R. v. M.L., 2020 MBPC 30

CITATION: R. v. M.L. , 2020 MBPC 30 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) ) M. Donald and J. Koffman, for the Crown ) - and - ) ) M.L. ) ) ) A. Hodge, for the young person ) ) Judgment delivered: June 30, 2020 Restriction on publication: By court order under subsection 110(1) of the Youth Criminal Justice Act prohibits the publication of any information that may identify the young person having been dealt with under this Act. C.A. DEVINE, P.J. Introduction [ 1 ] M.L. has pleaded guilty to the offence of possessing child pornography between January 1 and May 22, 2019.

He was 16 years of age at the time. He is now 17 years old. The issue to be resolved in this case is the type of youth sentence I should impose under the Youth Criminal Justice Act ( YCJA ). The Crown argues that only a sentence which involves some time in custody can give effect to the need for denunciation and deterrence to be expressed in the extreme circumstances of the nature of the pornography that the young person possessed.

The Defence argues that the young person was a victim of online child luring before he started looking at child pornography and he did so at the invitation of an online predator, and that a period of probation will suffice to hold the young person accountable for the offence. The Crown is seeking a six-month custody and community supervision order, followed by a period of probation with protective and rehabilitative conditions. The Defence is seeking a probation order with protective and rehabilitation conditions. [ 2 ] M.L. has no youth record.

He has been on strict bail conditions since May 23, 2019, the day after his arrest. [ 3 ] The Crown proceeded by way of indictment. There is no mandatory minimum sentence for the offence of possession of child pornography when the offender is a young person. Issue [ 4 ] The main issue in this case is whether custody is necessary to satisfy the purpose and principles of sentencing under the YCJA . Factual Circumstances of the Offence and Arrest [ 5 ] Winnipeg Police Service received a tip from Cybertip, run by the Canadian Centre for Child Protection, about a collection of videos of child pornography in Winnipeg.

The Integrated Child Exploitation (ICE) Unit of the police entered into an investigation. Police obtained a production order requiring Shaw Communications to provide subscriber information relating to the activity of the IP address at the time the child pornography was downloaded. Once they determined that the IP address belonged to the young person’s father, police obtained a search warrant for the home the young person shares with his parents. Police came to the home just after 8:00 a.m. on May 22, 2019 to execute the search warrant. M.L. was home; his parents were at work.

Police seized computers and electronic devices and arrested M.L. He was taken to police headquarters and spoke with lawyers, two of whom were present when he gave a statement to police and admitted his involvement, including telling police that people he met online had sent him the videos. He told police he had an issue with child pornography and that he wanted help with the problem. His parents were contacted by police about his arrest. M.L. was taken to the Manitoba Youth Centre. He spent the rest of that day and night in custody and was released on an undertaking the afternoon

or evening of May 23, 2019. The Seriousness of the Offence [ 6 ] The Crown did not show the videos or images in court. He provided a graphic and detailed description of the pornography. I am satisfied that the detailed descriptions provided are adequate for me to determine a fit sentence (consistent with R. v. Swaby , 2017 BCSC 2020 at para. 110 ). In addition, Ms.

Koffman, co-counsel, advised that in her nine years prosecuting child pornography, she had not seen a more egregious collection, in terms of the very young ages of the victims, the number of times the images were viewed, and the collection being at the highest levels of severity on the Basov scale, that is, child sexual abuse material that involves penetration of a child’s body by adults, and material that involves sadism. [ 7 ] The collection consisted of 248 still images and 117 videos.

Twenty-two of the files were uploaded. [ 8 ] I warn anyone reading this judgement that this paragraph contains some descriptions of the content of the material. Even the general descriptions of the crimes shown on the videos and images are extremely shocking, depraved, violent and sadistic. The children ranged in age from infancy as young as two to three months old, to 12 years of age. The babies and children were raped by adults orally, vaginally and anally. One baby was crying while being orally raped by an adult male.

