he worked for over 35 years. He has computer skills and worked in this field for three years after studying, but not completing, a college program.

While his criminal record reveals a long-term drinking problem, the offender appears to have gotten his drinking under control in recent years. [ 15 ] However, while he admits that the child pornography offences committed are illegal, the offender still has trouble understanding the consequences of his crimes on the victims. His shame and remorse are related primarily to the impact of the charges on those close to him.

The author of the pre-sentence report considers that the presence of various cognitive distortions lessened his feelings of guilt and allowed him to commit the offences over a lengthy period. [ 16 ] In view of the duration of the offence, his deviant sexual interests, his Internet addiction to pornography, his sexual preoccupations, his cognitive distortions, and his difficulty identifying the consequences of his acts on the victims, the author of the pre- sentence report recommends that the offender participate in complete sex offender therapy. [9] [ 17 ] The offender was assessed by a clinical sexologist.

While the offender does not deny that he possessed and categorized many child pornography files involving children of all ages, he stated that he is particularly attracted to adolescents. He minimizes the criminal aspect of child pornography and his arousal when consuming this type of content. He denies that he has a sexual problem related to child pornography or that he needs help to understand his sexual behaviour.

He believes that he committed a victimless crime because he had no actual contact with the victims. [ 18 ] The clinical sexologist concluded that the offender poses a diminished risk of online sexual conduct. The overall risk of reoffending for similar offences ranges from 4 to 6% and is considered low.

However, the Court remains prudent with respect to this conclusion because the offender’s assessment focussed solely on the count of possession of child pornography and not on the counts of making and making available child pornography material. [ 19 ] The clinical sexologist, like the author of the pre-sentence report, nonetheless recommends that the offender participate in therapy for the crimes committed. The offender said the following about the usefulness of therapy for his offence: [ translation ] “I know I won’t relapse. I’m done with the Internet. I can control myself. The Internet is over for me.

I’ve learned my lesson. I don’t think I need it” . [10] That being so, he said he is prepared to cooperate with the Court’s recommendations if he was required to enter therapy. The offender is clearly delusional about the means to control the risk of reoffending.

The author of the pre-sentence report observed: [ translation ] “I noted his tendency in the past to flee problems rather than deal with them properly”. [11] [ 20 ] Although the offender decided not to adduce evidence during sentencing submissions, he nonetheless shared his observations with the Court. [12] He said that he realizes that the children in the files he possessed, distributed, or altered are real victims.

The judicial process seems to have made him understand that his actions have in a way perpetuated the victimization of children. [ 21 ] While it is difficult for the Court to analysis the sincerity of the offender’s remarks, uttered after he read a text, while he was not sworn and could not be cross-examined, the fact remains that his remarks echo his guilty plea and his cooperation with the police and the court.

The Court therefore finds that despite the quantity of material seized at the offender’s home and despite his ambivalence to receive treatment, he has the potential to rehabilitate himself and return to society after his prison term if he completes therapy.

Analysis of the fit sentence per count [ 22 ] In keeping with the method applied by the higher courts, [13] the Court will determine the sentence to be imposed for each count. The Court can then determine whether these sentences should be served concurrently or consecutively and last, whether the total sentence is proportional given the gravity of the offences committed and the degree of the offender’s responsibility.

Possession of child pornography Period of possession [ 23 ] An analysis of the files seized from the offender’s home reveals that he possessed the files for a period of over 10 years, between August 2011 and the time he was arrested on December 1, 2021. During this period, the offender never questioned the gravity of his acts. He never reacted and agreed with the sexologist who assessed him that he lived throughout this period with major cognitive distortions.

The offender believes that he was desensitized and no longer saw real children. [14] [ 24 ] It is obvious that had the offender not been arrested and the computer equipment seized, he would have continued to possess his “collection” without questioning the immorality or legality of his behaviour. Objective gravity of the offence of possession of child pornography [ 25 ] The situation is particular for the offender. There have been major legislative amendments to the offence of possession of child pornography. Prior to July 17, 2015, the maximum sentence for possession of child pornography was 5 years’ detention.

Since that date, the maximum sentence under the Criminal Code is 10 years’ detention. [ 26 ] Given that the wording of the count describes a continuing offence over a period of 10 years, the offender has the right to the benefit of the lesser punishment. [15] The Court therefore considers that the offender, on this count, faces a maximum sentence of 5 years’ detention. However, the Court notes that Parliament has singularly increased the maximum sentence for the offence of possession of child pornography.

