HER MAJESTY THE QUEEN — v. —, 2022 ONCJ 114

CITATION : R. v. Elkaderi , 2022 ONCJ 114 DATE : March 17, 2022 ONTARIO COURT OF JUSTICE Old City Hall - Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — MOHAMMED ELKADERI ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) For the Crown P. Santora For the Defendant R. Timol Heard: February 4, 2022 REASONS for SENTENCE RUSSELL SILVERSTEIN, J.: A. INTRODUCTION [ 1 ] On June 25, 2021, Mr. Elkaderi pleaded guilty before me to one count of possession of child pornography and one count of distributing child pornography.

The Crown has proceeded by indictment. [ 2 ] The case was then adjourned for sentencing pending the preparation of a presentence report. [ 3 ] Submissions on sentence were made on February 4, 2022. Mr. Timol brought a constitutional challenge to the statutory minimum sentences of one year for distribution of child pornography and possession of child pornography. While considering the appropriate sentence I determined that the low end of the range of the concurrent sentences I was considering was greater than one year. I notified the parties of this determination on March 3, 2022.

As a result, no submissions were made on the constitutional issue. See R v Lloyd , 2016 SCC 13 . B. THE CIRCUMSTANCES OF THE OFFENCE

[ 4 ] An agreed statement of fact was filed as an exhibit on this sentencing. It is succinct and is attached to these reasons as Appendix “A”. [ 5 ] For over three years Mr. Elkaderi, under more than one pseudonym, surfed the dark web, in search of, and trading, links and photos devoted to and displaying child pornography. When he was arrested, his computer contained 486 unique child porn images and 50 unique child porn videos, as well as numerous chats related to the online exchange of child pornography. C. THE CIRCUMSTANCES OF THE OFFENDER [ 6 ] Mr.

Timol’s submissions and the presentence report inform me that Mr. Elkaderi is 24 years old. He was born in Canada but spent much of his youth with his parents and sister in Saudi Arabia and Dubai, returning to Canada in 2016. He currently resides in Mississauga with his mother and sister. His father remains overseas. Mr. Elkaderi received a Bachelor of Business Administration in 2021 from the University of Toronto. He is not currently employed. He has no criminal record. [ 7 ] Mr. Elkaderi has consulted with two mental health professionals since his arrest. [ 8 ] He consulted with a psychiatrist, Dr.

Derek Pallandi, once, on October 30, 2020, for 2 ½ hours. According to Dr. Pallandi’s December 2020 report, Mr. Elkaderi reported no prior diagnoses of mental illness, although he reported a history of learning difficulties, feeling lonely, depressed and sometimes suicidal. There is no reported history of the use of alcohol or illicit drugs. He has never been involved in an intimate relationship. [ 9 ] Dr. Pallandi concludes, based on Mr. Elkaderi’s self-report and his review of the Crown’s disclosure package, that Mr. Elkaderi has a sexual interest in underaged children, yet Dr.

Pallandi cannot give an affirmative diagnosis of a “sexological” disorder in the absence of phallometric testing, which it appears was not conducted. [ 10 ] Dr. Pallandi cites research that suggests that there is generally a low rate of recidivism among first time child pornography offenders and notes that he found nothing in Mr. Elkaderi’s presentation to suggest that he would not conform to that average expectation of non-recidivism. [ 11 ] In May 2021, Mr. Elkaderi sought treatment with Rob Peach, a clinical social worker specializing in sexual disorders. By the time of Mr.

Peach’s report, dated January 2022, Mr. Elkaderi had seen Mr. Peach on 32 occasions. [ 12 ] Mr. Peach notes Mr. Elkaderi’s understanding and remorse. In Mr. Peach’s opinion, at the time of his report Mr. Elkaderi was no longer in need of therapy, despite Mr. Elkaderi’s continuing commitment to ongoing therapy. D. THE POSITION OF THE PARTIES [ 13 ] Ms. Santora, for the Crown, seeks a sentence of three years. She also seeks various routine ancillary orders. [ 14 ] Mr.