An 18-month old toddler was screaming while hanging by one foot and a masked adult female forced the baby to perform cunnilingus on her. Girls between the ages of nine and 11 years of age were tied in ropes. [ 9 ] The Canadian Centre for Child Protection no longer uses the language of “child pornography” to refer to what they more appropriately call “child sexual abuse material.” Actual children are sexually exploited and abused in the creation of “child pornography.” The law recognizes that child pornography where actual children are filmed and photographed is a record of crimes against those children.

For example, in the cases filed or referred to in this matter, judges have made the following statements that are representative of the current state of the law and thinking with respect to child pornography: There is no doubt that child pornography victimizes the children who are photographed or filmed. At a minimum, the children are exploited and very often are sexually abused as part of the image taking. ( R. v. G.(M.) , 2009 ONCJ 561 at para. 9 ) ……………..

I am satisfied that in cases such as this one, where the images possessed and made available involve sexual activities which are sexual assaults, it is appropriate for me to infer sufficient psychological harm to be bodily harm, therefore, conclude that custody is available under s. 39(1)(a). I find the making available and I would come to the same conclusion with a possession offence of child pornography includes an element of bodily harm, and thus meets the definition of violent offence. ( R. v. D.(G.) , 2017 CarswellOnt 6619 (ONCJ) at para. 30 ) [ 10 ] The seminal case dealing with child pornography is R. v.

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

Writing for the six-person majority, Chief Justice McLachlan stated: Parliament’s main purpose in passing the child pornography law was to prevent harm to children by banning the production, distribution and possession of child pornography, and by sending a 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”: House of Commons Debates, 3rd Sess., 34th Parl., vol. XVI, June 3, 1993, at p. 20328. . . .(at para. 34) . . .

The link between the production of child pornography and harm to children is very strong. The abuse is broad in extent and devastating in impact. The child is traumatized by being used as a sexual object in the course of making the pornography. The child may be sexually abused and degraded. . . (at para. 92) [ 11 ] Concurring on the issue of the harm caused by child pornography, Justice L’Heureux-Dube wrote for the three-person minority: . . . Child pornography is used to fuel the fantasies of paedophiles and is also used to facilitate their exploitation of children.

It hinders children’s own self-fulfilment and autonomous development by eroticising their inferior social, economic and sexual status. It reinforces the message that their victimization is acceptable. In our view, that message denies children their autonomy and dignity. . . (at para. 185) [ 12 ] In this case, the videos are real-life films of babies and young children being abused, assaulted, degraded and hurt in the most obscene and evil ways by adults. The images are stills of the same.

Actual babies and children were hurt in the creation of this material. [ 13 ] Actual children and babies continue to be abused every time someone gives witness to their abuse and degradation. The jurisprudence recognizes the continuing abuse that children experience as videos and images of them proliferate. It is safe to say that in 2001 when the Supreme Court of Canada decided Sharpe , they could not have predicted the tidal change brought by the internet. The internet has propagated violent material victimizing children at an unprecedented rate. In the recent decision of R. v.

Friesen , 2020 SCC 9 , the Supreme Court addressed this new reality: New technologies have enabled new forms of sexual violence against children and provided sexual offenders with new ways to access children. Social media provides sexual offenders “unprecedented access” to potential child victims ( R. v. J. (K.R.) , 2016 SCC 31 , [2016] 1 S.C.R. 906 (S.C.C.) , at para. 102 ). The Internet both directly connects sexual offenders with child victims and allows for indirect connections through the child’s caregiver.

Online child luring can be both a prelude to sexual assault and a way to induce or threaten children to perform sexual acts on camera ( see R. v. Woodward , 2011 ONCA 610 , 107 O.R. (3d) 81 (Ont. C.A.) ; R. v. Rafiq , 2015 ONCA 768 , 342 O.A.C. 193 (Ont. C.A.) ). The Internet has also “accelerated the proliferation of child pornography ” ( R. v. Morelli , 2010 SCC 8 , [2010] 1 S.C.R. 253 (S.C.C.) , at para. 114 , per Deschamps J.)

