R. v. Schofield, 2023 MBKB 127

Date: 20230913 Docket: CR 22-01-38775 (Winnipeg Centre) Indexed as: R. v. Schofield Cited as: 2023 MBKB 127 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: ) HIS MAJESTY THE KING, ) Dayna N. Queau-Guzzi ) for the Crown - and - ) ) Ethan J.

Pollock CODY LORNE SCHOFIELD, ) for Cody Lorne Schofield ) Offender. ) JUDGMENT DELIVERED ) ORALLY: ) September 13, 2023 Restriction on Publication : Pursuant to s. 486.4(3) of the Criminal Code , any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way . HARRIS j. introduction [ 1 ] Cody Lorne Schofield (Mr.

Schofield) has entered guilty pleas to three charges: • Possession of child pornography pursuant to subsection 163.1(4) of the Criminal Code , R.S.C., 1985, c. C-46 (the Code ); • Make (written) child pornography pursuant to subsection 163.1(2) of the Code ; and • Lure via telecommunication, children under the age of 16 years old pursuant to subsection 172.1(1) (

b) of the Code . the offences [ 2 ] In January 2020, using the social media platform “Snapchat”, Mr. Schofield began online communications with an adult female (B.C. or the complainant) who initially ignored his communications. He became angry and started calling her names, at which point she started replying. Mr. Schofield then began sending sexual pictures of himself and expressed a desire to have sex with her. He indicated that he was sexually attracted to younger girls, referencing his 10 year-old niece. B.C. was concerned and wanted to obtain more information from Mr.

Schofield, so she continued communications. [ 3 ] Mr. Schofield advised B.C. that his name was Cody and he invited her to his home in Selkirk, Manitoba. He began sending her child sexual abuse material (CSAM) ( i.e. , child pornography pursuant to

section 163.1 of the Code ). While she received numerous CSAM images which she did not save, the complainant was able to describe, in detail, the following three images: • Image one: two female children, between the ages of approximately 4 to 6 years old, who were touching an adult male’s penis; • Image two: an 11 year-old female child posing naked in a mirror; and • Image three: a 4 year-old female child (one of the female children depicted in Image one) who had an adult male’s penis in her mouth.

[ 4 ] Within the communications with the complainant, Mr. Schofield expressed a sexual interest in children between 9 and 12 years of age. Believing that the complainant had an 11 year-old daughter, Mr. Schofield expressed an interest in having sex with her. He asked the complainant to give her daughter alcohol so that he could sexually assault her without her remembering. He also expressed a desire to have intercourse with the complainant while forcing the child to watch. Despite Mr.

Schofield quickly deleting his Snapchat account and his messages to B.C., she was able to capture this message on a screenshot. [ 5 ] In March 2020, B.C. reported the communications to Cybertip.ca, a tip line for reporting online child exploitation. However, by June she had not had any communication from Cybertip. She then posted a screenshot of the above-referenced communication on Facebook to warn the community and to motivate police authorities to take action. Communications from Mr. Schofield ceased in July or August 2020. [ 6 ] On July 20, 2020, Mr. Schofield uploaded a CSAM image on Snapchat.

Snapchat reported this to the National Centre for Missing and Exploited Children (NCMEC), a non-profit national child advocacy organization. NCMEC, in turn, provided the information to the National Child Exploitation Coordination Centre (NCECC), a national law enforcement agency targeting online internet exploitation and CSAM, run by the RCMP. This ultimately led to the issuance of search warrants for Mr. Schofield’s residence in Selkirk and the seizure of two cellphones and a video camera from his bedroom. [ 7 ] Eighty-six

(86) CSAM images were located on Mr. Schofield’s cellphones. The images predominately consisted of female children between the ages of 2 - 14 years engaged in various sexual activities with male adults, sexual activity between children and one of a child in bondage. In addition, there were chat communications through two different messaging applications between Mr. Schofield and children ranging in ages between 14 – 17 years. Within these chats Mr.