In so doing, it has clearly indicated that it wants such offences to be punished more harshly. [16] Number of files [ 27 ] The number of files the offender possessed is dizzying. Nearly 545,000 files corresponding to the legal definition of child pornography were found in the offender’s possession.

While not the largest quantity of files ever found in Canada, it cannot be denied that the offender’s “collection” is among one of the most extensive in the Court’s history. [17] The quantity of files the offender possessed meant that specialized Sûreté du Québec investigators had to design a distinct computer process to analyze each file and ensure that it was indeed a file that fell within the strict definition of child pornography in the Criminal Code .

Two specialized Sûreté du Québec investigators had to work full time for several weeks on the offender’s case, given the quantity of files involved. [ 28 ] That said, the quantity of illegal files itself, while a relevant factor to consider when determining the fit sentence, cannot have a disproportionate impact.

The sentencing process is not akin to a simple mathematical operation where the only thing considered is the number of files. [18] Such a calculation would not do justice to the offender, to society, or to the children harmed given the different circumstances in which the offence of possession of child pornography may occur. [19] However, the quantity possessed is relevant to gauge the offender’s moral culpability. Filing system [ 29 ] The offender took great pains to save each file, whether a photograph or a video, in a precise category.

For example, the police found a series of pornographic photographs of a child, Eva. [20] Her development can be seen over a period from 7 to 14 years old. Each period was saved in a separate directory. [ 30 ] Ultimately, the tree of the offender’s filing system reveals the care and planning that went into his “collection”. This filing system allows the Court to consider the level of premeditation of the acts. The possession here is not due to happenstance or prurience. The possession here is the result of deliberate structured acts.

Impact of the offence on the victims [ 31 ] Through the Canadian Centre for Child Protection, the Court was able to contact some of the actual sexual assault victims whose videos and photographs appeared in the offender’s “collection”. They powerfully described the impact of the child pornography offences on their life. Their view of the world has been irreparably damaged, and they trust no one. [21] Other victims feel shame, embarrassment, and anger because other people can access images of their abuse. [22] [ 32 ] For example, one victim said that she lives in constant fear of being recognized and raped again.

She feels guilty even though she is the victim. [23] The impact of propagating their images on the victims is felt in various spheres of their life, be it emotional, health (particularly mental health), or employment. Substance abuse due to the assaults and publication of their images only exacerbates their symptoms. [24] [ 33 ] One victim clearly explained the trauma due to the proliferation of the images of their assaults: [ translation ] “Contrary to other forms of exploitation, this has no end. Every day, people exchange and share videos of me when I was little and being sadistically raped.

They do not know me, but they have seen me from every angle . They laugh at my shame and my pain”. [25] Another one explained: [ translation ] “Manipulation, grooming, and then the sexual abuse I suffered as a child is one thing, but I managed to get past it. However, I cannot get past the fact that people continue to relive and enjoy what happened to me”. [26] [ 34 ] The impact on victims of child pornography offences is independent from the impact of sexual assault and exploitation offences against these children. Child pornography offences have major and often lifelong consequences.

They will never stop being haunted by

the images of the assaults and cruelty they suffered. By participating in this virtual market, offenders contribute to perpetuating the very real consequences for victims. [ 35 ] As stated by the Court of Appeal in Légaré [27] and Lacelle-Bélec , [28] the consequences of crimes may rightly be considered aggravating factors during sentencing. Impact of the offence on the police [ 36 ] The Crown asks the Court to consider the impact of handling this case and the images to which the investigators who worked on this file were exposed. The Crown submits that they must be considered as victims within the meaning of

section 2 of the Criminal Code . [ 37 ] On the contrary, the defence submits that this is one of the risks for an officer working in the technology unit. If the definition of

section 2 of the Criminal Code became this broad, the definition would include counsel on record (including for the defence) and the presiding judge. [ 38 ] The Court has no intention of partaking in a semantic debate that it considers superfluous in the circumstances. Whether or not it considers the file investigators as victims within the meaning of the Criminal Code does not change the fact that they are affected by the offender’s crimes. The Court understands the effects on the investigators of their exposure to the material found at the offender’s home.

They personally suffered the repercussions of their work, including on their personal life. [ 39 ] Having viewed a sample of the material found at the offender’s home, [29] the Court comprehends the difficult task these men and women must do every day. Their work is absolutely necessary to protect our communities. Their sense of duty, at the risk of their health, must be highly commended. The consequences of the offender’s crimes on the police officers are a clear example of the secondary repercussions of this type of offence on our communities.