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

C.A.) [hereinafter S. (J.)], at para. 120). (at paras. 47 – 48) (Emphasis added.) [ 14 ] In addition to the substantial physical and psychological harm caused to children in the production of child pornography and the ongoing harm that the presence of abuse materials on the internet causes, the courts have discussed several other forms of harm connected with the possession of child pornography: (1) child pornography promotes cognitive distortions . . . exposure to child pornography may reduce paedophiles’ defences and inhibitions against sexual abuse of children.

Banalizing the awful and numbing the conscience, exposure to child pornography may make the abnormal seem normal and the immoral seem acceptable. ( Sharpe , at paras. 86 and 88 per McLachlan, CJ)

(2) It fuels fantasies that incite offenders . . . Some studies suggest that child pornography, like other forms of pornography, will fuel fantasies and may incite offences in the case of certain individuals. This reasoned apprehension of harm demonstrates a rational connection between the law and the reduction of harm to children through child pornography. ( Sharpe , at paras. 86 and 89 per McLachlan, CJ) (3) it is used for grooming and seducing victims . . .

The evidence is clear and uncontradicted. “ Sexually explicit pornography involving children poses a danger to children because of its use by pedophiles in the seduction process” (para. 23 of the trial decision). The ability to possess child pornography makes it available for the grooming and seduction of children by the possessor and others. ( Sharpe at paras. 86 and 92 per McLachlan, CJ)

(4) The very existence of child pornography endangers and undermines the integrity and dignity of children The very existence of child pornography, as it is defined by s. 163.1(1) of the Criminal Code , is inherently harmful to children and to society. This harm exists independently of dissemination or any risk of dissemination and flows directly from the existence of the pornographic representations, which on their own violate the dignity and equality rights of children.

The harm of child pornography is inherent because degrading, dehumanizing, and objectifying depictions of children, by their very existence, undermine the Charter rights of children and other members of society. Child pornography eroticises the inferior social, economic, and sexual status of children. It preys on preexisting inequalities. ( Sharpe , at para. 158 per L’Heureux-Dube, J)

(5) Attitudinal harm . . . child pornography creates a type of attitudinal harm which is manifested in the reinforcement of deleterious tendencies within society. The attitudinal harm inherent in child pornography is not empirically measurable, nor susceptible to proof in the traditional manner but can be inferred from degrading or dehumanizing representations or treatment ( Sharpe , supra at para. 160 per L’Heureux- Dube, J.)

(6) The possession of child pornography creates and expands the market for it. 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. Criminalizing possession may reduce the market for child pornography and the abuse of children it often involves. The link between the production of child pornography and harm to children is very strong. The abuse is broad in extent and devastating in impact. The child is traumatized by being used as a sexual object in the course of making the pornography. The child may be sexually abused and degraded.

The trauma and violation of dignity may stay with the child as long as he or she lives. Not infrequently, it initiates a downward spiral into the sex trade. Even when it does not, the child must live in the years that follow with the knowledge that the degrading photo or film may still exist, and may at any moment be being watched and enjoyed by someone. ( Sharpe , at para 92 , per McLachlan, CJ.) [ 15 ] The Crown filed the Manitoba Court of Appeal case of R. v. Basov , 2015 MBCA 22 , which sets out the classification system used to determine the level of severity of child pornography: (

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

v) sadism or bestiality [ 16 ] The collection of images and videos in M.L.’s possession were of the most severe classifications, involving penetrative sexual activity between children and adults, and sadism. [ 17 ] There were 117 videos and 248 images. This is a sizeable collection. There were also over 1,000 images that were inconclusively child pornography and two images involving bestiality with an adult woman. The latter do not form part of the offence charged. The cases I reviewed involved some collections that were smaller and some that were larger. Personal Circumstances of M.L.

[ 18 ] M.L. is an only child. He and his parents immigrated from the Philippines in 2009 when M.L. was six years old. His parents are hard-working people, holding more than one job. M.L. was home alone a lot. [ 19 ] As a child, he enjoyed school at his elementary school and had no problems. In middle school he started being bullied; although he still attended school regularly, he tried to keep to himself. When he moved to high school, the bullying worsened. The bullying became so intolerable that he started missing school. He was bullied verbally and physically. He withdrew.