Schofield: • Created sexually explicit and highly graphic communications about his desire to have sex with specific children and children in general; • Requested and received child pornography from children; • Asked children to have sex with him; • Discussed arrangements to meet up with children; • Expressed a desire to impregnate a child and discussed plans to do so; • Celebrated and encouraged sex between adults and children; • Admitted awareness that his behaviour was illegal and that the children were “under age”; • Asked children not to tell anyone what he was saying to them because it was illegal; • Admitted his sexual interest was in children as opposed to adults; • Admitted that he was a pedophile; and • Verbally abused and denigrated children who were not compliant with his demands. [ 8 ] In one conversation that appeared to involve a 16 year-old female child from San Antonio, Texas, Mr.

Schofield engaged in a discussion about the child running away and Mr. Schofield transporting her to Canada where he intended to impregnate her. These messages were sent between July 16 and 22, 2022, at varying hours of the day and night. [ 9 ] The Canadian Centre for Child Protection (referred to as C3P) filed a community impact statement on behalf of victims of online luring. According to the affidavit of Monique St.

Germain, General Counsel to C3P, C3P “provides programs and services to the Canadian public that are aimed at reducing all forms of child victimization, including victimization through the creation, distribution and viewing of CSAM and the crime of online luring set out in

section 172.1 of the Code ”. [ 10 ] C3P notes that due to challenges in measuring both sexual and technology-based crimes, including under-reporting, it is impossible to know the true scale of the problem of online luring. Their community impact statement details an increase in police- reported luring and incidents involving CSAM in recent years. From 2017 to 2021, there was a 40 percent increase in child luring incidents, a 146 percent increase in possession or accessing CSAM incidents and a 57 percent increase in making or distributing CSAM.

Between 2014 and 2020, police reported over 29,000 incidents of “child pornography” where the victim had not been identified by police. The community toll of this offending, C3P notes, extends far beyond the individual cases that go through the courts. [ 11 ] The individual harm caused by the proliferation of CSAM was detailed in a Community Impact Statement of “Phoenix 11” filed as part of C3P’s community impact statement. Phoenix 11 is a group of survivors, now adults, who were child victims of CSAM and online luring, who describe the lifelong impacts of this abuse.

They detail the emotional impacts on themselves and their families, serious psychological damage leading to self-harm, self-medication and potential self-destruction, economic impacts, and ongoing fears for security. The toll is immeasurable. As noted above, many victims are never identified, leaving them to suffer the consequences of the abuse on their own. [ 12 ] B.C. told the court about the lasting impact of Mr. Schofield’s communications on her and her family.

She describes herself as being “paranoid” and “hyper-vigilant” about anyone seeing her children, fearing that anyone might take pictures of her children in swimwear and post the images, and her devastation of seeing images of “little girls being abused and sexualized”. She is “afraid they are unknown or unsafe”. THE OFFENDER

[ 13 ] Two reports were filed to give the court an understanding of the circumstances of Mr. Schofield: a Pre-Sentence Report (PSR) prepared by Manitoba Probation Services and a Psychological Risk Assessment prepared by Dr. David Kolton of Forensic Psychological Service. Dr. Kolton was accepted by this court as an expert in forensic psychology with respect to the diagnosis and treatment of adults with cognitive and intellectual disorders and risk assessment tools. [ 14 ] Mr. Schofield is now 33 years of age and was 30 years of age at the time of the offences.

He is single and has lived with his mother for most of his life. His parents separated when Mr. Schofield was young, but he has been able to maintain a relationship with his father who moved to B.C. following the separation. His father has recently returned to the family home as he requires assistance for his care. [ 15 ] Early in his school years, Mr. Schofield was assessed as having intellectual and behavioural challenges. He was diagnosed with ADHD and prescribed medications including Ritalin. He was hearing voices and having hallucinations as young as 12 or 13 years old.

At 17, he was assessed at the Health Sciences Centre psychiatric unit with what was likely depressive symptoms – low mood, crying, and sadness. He was assessed with compulsive disorder, uncontrolled anger, difficulty sleeping, talking to himself – all of which Dr. Kolton says are precursors to schizophrenia. [ 16 ] Mr. Schofield completed grade 10, but ADHD made learning difficult. Testing conducted for the preparation of Dr. Kolton’s report estimated that Mr. Schofield’s IQ was 74, placing his overall intellectual function as bordering on impaired. Dr.