Nature of the files possessed by the offender [ 40 ] In a preliminary decision, the Court authorized the Crown to file in evidence a

summary of the types of files the offender possessed. Based on five broad categories recognized in Oliver, [30] by the Court of Appeal of England, which categories were adopted with approval by many provincial appellate court judgments, including in Quebec, [31] these categories are defined as follows: (

a) images depicting erotic posing with no sexual activity; (

b) sexual activity between children or solo masturbation by a child; (

c) non-penetrative sexual activity between adults and children; (

d) penetrative sexual activity between children and adults; (

e) sadism or bestiality involving children. [ 41 ] While it is pointless to describe in detail the images, photographs, and videos presented to the Court, to describe these images as “child pornography” is a euphemism. The images convey the exploitation of fragile children, serious and demeaning sexual assaults, and the torture of vulnerable human beings. The small sample of images presented leaves the Court speechless. Children are exploited for the sexual pleasure of their assailants and a community of adults who are aroused by the misfortune of human beings forced into a position of extreme weakness.

The images shown to the Court reveal that which is most vile and abject. [ 42 ] But there is more. The police also found, in one of the directories for the child Eva, innocuous images, clearly taken from social media, of the child when she was an adolescent or young adult. Her personal information is also there, her real name, date of birth, where she lived, the names of her brothers and sisters, the name of the school she attended, and her address on social media. [ 43 ] An edited video of another victim taken from an actual documentary was found in the offender’s “collection”.

Someone (nothing confirms that it was the offender) therefore altered this documentary in which a sexual assault victim describes the crimes her father committed against her and added some real child pornography filmed sequences of her. [ 44 ] The possession of information that falls outside the strict definition of child pornography leaves the Court particularly perplexed with respect to the offender’s statements that he only viewed images, not real children, when he looked at child pornography. [32] The conscious and deliberate possession of such images and personal information on the victims, filed in a specific directory, instead reveal the moral turpitude and culpability of an individual such as the offender.

These facts must legally be considered as a highly important aggravating factor. Fit sentence for possession of child pornography [ 45 ] Had it not been for the offender’s prompt guilty plea, his cooperation with the investigation, and the fact that he poses a diminished risk of reoffending on this count, the Court would have imposed the maximum sentence the offender was facing. While exceptional, [33] there is nothing theoretical here about imposing the maximum sentence prescribed by law at the time, particularly given the significant increase in the length of the maximum sentence since then.

The nature of the files, their categorization, the duration of their possession, and their quantity would have required such a sentence, particularly in light of the Supreme Court’s teachings in Friesen on the desire to increase the sentencing ranges for offences against children. [ 46 ] The Court finds, however, that 54 months’ detention on the count of possession of child pornography is the fit sentence, taking into account all the factors described above. Distributing and making available child pornography

[ 47 ] Child pornography files are very often shared using peer-to-peer software. While somewhat technologically complex, this software is rather easy to use. Users who download this type of software see a [ translation ] “shared file” created on their computer. [ 48 ] Each computer is connected to the network using this software and becomes a de facto decentralized indexing server. When a user searches in the search bar, only a fraction of each requested file is sent to the user.

To deconstruct and reconstruct each file, the software uses a [ translation ] “hash” or [ translation ] “digital fingerprint” value, which functions as a DNA sequence for the file. [ 49 ] The software can then shard this value and reassemble it by extracting from each of the files of several users. If the file’s [ translation ] “digital fingerprint” is identical to the one initially sent, the files’ integrity is guaranteed.

If the file was altered, even the slightest bit, the [ translation ] “hash” value will be irreparably changed. [ 50 ] The police therefore participated in creating automated software that connects with the file-sharing software to identify the people possessing and distributing child pornography. The police are thus able to make requests using known key words in the child pornography world to verify who is making this type of file available. [ 51 ] For example, during an exchange with the automated police software, this confirms whether the files are actually child pornography.

Once the police determine that the same file falls within the legal definition of child pornography, its [ translation ] “digital fingerprint” is entered in a database. Thus, in 2004, the police created a database to establish all transmissions between users and the automated police software to ensure that the files shared are child pornography.

Since then, the IP addresses of people who offer this type of content are known and recorded. [ 52 ] On June 2, 2021, the police realized that since 2018, the offender’s IP address had been actively sharing files known to fall within the definition of child pornography in Canada. They therefore tried to contact the offender’s computer to see if they could download known child pornography files. The police downloaded 16 complete and 1 incomplete child pornography files from the offender’s computer between June 2, 2021, and September 18, 2021.