Timol urged me to consider a non-custodial sentence or a custodial sentence below the one-year minimum and to entertain a constitutional challenge to the statutory minimum sentences. Implicit in his submissions is the request to sentence Mr. Elkaderi as leniently as possible. E. THE PRINCIPLES OF SENTENCING AND THEIR APPLICATION [ 15 ] According to s. 718 of the Criminal Code , the "fundamental purpose" of sentencing is to contribute to "respect for the law and the maintenance of a just, peaceful and safe society" by imposing "just sanctions" that have one or more of the following objectives, namely: (

a) to denounce unlawful conduct; (

b) to deter the offender and others from committing offences; (

c) to separate offenders from society where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community. [ 16 ] Further, according to s. 718.1 of the Code, the "fundamental principle" of sentencing is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender." [ 17 ]

Section 718.2 of the Code also dictates that, in imposing sentence, the court must also take into account a number of principles including the following: • A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; • A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; • Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; • An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and, • All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [ 18 ]

Section 718.01 further mandates that: “when a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.” The possession and distribution of child pornography are considered such offences: R. v. Inksetter , 2018 ONCA 474 , at para. 3 .

(

a) Aggravating Factors [ 19 ] The most aggravating factor is the length of time that Mr. Elkaderi indulged in the exchanging and viewing of child pornography. For over three years he helped fuel this pernicious industry, victimizing children along the way. The collection of child pornography found on his devices is significant. (

b) Mitigating Factors [ 20 ] There are several mitigating circumstances in Mr. Elkaderi’s case. [ 21 ] His child pornography collection is not as depraved as some child pornography seen in our courts. He is a youthful first offender and entered an early guilty plea. He demonstrates good insight into his depraved desires and his criminal behaviour. His guilty plea and his early and enthusiastic participation in counselling speak to his remorse and his commitment to avoiding re-offending. He enjoys strong family support. [ 22 ] There is some evidence as concerns Mr.

Elkaderi’s low future risk to children, and a low risk that he will re-acquire child pornography. Dr. Pallandi cites research about how most child pornography first offenders do not re-offend or go on to sexually touch children. According to Dr. Pallandi, Mr. Elkaderi is more like those who do not re-offend than those who do. [ 23 ] Although I do not consider this a strong mitigating circumstance, it must be noted that Mr. Elkaderi has suffered significant shame because of this matter. (

c) The Caselaw [ 24 ] Possession of child pornography is a serious crime. It is harmful to children and society. As McLachlin J. said in R. v. Sharpe , 2001 SCC 2 at para. 158 : 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. [ 25 ] Denunciation and general deterrence are the primary considerations in the sentencing of offences involving child pornography. The incidence of such offences is increasing, and sentences imposed in today’s jurisprudence are generally more severe than they once were. R. v.

Inksetter , 2018 ONCA 474 ; R. v. J.S. , 2018 ONCA 675 . [ 26 ] As Hoy A.C.J.O. points out in Inksetter , supra, at para. 17 , referring to R. v. Lacasse , 2015 SCC 64 at para. 6 : “The courts have very few options other than imprisonment to achieve the objectives of denunciation and general deterrence.” [ 27 ] The parity principle notwithstanding, the Supreme Court has made it clear in R. v. Friesen , 2020 SCC 9 that the range of sentences for sexual offences against children must be increased.

New knowledge of the impact of child pornography and offences of violence against children, as well as the proliferation of such crimes shows that more severe punishment is required to achieve the primary goals of sentencing in such matters, i.e., denunciation and deterrence. Sentences for sex offences against children prior to Friesen should not overly constrain sentencing judges. [ 28 ] Because offences of this nature are all too common, there exists a vast array of sentencing precedents. Some of those cases are referenced in a

summary provided in Ms. Santora’s materials. I have considered them, and they provide helpful guidance on where along the sentencing continuum lies Mr. Elkaderi. A copy of that

summary is attached to this judgment as Appendix “B”. F. CONCLUSION [ 29 ] There is no denying the seriousness of Mr. Elkaderi’s conduct. Having reviewed the large body of caselaw dealing with sentencing offenders such as Mr. Elkaderi, applying the principles of sentencing set out above, I conclude that the appropriate sentence for Mr. Elkaderi is imprisonment for 20 months. I will also impose two years of probation that includes ongoing counselling, and some restrictions as concerns contact with children.