That is when he started staying at home while his parents went to work. His self-confidence and self-worth plummeted. He became completely socially isolated at home on the computer. Although his parents had several meetings at the school, none of the interventions stopped the bullying. By Grade 11, he stopped attending school. [ 20 ] He started looking at adult pornography at the age of 14. At some point when he was 15 years old, he started having chats with adult men online. Some of the adult predators were engaged in luring M.L., asking him to have sex.

One of the predators encouraged him to send photographs of himself naked, photographs of his penis and photographs of him touching himself. M.L. described to the writer of the presentence report that he had a virtual relationship that was sexual in nature with “Angelo.” They exchanged information about various pornographic websites. M.L. made videos of himself engaging in sexual activity, at the behest of the online predator.

These videos constitute pornography, with M.L. as the subject. [ 21 ] One day, M.L. was sent a folder of child pornography images and videos by “Angelo.” The presentence report states that “At first glance, he knew it was wrong to view the images and videos, however was curious and started watching the videos.” [ 22 ] M.L. has moved schools in the past year and his life has improved. There is no bullying, he has started to feel more confident, he has started to develop peer relationships and he has adult supports at school.

He expressed relief to the presentence report writer that he had found trusted adult supports at school in whom he could confide. As well, he shared with the presentence report writer that one of his bail conditions that prohibits the possession of electronic devices forced him out of the house and into community events and community centres, which has improved his mood and self-esteem. [ 23 ] He began attending the new, alternative school in September 2019 where he was working on Grade 12. His attendance was perfect.

The smaller class size, an adaptive learning curriculum and having a full-time educational assistant contributed to his success. I learned at the sentencing hearing earlier this month that during COVID-19, the school has been dropping his school work at his home and he has been keeping up. At that time, the expectation was that he would graduate at the end of this month. [ 24 ] While on bail, he has also started working part time in the same bakery as his mother works and he was working on obtaining his driver’s licence. [ 25 ] M.L. was referred for mental health services in middle school.

Both the school social worker and school division psychologist reported that several interventions planned for M.L. were ineffective due to parental support. [ 26 ] They also reported cognitive testing put M.L. as having a low average IQ. Most importantly, he had low scores in fluid reasoning and processing information which impacts his decision-making. [ 27 ] The presentence report also provided information that M.L. is not criminally oriented, nor is he at any risk for violence.

The presentence report writer also stated in his report: However, given negative experiences related to bullying leading to a negative perception of self, which resulted in using negative coping strategies such as social isolation, engaging in virtual friendship on social media platforms that ultimately led to his current charges before the court. [M.L.] is yet to comprehend the impact of his behavior on his sexual development and orientation. [ 28 ] Dr. Zoe Therrien conducted a court-ordered forensic assessment of M.L.

She reported that he presented as a young person with emotional disturbance related to “past difficult life events including periods of significant bullying in the last years.” Dr. Therrien also reported that M.L. continues to think about the bullying and startles easily when he is at school, is often uncomfortable around peers, and tends to be very observant of others to ensure his safety. [ 29 ] He was hesitant with both the presentence report writer and the psychologist to discuss his offending behavior. Dr.

Therrien stated: [M.] presents with some risk factors including a reported history of preoccupation with sexual thoughts, an indication of some interest in child pornography material as well as a lack of intimate peer relationships. At this time, I am particularly concerned that [M.] as well as his parents seems to deny that there are any potential risks of re-offending and that there does not seem to be a long-term prevention plan in place. In addition, it is concerning that [M.] seemed to have very limited insight into the factors that contributed to his decision- making.

It is strongly recommended that [M.] participate in treatment in order to better delineate the factors that contributed to his offending, to assist in relapse prevention planning and to engage in ongoing discussion regarding sexual education. [ 30 ] It is clear from the presentence report and the psychological report that M.L. accepts responsibility for his offence, yet has not communicated any insight into the offence nor its severity. Nonetheless, the presentence report writer found him to be a low risk to reoffend and concluded he was an appropriate candidate for community supervision.