On September 20, 2021, the automated software recorded 1,257 occurrences of files known to be child pornography made available from the offender’s IP address since June 2018. Objective gravity of the offence of distributing child pornography [ 53 ] The minimum sentence for distributing (or making available) child pornography is 1 year’s detention and the maximum sentence is 14 years’ detention. This offence must be considered as one of the most serious in the Criminal Code . Offender’s computer skills [ 54 ] The offender is not a computer neophyte.

He studied computing at college and worked in this field for nearly three years. It is obvious that in this environment, users must provide files to receive them. [34] Users who do not make files available will therefore often find themselves on a waiting list before being able to download files from other users, with the risk of not being able to do so. The Court is therefore satisfied on a balance of probabilities [35] that the offender knew full well that he was making available child pornography files, if only when he himself uploaded this type of file.

While not an aggravating factor, it is nonetheless a relevant fact for the Court. Period child pornography was available [ 55 ] It should be recalled that the offender provided free access to the child pornography files for over three years. The offence would have continued had he not been arrested. When the police searched the offender’s home, officers from the technology unit realized that the offender’s computer was still making available child pornography files. Number of files made available [ 56 ] It should be noted that the number of files actually shared, in full or in part, remains unknown to this day.

For example, it is impossible to know whether the offender’s entire “collection” was shared. It is also impossible to know whether the deepfake files created by the offender were made available. The Court can only take note of the 17 files actually downloaded by the police to establish the fit sentence. Fit sentence on the count of distributing child pornography [ 57 ] A higher sentence is objectively required for the offence of distributing child pornography than for an offence related to possession or accessing [36] because the effects of distributing child pornography potentially last forever.

In this case, however, this principle must be mitigated. [ 58 ] The sentence must be reduced on the count of distribution considering the number of files shared compared to the number of files the offender possessed. The distribution of child pornography here is not exceptional or unusual as is the offender’s possession of his significant “collection”.

The fact that the offender made available child pornography files and the circumstances of this distribution place him in the jurisprudential range varying from 20 to 36 months for comparable cases. [37] Considering the offender’s profile, the guilty plea, the period during which the offender made available child pornography, and the number of files shared, the Court finds that 30 months’ detention is a fit sentence in this case. Making child pornography [ 59 ] This case is unique in the country because the offence of making child pornography using deepfakes has not yet been dealt with by the courts.

While deepfakes have recently been analyzed by certain scholars with respect to the connection between this technology and offences related to conjugal violence and the distribution of intimate images, [38] or with respect to the national security risks of this technology (particularly election-meddling [39] ), this case appears to be the first involving child pornography offences. [ 60 ] Deepfake ( hypertrucage in French [40] ) technology is an audiovisual technique that uses deep learning algorithms to create

extremely realistic fakes. For example, this technology can superimpose one person’s face onto another person’s body in a video clip. A synthetic voice edited to sound exactly like the individual being impersonated can also be added to this visual fake. [ 61 ] The technology unit investigators were able to seize this type of deepfake file and update the offender’s production of this content by chance. Investigating officers assigned to the Sûreté du Québec’s technology unit have to be in contact with child pornography as part of their job.

Over time, they become familiar with certain series of photographs or videos involving exploited children. Unfortunately, they know some of the victims quite well because their photographs or videos appear in the “collections” of many criminals they deal with. [ 62 ] When the police searched the offender’s home, they noted that some files appeared different from a series of photographs they had seen in the past. They noticed some anomalies in the quality of the image.

They decided to analyze this series further at the laboratory to verify their theory that these files had been modified or altered. [ 63 ] After analyzing it, the investigators discovered software to create deepfakes and a user manual among the computer equipment seized at the offender’s home. The investigators decided to download the software to better understand its features. The everyday person clearly cannot use this software’s features. Using it requires computer skills and a significant investment in time. [ 64 ] To create a successful deepfake, a user must have source material and destination material.

This can be done using a bank of photographs or video clips. For example, it takes between 3,000 and 8,000 photographs of the same face to create a sufficient source file to export a face onto the body of another person. The software sequences a video excerpt image by image to obtain a bank sufficient to create a minimally realistic deepfake. [ 65 ] Once the database is sufficiently complete, the software tries to teach the artificial intelligence to take into account the different facial features on each photograph: angle of the face, position of the eyes, lips, ears, etc. to mimic the source face’s movements.