I will hear further submissions from counsel as to the fine details of the probation order, as well as the terms of the order under s.161. Released on March 17, 2022 Justice Russell Silverstein Appendix “A”

The following facts are agreed as between the Crown and the Defendant: 1. On August 16, 2019 Det. Cst. Janelle Blackadar received information from a foreign intelligence service via the RCMP’s National Child Exploitation Crime Centre that a user named “loverobbie” using IP address 99.245.251.106 had accessed a child abuse and exploitation site (Site 1) on May 1, 2019 at 4:43pm. 2.

Site 1 was located on the dark web and had an explicit focus on the facilitation of sharing child abuse material (images, links, and videos); with a further emphasis on BDSM (bondage domination and submission and sadomasochism), hurtcore (common term for child pornography where the child appears to be in distress including screaming or crying), gore and death related material. a. The username loverobbie was registered on site 1 on April 5th, 2018 and was last active July 23rd, 2019. This site was unstable for a few months before it was accessible on approximately August 15th, 2019. b.

The user loverobbie posted 26 messages on this site which included comments and child sexual abuse material. 3. The username loverobbie was known to Det. Cst. Blackadar from prior investigations of a different darkweb site (Site 2). The sole purpose of this site was child exploitation both in text- based topics but also hosting images and videos of child exploitation and child pornography. a. The username loverobbie was registered on Site 2 on October 7th, 2016 and was last active on June 1st, 2019. b. This site became defunct on or around June 5th, 2019. c.

The user loverobbie posted over 600 times on this site which included comments as well as links to media. 4. Det. Cst Blackadar observed several posts loverobbie made on site 2 where he references his sexual attraction to a person known as the boy model Robbie: a. On February 22, 2019 a post with an image link which brought her to an image hosting site where she observed a computer image depicting an adult male anally penetrating prepubescent boy under the age of 18 years with long hair. b.

She also observed that loverobbie posted a reply to the message on February 22nd, 2019 at 15:26 hrs UTC as follows: "Oh my god Yes please!!!! Robbie getting fucked I wouldn't mind some thick black cock pushing against my cunt either! But ROBBIE IS SOOOOO FUCKING HOTTT". c. On May 30th, 2019 at 7:00pm loverobbie posted three links with the comment, "FUCKING HELL THESE LOOK SOO GOOD". Det. Const.

Blackadar was only able to access one of the links which led to an image hosting site with a close up image of the anal region of a prepubescent boy under the age of 18 years with what appears to be ejaculate coming from the anus. An adult hand is visible on the child's buttocks. d. On June 1st, 2019 "He makes me get a swirly feeling in my tummy .... l love him still". He then posted links to media. She accessed the link that he had posted which brought her to an image hosting site that was still accessible.

She observed the image to depict a prepubescent boy with long hair, naked; standing with a small cloth stretched between his legs almost as if towelling himself off. This is the same boy described above in subparagraph (a) 5. On April 20th, 2019 loverobbie posted two image links on another dark web site with a focus on child pornography (Site 3). Det. Const. Blackadar was able to access these links which led to an image hosting site where she was able to download two images of the same boy known as Robbie. The images depict the boy who is naked, prepubescent partially seated with his legs spread. 6.

On August 19, 2019 Thomas Nairne of the RCMP provided further information that IP address 99.245.251.106 was also involved in a report of contraband material sent in by the Kik mobile chat platform. 7. Kik reported that on May 23rd, 2019 the user “gay_bumholeguy” posted the image named Image-gay_bumholeguy_dxo- UPLOADIP-99.245.251.106-UPLOADTIME-2019-05-23- 1558628381240.UTC.png. a. This file depicts a prepubescent male under the age of 18 years naked standing with an erect penis. There is also another child in the

image with long hair but is only visible from the shoulders up. This child has their mouth placed over the other child's penis. b. This is an automated naming convention of the Kik illegal material detection service. The number contained in this file (1558628381240) is a Unix Epoch-timestamp that resolves to Thursday, May 23, 2019 4:19:41.240 PM GMT. 8. The user gay_bumholeguy was registered to Kik on April 17, 2018 using an Android Samsung S6 phone under the first name “Gabs” and an email address of [email address redacted].com.