Aggravating and Mitigating Factors [ 31 ] The aggravating factors in this case are the severe nature of the child pornography, Levels 4 and 5 on the Basov scale, the very young ages of the victims, the relatively large number of images and videos in M.L.’s computer, and the fact that he possessed the material for some time. It was not an isolated, single occasion that he then resiled from. There were also 22 videos that had been uploaded, which makes them available to others to view. [ 32 ] The main mitigating factor is M.L.’s guilty plea. He was cooperative with the police throughout. He has accepted full

responsibility. Although it is apparent he was first the victim of child luring on the internet, he did not attempt to blame someone else for his offending. The guilty plea demonstrates the acceptance of his culpability in committing the offence and allowing himself to be held accountable for his offence. It is the first and major step in achieving the purpose of the YCJA . The other mitigating factor is his complete compliance with his release conditions, which he has followed without a breach for over a year, since May 23, 2019.

The Purpose and Framework for Sentencing Under the YCJA [ 33 ] The Youth Criminal Justice Act came into force in 2003. It represents a complete restructuring and approach to crimes committed by young people, in part to address the over-incarceration of young people under the previous Young Offenders Act . (Department of Justice Canada, 2003. The Youth Criminal Justice Act:

Summary and Background . Ottawa: Department of Justice Canada) The

Preamble to the YCJA contains this concern: . . . And WHEREAS Canadian society should have a youth criminal justice system that commands respect, takes into account the interests of victims, fosters responsibility and ensures accountability though meaningful consequences and effective rehabilitation and reintegration, and that reserves its most serious intervention for the most serious crimes and reduces the over-reliance on incarceration for non-violent young persons; [ 34 ] The principles and objectives of sentencing for young people are very different from the principles and objectives of sentencing for adults.

Section 50 of the YCJA explicitly states that

section 718 of the Criminal Code does not apply to youth sentencing. So, while the primary sentencing objectives engaged when sentencing an adult for possession of child pornography is usually denunciation and deterrence, it is not as clearly defined when sentencing a youth for the same offence. [ 35 ] The presumption in the YCJA is for non-custodial sentences. Custodial sentences are not even permitted, except in certain circumstances set out in

section 39 of the Act . [ 36 ] The framework for sentencing young people is very complex and is set out in sections 3 and 38 of the YCJA .

Section 3 sets out the policy for Canada with respect to young persons. The provisions that are relevant to sentencing young people are highlighted below: 3(1) Policy for Canada with respect to young persons The following principles apply in this Act: (

a) the youth criminal justice system is intended to protect the public by: (

i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person, (ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and (iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour, (

b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following: (

i) rehabilitation and reintegration, (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity, (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected, (iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and (

v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time, (

c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should: (

i) reinforce respect for societal values, (ii) encourage the repair of harm done to victims and the community, (iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person’s rehabilitation and reintegration, and (iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements, and (

d) special considerations apply in respect of proceedings against young persons and, in particular,

(

i) young persons have rights and freedoms in their own right, such as a right to be heard in thecourse of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and youngpersons have special guarantees of their rights and freedoms, (ii) victims should be treated with courtesy, compassion and respect for their dignity and privacy andshould suffer the minimum degree of inconvenience as a result of their involvement with the youth criminal justice system, (iii) victims should be provided with information about the proceedings and given an opportunity toparticipate and be heard, and (iv) parents should be informed of measures or proceedings involving their children and encouraged tosupport them in addressing their offending behaviour. 3(2)Act to be liberally construed This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out insubsection (1). [37]

Section 38 of the YCJA sets out the purpose and principles for sentencing young people. It creates a sentencing frameworkwhich is very different from the sentencing framework set out in

section 718 of the Criminal Code for adults. [38] Subsection 38(1) provides that the purpose of sentencing is to hold a young person accountable for an offence through theimposition of just sanctions that: − have meaningful consequences; and − promote his or her rehabilitation and reintegration into society, − thereby contributing to the long-term protection of society. [39] The Ontario Court of Appeal in R. v.