Teaching requires considerable technological means and a number of hours of work that is difficult to quantify other than to say it is particularly long. The longer it takes, the better the result because the artificial intelligence has learned that much more. Note that deepfakes can be created using the same medium (video to video) or different media (photograph to video and vice versa). [ 66 ] The offender created several deepfake photographs and videos. While it is clear that there was an evolution in the offender’s ability to create deepfake images, some results are of an exceptional visual quality.

It is impossible to separate the real from the fake. Had the investigators not been familiar with the known child pornography [ translation ] “media library”, it would have been impossible to know whether a photograph was a deepfake. The police have clearly entered a new era of cybercrime. Objective gravity of making child pornography [ 67 ] The minimum sentence for making child pornography is also 1 year’s detention and the maximum sentence is 14 years’ detention. This offence must also be considered one of the most serious in the Criminal Code .

Quantity of files made [ 68 ] The parties agree that 86,000 files were made using deepfake technology. This quantity must, however, be put in context. By sequencing a video excerpt to create a new deepfake excerpt, the software must create between 15 and 30 “photo” files per second of video. The number of files created therefore increases exponentially. By making 7 child pornography graphic (video) files, the offender in fact made over 86,000 new child pornography photographic files.

The fact remains that these 86,000 files were made and are multiplying and perpetuating their deleterious impact on the victims: the children. Impact of creating these files on the work of law enforcement [ 69 ] By creating these 86,000 new files, the offender is not creating a copy of the original but rather a new file with a separate [ translation ] “digital fingerprint”. It should be recalled that the knowledge of this [ translation ] “digital fingerprint” is what allows the police in several countries to intercept cybercriminals making available child pornography files.

Thus, the [ translation ] “source material” files, whose [ translation ] “digital fingerprint” was known to the police, was replaced by 86,000 independent units with new [ translation ] “digital fingerprints”. The technology currently used by law enforcement is now ineffective and will rapidly become obsolete. The impact on the safety of our communities is therefore major. The importance of deepfake technology and the prospective social impact [ 70 ] The use of deepfake technology by criminals is chilling.

This type of software makes it possible to commit crimes that could involve practically every child in our communities. A simple video excerpt of a child on social media or a surreptitious screenshot of children in a public place could transform them into potential child pornography victims. All a cybercriminal has to do is sequence the video and exchange the child’s face with the face of a sexual assault victim found online.

New files are thus created and the children’s sexual and psychological image and integrity are irreparably harmed, with the potential for that file to be disseminated everywhere on the Internet, without any control.

Fit sentence on the count of making child pornography [ 71 ] Production of child pornography is fueled by the market for it, and the market in turn is fueled by those who seek to possess it. [41] This market, on the lookout for anything new, is thus being fuelled by the creation of new files, be they genuine or deepfakes. [ 72 ] It should be recalled that the harms of child pornography are known and many: child pornography promotes cognitive distortions in offenders by banalizing the awful. It fuels fantasies that incite sexual offences against children.

It is used to groom and seduce victims and leads others to produce new material to fuel the market of possession [42] by assaulting and abusing real children. By producing this type of content, the offender is serving this market of cruelty to children.

[ 73 ] It should be nonetheless noted that nothing supports the conclusion that the offender intended his deepfakes to be available to anyone other than himself. Nothing indicates that his work was in fact distributed. The Court must therefore sentence the offender for the acts actually committed and not consider acts that could have been committed. Assessing an individual’s moral culpability depends on the facts entered in evidence. [ 74 ] The Crown argues that the use of deepfake technology to make child pornography in this case must receive an exceptional sentence of 6 years’ detention for this count alone.

The possible and probable social impact of using this technology to make child pornography requires that a clear deterrent message be sent to anyone thinking of committing such a crime using this technology. The offender emphasizes that children were not sexually assaulted again to make this material and submits that a sentence of 20 months’ detention is fit on this count. [ 75 ] While it is true that children were not sexually assaulted again or exploited in another way to make this new material, the fact remains that their image and their sexual integrity related to this image was again violated.

However, it would be contrary to the philosophy of our criminal law (and would be an error of law) for a person to suffer a disproportionate punishment simply to send a message to discourage others from offending. [43] The court’s primary role is to impose fair punishments. [44] [ 76 ] In this sense, using technology to make deepfake material does not substantially change the essence of the offence of making child pornography. While the case at bar is unique because of the technology used, this does not mean that it should be treated exceptionally.