There were approximately 70 logins by the user gay_bumholeguy between April 21st, 2019 and May 23, 2019 all which were from the IP address 99.245.251.106. 9. On September 30, 2019 Justice Crawford granted a production order for subscriber records from Rogers Communications Canada for IP address 99.245.251.106 on February 22, May 1, May 23, and May 30, 2019. 10. On the above dates the IP address was subscribed to by Andalib Elkaderi of [address redacted] apartment 3034 in Mississauga with a phone number of [phone number redacted] and an email address of [email address redacted].com.

Rogers Communications Canada Inc also provide the modem serial number and MAC address and confirmed that the IP address was issued with a binding date of January 31st, 2019 12:59 hrs UTC to August 17th, 2019 at 15:46 hrs UTC. 11. Upon a search of the Ministry of Transportation’s records two people had active driver’s licenses associated to apartment 3034 of [address redacted] in Mississauga; Andalib Elkaderi and Mohammed Elkaderi. 12. Det. Const.

Blackadar viewed post activity by loverobbie on January 6, 2020 to confirm that the user was still active on these sites before seeking a search warrant for the address on January 15, 2020. 13. On January 15, 2020 members of the Toronto Police Service seized 12 electronic devices from [address redacted], Apt 3034 in Mississauga, pursuant to a search warrant issued by Justice of the Peace Crawford. 14. Mohammed Elkaderi is the owner and primary user of the devices, Andalib Elkaderi was unaware of his dark web activities as described here. 15.

Technical examination of the devices was undertaken by Detective Constable Kidd (99648), and it has been determined that they contain 486 unique images and 50 unique videos that meet the Criminal Code definition of Child Pornography, along with a number of chats related to the exchange of child pornography online. A representative sample will be filed with the court under seal for the purposes of sentencing.

Appendix “B” R v Friesen , 2020 SCC 9 Factors to consider in determining a fit sentence for sexual offences against children: (i)Likelihood to reoffend (ii)Abuse of a position of trust or authority (iii)Duration and frequency (iv)Age of the child victim (v)Degree of physical interference; and (vi)Victim participation

R v Kwok (ON SC), [2007] O.J. No. 457 (Sup Ct) Molloy J Sets out a list of mitigating /aggravating factors in child pornography cases Aggravating (

i) a criminal record for similar or related offences; (ii)whether there was also production or distribution of the pornography; (iii)the size of the pornography collection; (iv)the nature of the collection (including the age of the children involved and the relative depravity and violence depicted); (v)the extent to which the offender is seen as a danger to children (including whether he is a diagnosed pedophile who has acted on hisimpulses in the past by assaulting children); and (vi)whether the offender has purchased child pornography thereby contributing to the sexual victimization of children for profit asopposed to free downloads from the Internet Mitigating (i)the youthful age of the offender; (ii)the otherwise good character of the offender; (iii)the extent to which the offender has shown insight into his problem; (iv)whether he has demonstrated genuine remorse; (v)whether the offender is willing to submit to treatment and counseling or has already undertaken such treatment; (vi)the existence of a guilty plea; and (vii)the extent to which the offender has already suffered for his crime (for example, in his family, career or his community) R. v.

Parent, [2019] O.J. No. 6752 (C.J.) Plea 1505 images All forms of sexual activity, including bondage Ages 3-12 - Early guilty plea - Insight - Remorseful - Positive employment history - Support in community - Prior record for offences against children (2013: 1xluring; 1x151; 2x152) - Active distribution (trading) - Chatting with other offenders about sexual abuse of children - Not “mitigating” that his prior offences were hands-on and current offences were not 5 years (4.5 years on distribution and possession – concurrent – less PSC) (6 months consecutive for breach 161)

R. v. Joy (unreported, Jan 9, 2019) Plea 55 unique images (of which 11 were anime) 8 videos Nude posing along with sexual activity (no indication of bondage or bestiality) - Youthful offender - No criminal record - Cooperative re s. 21 report - Victim of sexual abuse as a child - Nature of the offence itself and depiction of explicit sexual activity - Distribution involved sending one image to one person - Moderate risk to reoffend 15 months less PSC (distribution), 10 months (possession) (consecutive) R. v. Longbone , [2018] O.J.