O. (A.) (2007), 2007 ONCA 144 , 218 C.C.C. (3d) 409 explained how a judge isto determine whether a sentence will hold a young person accountable: ...”for a sentence to hold a young offender accountable in the sense of being meaningful it must reflect, as does a retributive sentence,“the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by theoffender, and the normative character of the offender’s conduct”. We see no other rational way for measuring accountability.

The need to consider the normative character of an offender’s behaviour necessarily requires the court to consider societal values. (atparas. 47 – 48) [40] It should be noted that the protection of the public is a long-term outcome or result of a youth sentence, not an immediateobjective of a sentence. The Supreme Court of Canada held in R. v.

BWP; BVN, 2006 SCC 27 , [2006] SCJ No. 27 (SCC) that“protection of the public” is not an immediate objective of sentencing, but rather the long-term effect of a successful youth sentence. [41] Subsection 38(2) provides that a judge sentencing a young person shall determine the sentence in accordance with theprinciples in

section 3 above, and the following principles: A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles setout in

section 3 and the following principles:

a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who hasbeen convicted of the same offence committed in similar circumstances;

b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offencecommitted in similar circumstances;

c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for thatoffence; and

d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders.

e) subject to paragraph (c), the sentence must

i) be the least restrictive sentence that is capable of achieving the purpose set out in section (1), ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her intosociety, and iii) promote a sense of responsibility in the young person, and an acknowledgement of the harmdone to victims and the community.

f) subject to paragraph (c), the sentence may have the following objectives: i). to denounce unlawful conduct, and

ii). To deter the young person from committing offences [ 42 ] The objective is to hold young persons accountable . Subsection 38(2) requires that an accountable sentence is achieved by determining it in accordance with the principles set out in

section 3, which are further detailed in subsection 38(2). The means by which that objective is to be achieved is to impose just sanctions that impose meaningful consequences and promote the young person’s rehabilitation and reintegration. A sentence that complies with these requirements can make a contribution to the long-term protection of the public. [ 43 ] Paragraph 38(2)(

c) requires that the sentence be proportionate to the seriousness of the offence and degree of responsibility of the young person for the offence. [ 44 ] Paragraph 38(2)(

d) provides that all available sanctions other than custody should be considered for all young persons. [ 45 ] Read in its totality, the YCJA emphasizes the use of non-custodial sentences rather than custody to hold a young people accountable. [ 46 ] Although treatment and rehabilitative services are usually available in custody, the negative influences of other youths with a history of offending and the fact that the youth’s problems cannot be addressed in their own environment and the context in which they occur, result in it being more difficult to rehabilitate youths in custody than in community-based treatment and therapy.

This is even more so during COVID-19. [ 47 ] Subsection 39(1) prohibits the court from imposing custody unless the case meets one of four criteria that generally restrict custody to violent offenders and serious repeat offenders. Subsection 39(2) not only requires the court to consider all reasonable alternatives to custody, it prohibits the court from imposing custody unless it has considered all reasonable alternatives to custody and has determined that there is no reasonable alternative that is in accordance with the purpose and principles of sentencing. [ 48 ] Subparagraph 38(2)(e)(

i) provides that, within the limit of a proportionate response to the offence, the sentence must be the least restrictive sentence that is capable of achieving the purpose of sentencing. In considering possible proportionate sentences, the court must choose the least restrictive alternative. [ 49 ] Amendments to the YCJA came into force on October 23, 2012. An amendment to subsection 38(2) allows a court to consider the objectives of specific deterrence and denunciation:

f) subject to paragraph (c), the sentence may have the following objectives:

i) to denounce unlawful conduct, and ii) to deter the young person from committing offences. [ 50 ] This amendment is permissive; it does not require the court to take specific deterrence and denunciation into account.