Whether it was made using technology to create deepfake photos or videos or using better-known technologies matters little when determining the fit sentence. Potential offenders will understand from the sentence imposed that they cannot expect any special leniency from the Court by claiming that they are [ translation ] “mere tinkerers” using existing images of abused children. They will face the same punishments. [ 77 ] Thus, the astounding number of files made will be taken into account, noting however, the technological reasons for such a number.

The offender’s acts were deliberate, and the continuing offence is established by the number of hours required to arrive at such a result given the technological means implemented. [ 78 ] The evidence does not establish that the deepfakes were intended to be distributed or that they were in fact distributed. The Court also notes that the offender rapidly pleaded guilty and cooperated with the police and the judicial system.

The offender’s rehabilitation is possible, although it will require lengthy therapy focussed on his cognitive distortions and the reasons for his quasi- compulsive behaviour regarding possession, archiving, and production. [ 79 ] Given that sentences for this type of offence [45] historically vary from 18 to over 36 months and given the principles listed above set out in Régnier [46] and in Friesen [47] that establish higher sentencing ranges for sex offences against children, the Court finds that 42 months’ detention is a fit sentence and respects the principle of proportionality in light of the offender’s moral culpability.

Consecutive or concurrent sentences [ 80 ] Applying the principles of

section 718.3(4)(

b) Cr. C. , the Court finds that the sentences for the offences of possession and making available child pornography files should be served concurrently. The offender seems to have made available files he already possessed or was himself downloading. This is generally how the Quebec higher courts tailor the sentence in such situations. [48] [ 81 ] The parties both agree that the sentence on the count of making should be consecutive to the sentence for the other two counts. The Court agrees.

The making of child pornography here does not arise from the same facts [49] and should be added to the others. [ 82 ] Therefore, the offender should be sentenced to a total of 96 months or 8 years’ detention. The sentence reflects the offender’s overall degree of responsibility and moral culpability. The Court will not reduce the total sentence because it considers it fit in the offender’s particular circumstances. [ 83 ] That being so, it should be noted that the offender has been in custody since his arrest on December 1, 2021. He has therefore spent 499 days in pre-sentence custody.

Applying the principles in Summers , [50] the Court credits a total of 750 days [51] (or 25 months) for a total sentence of 5 years and 11 months as of today. Request to delay parole (743.6 Cr. C. ) [ 84 ] The Crown asks the Court to delay parole to force the offender to serve at least half of his sentence before being eligible for parole. Essentially, the Crown argues that this situation is exceptional, which justifies its request. [ 85 ] The Court finds that it is poorly equipped to make a decision about the future based on the current record.

The Court instead believes that the Parole Board of Canada will have the benefit of more detailed and contemporaneous reports on the offender’s personality and risk of reoffending, his conduct while incarcerated, and any participation in therapy. The Crown’s request is therefore denied.

FOR THESE REASONS , the Court: SENTENCES the accused, in file 450-01-124383-212 (possession of child pornography), to 54 months’ detention; SENTENCES the accused, in file 450-01-124382-214 (making available child pornography), to 30 months’ detention to be served concurrently with the sentence in file 450-01-124383-212; SENTENCES the accused, in file 450-01-125590-229 (making child pornography,) to 17 months’ detention, taking into account the 499 days spent in pre-trial custody, equal to 750 days. The sentence is to be served consecutively to the sentences in files 450-01-124383-212 and 450-01-124382-214;

SENTENCES the accused as of the day of this judgment to a total of 5 years and 11 months’ detention; PROHIBITS the offender, under

section 161(

d) Cr. C., for a period of 7 years, from using the Internet or any other digital network, except if supervised by a responsible adult aware of his conviction. The offender is also prohibited from accessing any content in violation of the laws in force; ORDERS the offender to promptly submit to the taking of samples of bodily substances reasonably required for the purpose of forensic DNA analysis, in accordance with

section 487.051 Cr. C. for all the counts; ORDERS the accused, under sections 490.012 [52] and 490.013(2)(

b) Cr. C., to comply with the Sex Offender Information Registration Act for a period of 20 years; PROHIBITS the accused, under sections 109(1)(

a) and 109(2) for a period of 10 years starting when his prison term has ended, from possessing any firearm, cross-bow, restricted weapon, ammunition or explosive substance and for life from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition; ORDERS the material seized by the police to be forfeit as offence-related property; EXEMPTS the offender from paying the compensatory surcharge. __________________________________ BENOIT GAGNON, J.C.Q. Mtre Véronique Gingras-Gauthier Counsel for the prosecution Mtre Samuel Bouchard Counsel for the accused Date of hearing: October 10, 2022, and February 21, 2023