No. 7243 (C.J.) Plea 1967 images 1533 Videos All forms of intercourse –bondage - No criminal record - Early guilty plea - Cooperation with SBA - Addressed his substance abuse issues - Extensive chatting where he praised/encouraged self-admitted hands-on offenders - Size/nature of collection - Stored in a highly organized manner - Impact on victims (Vicky VIS) - Active encouragement of hands-on abuse enhances the sentence - Upper reformatory sentences now reserved mostly for possession alone cases 4 years R. v.

Seguin, 2018 ONCJ 725 Plea 47 images 2 videos Some images fell at most depraved end of spectrum - No criminal record - Guilty plea

- Remorseful - Assaulted while in custody (broken nose) - Sadistic chatting - Chatted with “mother” online about abuse of children - Encouraged sexual offences against children - Activity depicted within collection - Judge found that “sentence of over 3 years could have been justified” (para. 20) but respects position of Crown given resolution discussions Note: sentence for agree/arrange arguably should have been consecutive 3 years less time served (make available); 22 mos (possession) (concurrent) 18 months (agree/arrange) (concurrent) R. v.

Waite (unreported, June 6, 2018) Plea 2668 images 511 videos All forms of sexual activity, including bondage, with babies and young children - No criminal record - Youthful - Learning disorder (did not complete high school) - Mental health issues (anxiety) - Provided passwords to police (cooperative) - “heartfelt” remorse - No treatment in advance but committed to engaging in it - Organized collection - Chatting with like-minded offenders - Nature of collection - VIS from “Vicky” - Low risk to re-offend 2 years less day (distribution); 18 months (possession) (concurrent) 3 years probation R. v.

Schock , [2017] O.J. No. 7242 (C.J.) Plea 4506/1544 images 204/142 videos Children as young as 2 – all forms of intercourse –bondage and bestiality - No criminal record - Guilty plea

- Cooperative with SBA (though limited insight) - Family support - Youthful - Nature/size of collection - Continued drug use after arrest despite him indicating it was a partial cause of offending ****accused not engaged in any active chatting/trading ****accused had a sexual deviance package (though other than the inclusion of CP in these items the package itself would not be illegal ergo it did not aggravate the sentence in the manner suggested by some defence counsel - Accused not engaged in P2P but rather uploaded one image one time to an online pinboard 3 years (1 year for distribution plus two years consecutive for possession) R. v.

Lynch-Staunton , 2012 ONSC 218 Plea 2091 images 1763 stories 574 videos Very young children – intercourse of all forms – no bondage mentioned - No criminal record - Positive employment history - Family support - Beaten by inmates **no finding of sincere remorse **did not cooperate fully with SBA (refused phallometric testing) - Little insight - Very young children - Extent of sexual activity depicted - Extensive chatting in chatrooms ** pictures of his own children not for a sexual purpose so not considered aggravating - No credit given for extensive house arrest (554 days) because he could leave the home with his surety 5 years R v John 2017 ONSC 810 Woollcombe J (aff’d by R v John, 2018 ONCA 702 ) Trial 89 videos and 50 images Included penetrative activity between adults and children. 31 y/o

No Criminal Record Some insight into behaviour and willingness to undergo treatment. 10 Months R v Kingdon [2020] O.J. No. 1004 Latimer J Plea 8 images transmitted over a 5-month period 121 unique images, 61 videos 32 y/o No criminal record Pre-Friesen 15 Months R v Chislette 2018 ONCJ 218 Latimer J Plea 3555 images and 2155 videos on his devices. Included penetrative activity between adults and children 69 y/o No Criminal Record Up front counselling, apparent remorse Made an account on a commonly known child pornography sharing site and posted sexualized images and emailed files to an undercover officer.

Had material in a Dropbox account with other users. 18 Months (concurrent – possession and make available) *Crown asked for 18 months R v Pahle 2020 ONCA 725 9888 images of child pornography and at least one video of an infant being assaulted by penetration by a penis. No Criminal Record. Little insight or understanding. Low risk to reoffend. 35 y/o 15 Months