Moreover, these objectives are limited by proportionality set out in paragraph 38(2)(c). [ 51 ] In addition to being limited by the mandatory principle of proportionality, a sentence that has an objective of deterrence or denunciation must also be consistent with other mandatory principles in subsection 38(2), including the requirements that the sentence must: − be the least restrictive; − promote rehabilitation and reintegration; − promote a sense of responsibility and an acknowledgement of the harm done; − not be more severe than the sentence that an adult would receive for the same offence; and − be similar to youth sentences in the region in similar cases. [ 52 ] Thus, a sentence that promotes deterrence but does not promote the rehabilitation of the young person would not be in accordance with the purpose of sentencing under the YCJA . [ 53 ] The objective of specific deterrence does not necessarily lead to a more punitive sentence.

A youth may be discouraged from committing further offences through many of the sanctions available under the YCJA , such as community service. [ 54 ] Subsection 38(3) provides that, in determining a youth sentence, the court shall also take into account: (

a) the degree of participation by the young person in the commission of the offence; (

b) the harm done to victims and whether it was intentional or reasonably foreseeable; (

c) any reparation made by the young person to the victim or the community; (

d) the time spent in detention by the young person as a result of the offence; (

e) the previous findings of guilt of the young person; and (

f) any other aggravating or mitigating circumstances related to the young person or the offence that are relevant to the purpose and

principles set out in

section 38. Application of YCJA Sentencing Principles in this Case [ 55 ] Starting from the presumption of a non-custodial sentence, I must determine whether such a sentence would hold M.L. accountable for his offence by imposing a meaningful consequence that promotes his rehabilitation and reintegration into society, contributing to the long-term protection of the public. [ 56 ] Is a non-custodial sentence a proportionate sentence in this case? The seriousness of the crime with its aggravating features has been discussed above.

The material seized was the most severe and accordingly, likely the most harmful, that has been seen by a senior Crown Attorney in this province. [ 57 ] Although the Crown argued that the moral culpability of M.L. was high, I disagree. It is true that after having seen these very disturbing images and videos, rather than deleting them, M.L. kept them and collected a significant number of the materials over five months.

It is also true that even though he did not seek out child pornography and even though he knew it was wrong, by not deleting it, he intentionally took the risk of possessing something he knew was wrong. He knew it was wrong because the material showed the physical and sexual abuse of babies and children, which is abhorrent and violates the most basic human norms. At the same time, we know that M.L. was a shy, isolated, only child and immigrant who had been verbally and physically bullied at school for about five years beginning in middle school. He increasingly withdrew from peer contact and from school.

He suffered depression, suicidality and eventually stopped going to school altogether. While his parents are obviously hard-working people who came to Canada to have a better life for their family, it appears that they were largely unable to provide him the mental health support the school and school division had arranged and that he likely desperately needed. By Grade 11 he stopped going to school. His parents were apparently unaware. He has a low average IQ and has deficits in his ability to reason fluidly and process information.

His last year in school involved a full time educational assistant providing him an adaptive curriculum. [ 58 ] This constellation of factors led him to isolate and engage in the deceit that he was going to school. Instead, he was hiding in his bedroom and spending hours and hours on the computer. [ 59 ] His isolation and life on the internet brought him to the attention of on-line predators. Soon, he was victimized sexually – sending pictures and videos of himself engaging in sexual activity.

One day the predator “Angelo” sent him child pornography. [ 60 ] It is not difficult to see the diminished moral culpability of M.L. during the period of offending, January to May 2019. [ 61 ] He was a victim before he committed this offence. School could not help him. His parents could not help him. He fled the abuse at school and then became victimized in another way.

It is sad and illustrative of his state of mind that when the police came and arrested him, he remained alone, his parents did not come to his aid, and he told the police that he had an issue with child pornography that he wanted help with. [ 62 ] There are no reported sentencing decisions from Manitoba involving a youth sentenced for possession of child pornography. Defence counsel filed some cases from Ontario, but mainly on the issue of whether custody could be imposed in this matter, pursuant to

section 39 of the YCJA . [ 63 ] I have also considered M.L.’s degree of participation in this offence. I cannot overlook the precursor to his involvement in the offence as the victim of child luring and production of child pornography, while recognizing his ongoing participation in possessing the videos and images of other children. I recognize the harm done to the victims as I have outlined above. M.L. knew it was wrong. He had to have known that the children in the videos and images were hurt.

But clearly, he does not understand how his possession and viewing of the images after the children were already hurt, contributes to the ongoing victimization of children. I recognize that this is not the same as contact offences against children, where the exercise of determining foreseeability of harm is more straightforward. I also take into account that M.L. does not have a record of offences. He is a young person who is otherwise pro-social, law-abiding and does not use any alcohol, tobacco or drugs.

He is helpful at home and polite at school. [ 64 ] I also take into account that he was totally alone when police came to his home with a search warrant, searched the house, seized items, arrested him and took him to the police station. And then he was taking to the Manitoba Youth Centre where he spent the night in jail and had to appear in court the next day to apply for his release. His parents were at work. [ 65 ] This must have had a big impact on this young person. [ 66 ] I must consider all sanctions other than custody.

I must also consider the least restrictive sentence for M.L. that is capable of achieving the purpose of holding him accountable, that is most likely to rehabilitate and reintegrate him into society and promote a sense of responsibility in M.L. and an acknowledgement of the harm done to children and to the community. [ 67 ] That sentence is one that must include intensive therapy. M.L. requires sex offender treatment, not as a contact offender, but as a non-contact offender. He must learn how child pornography is harmful to children and to society.

He must receive therapy for his own victimization as a victim of bullying for a prolonged period, and he must receive therapy for his own victimization of on-line sexual predators. [ 68 ] He must also give back to the community in the form of community service. Sentence [ 69 ] I am satisfied that a non-custodial sentence and community work with strict conditions and directive rehabilitative measures properly balances the seriousness of the offence with M.L.’s degree of responsibility in committing it.

I am also satisfied that such a sentence will hold M.L. accountable and promote his rehabilitation and reintegration into the community, with the long term goal of protecting the public.

[ 70 ] The sentence will be a two-year period of supervised probation. M.L. has already been on strict bail conditions for the past year and has shown his ability to comply with those conditions. Moreover, he has shown himself to be amenable to assistance from helpful, skilled adults at his new school. The inability to access the internet has literally taken him out of his bedroom and into the world, improving his self-worth and self-confidence.

These are helpful markers for determining that his prospects for rehabilitation are quite good. [ 71 ] The conditions of his probation order are: − Report to Youth Probation Services within two days of this decision and after that as directed by your probation officer; − Seek and attend school or work regularly; − Attend, participate and complete sex offender therapy specific to viewing child pornography; − Attend, participate and complete therapy related to being a victim of bullying; − Attend, participate and complete therapy related to being a victim of on-line sexual predation; − Do not access or view child pornography or any pornography in any form; − Do not possess or use more than one cell phone and one computer, and provide the serial number, phone number and complete description of the device or devices to your probation officer; − Allow your probation officer or the police access to your electronic devices and allow them to monitor and search the said devices to ensure no pornography has been accessed on the devices; − Do not be with children under the age of 14 unless there is a responsible adult present; − Perform 240 hours of community service work within the two year probation period, 140 hours within the first year. [ 72 ] It seems that up until now M.L. has exhibited very little interest in discussing his offending behavior, delving into how it started and receiving therapy.

Part of it may be as a result of the norms within his family. But he is now 17. And he must do what this Court requires him to do. It is part of his sentence for committing a very serious offence. I echo the words of Judge Derrick (as she then was) in sentencing a young person of similar offences: “Y”, it is no longer an option for you to be disengaged from therapeutic interventions directed at helping you achieve positive mental health and re-connect with the world outside your bedroom. You must now realize that being avoidant hasn’t worked for you.

It is time to be motivated and determined and chart a new course for your life. ( R. v. Y , 2015 NSPC 66 at para 61 ) [ 73 ] If you breach any of the conditions of this probation order, you will face more charges and could be taken back to jail. If you do not get the therapy I have ordered it is likely that you will stay in jail. [ 74 ] The following ancillary orders are made: −

Section 51 mandatory two year weapons prohibition; − Subsection 487.051(1) DNA primary designated offence; you must provide a sample of your DNA to the police within 60 days of today. “Original signed by:” C.A. DEVINE, P.J.