Kolton testified that this low IQ would affect all levels of his functioning, including decision-making, problem solving and being able to organize himself. Mr. Schofield scored a low to below average in basic academic skills of reading, spelling, math computation and sentence comprehension, compared to same-age peers. [ 17 ] Dr. Kolton reported that Mr. Schofield presented with delusions of reference and of persecution, auditory hallucinations, and his mother reported observing disorganized speech. He has been observed talking to himself for five years, and delusions began approximately three years ago. In Dr.

Kolton’s opinion, Mr. Schofield’s hallucinations, delusions, and disturbed cognitive processing met the criteria for schizophrenia. Dr. Kolton also concluded that Mr. Schofield has severe alcohol abuse disorder based on his high tolerance to alcohol, the impact that alcohol has on him socially and financially, and withdrawal symptoms. Dr. Kolton concluded that “clinical interviews … revealed that Mr. Schofield is an individual who has experienced mental health and cognitive challenges since childhood”. [ 18 ] Mr. Schofield reported heavy alcohol and drug use during the period covered by the offences.

This was corroborated by his mother who reported that Mr. Schofield began using substances four years ago, as she would find empty alcohol bottles in his room. [ 19 ] Dr. Kolton concluded that “it is likely that substance use, in concert with his cognitive deficits, significantly impaired his judgment. Forensic analysis of his devices and the content of his online communications are not suggestive of delusional beliefs being an underlying precipitant of the behavior[u]r; therefore, it is unclear to what extent psychotic symptomology directly impacted his behavior[u]r in relation to the current offences.

It is likely that these symptoms served as a destabilizing factor, further impairing his judgment”. [ 20 ] While Dr. Kolton also concluded that Mr. Schofield currently meets the diagnostic criteria for schizophrenia, he is unable to link this to his offending behaviour. He offers that “[t]he deficits associated with schizophrenia may contribute to a vulnerability to gravitate to computer use and computer-based communication because it is safer and more predictable than other forms of social communication”. [ 21 ] Of concern to the court is Mr. Schofield’s inconsistency regarding his involvement in these offences.

In one interview with Dr. Kolton, he denied his involvement in the offences and displayed limited insight into his current situation. At other times, he attributed his conduct to intoxication. Dr. Kolton was not able to discuss the offences with Mr. Schofield as he refused to do so. [ 22 ] The author of the PSR reported that Mr. Schofield admitted his behaviour was wrong. In his interview with that author, Mr. Schofield reported that for three years prior to his arrest, he was heavily addicted to alcohol and narcotics.

As a result of being under the influence of substances every day, he reported that he did not recall most of his actions. When questioned about the possession of CSAM, Mr. Schofield blamed others stating “somebody sent them to me. I tried to delete it off my phone but it never really left it. I couldn’t get rid of them”. [ 23 ] Mr. Schofield has had employment as a hunting and fishing guide, both in Alberta and Manitoba. He worked with one of his brothers in construction, but the last time he did work was four or five years ago.

He reports that he stopped drinking and using drugs since his arrest and did so without professional assistance. He is under the care of a doctor in relation to his ADHD and schizophrenia. [ 24 ] Mr. Schofield has been on bail in relation to these charges for over three years and there is no report that he failed to comply with any of the terms of his release. He has no criminal record aside from these convictions. PRINCIPLES OF SENTENCING [ 25 ]

Section 718 of the Criminal Code sets out the purpose of sentencing: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, 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: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(

b) to deter the offender and other persons 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 to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 26 ]

Section 718.01 mandates that where the offence involves the abuse of a person under the age of 18 years, the court shall give primary consideration to the objectives of denunciation and deterrence of such conduct. [ 27 ] In R. v. Friesen , 2020 SCC 9 , [2020] 1 S.C.R. 424 ( Friesen ) , the Supreme Court directed a profound shift in how courts approach sentencing those convicted of sexual offences against children: [5] … we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities.

Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far- reaching and ongoing harm that it causes to children, families, and society at large. [emphasis added] [ 28 ] In commenting on the significance of

section 718.01, the court observed that: [105] Parliament’s choice to prioritize denunciation and deterrence for sexual offences against children is a reasoned response to the wrongfulness of these offences and the serious harm they cause. The sentencing objective of denunciation embodies the communicative and educative role of law … .

It reflects the fact that Canadian criminal law is a “system of values”. … The protection of children is one of the most basic values of Canadian society … . ( Friesen ) [ 29 ] The sexual abuse of a child increases the offender’s degree of responsibility and moral blameworthiness because children are so vulnerable. This is so because recognizing the child’s vulnerability, the offender intentionally exploits it for his or her own selfish desires.

This responsibility increases with children from marginalized groups. ( Friesen at para 90 ) [ 30 ] The harms caused by CSAM were noted by the Supreme Court many years ago in R. v. Sharpe , [2001] 1 S.C.R. 45 , 2001 SCC 2 : 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. [emphasis in original] [ 31 ] The need for significant sentences to denounce and deter sexual offences against children, specifically online luring, was emphasized by Moldaver J.A. (as he then was) in R. v.

Woodward , 2011 ONCA 610 : [75] Adult predators who seduce and violate young children must face the prospect of a significant penitentiary term. … [76] …[W]hen trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender's conduct and the life-altering consequences that can and often do flow from it.

While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence and the need to separate sexual predators from society for society's well-being and the well-being of our children must take precedence.

[ 32 ] The impacts of online sexual offences are underscored by the statements of Phoenix 11, the Community Impact Statement of the Canadian Centre for Child Protection Inc. and the victim impact statement of B.C.

The proliferation of these offences continues to cause serious injury to children and sentences imposed by the court must not only denounce the conduct of the offender before the court, but also deter him and others from committing such offences. [ 33 ] Commensurate with the directive from the Supreme Court in Friesen , the Crown seeks a total sentence of 12.5 years, reduced to 9 years after considering totality.

That sentence is reached as follows: • Possess child pornography ( subsection 163.1(4) ) – 2.5 years, reduced to 2 years; • Make (written) child pornography ( subsection 163.1(2) ) – 4 years, reduced to 3 years; and • Luring, via telecommunications, of a child under age 16 years ( subsection 172.1(1) (b)) – 6 years, reduced to 4 years, with all sentences to be served consecutively. [ 34 ] Mr.

Schofield proposes a sentence of 2 years plus 1 day as follows: • Possess child pornography – 1 year; • Luring via telecommunications – 1 year; and • Make (written) child pornography – 1 year, concurrent with luring which he argues is within the luring charge and not a separate offence. [ 35 ] Mr. Schofield submits that his “substance use, in concert with his cognitive deficits, significantly impaired his judgment” and reduces his moral blameworthiness.

He says that when viewed in the context of his otherwise “unremarkable life”, his mental condition and alcohol disorder provided a “cogent, rational explanation” for his uncharacteristic behaviour, thus entitling the court to significantly reduce the sentence that would otherwise be expected. [ 36 ] A properly diagnosed mental illness does not result in an automatic reduction in moral blameworthiness for sentencing purposes.

A fact-specific determination must be made as to whether the mental illness “impacted the commission of the offence in question”. (see R v Cerezo-Brennan , 2023 MBCA 17 at para 21 ) [ 37 ] In R. v. J.M.O. , 2017 MBCA 59 , Mainella JA made the point as follows: [73] Ascertaining the moral blameworthiness of an offender with a mental illness or some other form of cognitive limitation is a tactful and considerate exercise. Sentencing judges must avoid committing one of two obvious errors in principle.

The first is being indifferent to the question of whether an offender’s mental circumstances affected his or her degree of responsibility. The other error in principle is the reverse situation, namely, assuming an offender’s moral blameworthiness for an offence is reduced automatically because he or she has a mental illness or other cognitive limitation. It is suggested that, when sentencing offenders with a mental illness or some other form of cognitive limitation… sentencing judges keep separate and properly assess the following questions: 1.

Is there cogent evidence that the offender suffers from a recognized mental illness or some other cognitive limitation? 2. Is there evidence as to the nature and severity of the offender’s mental circumstances such that an informed decision can be made as to the relationship, if any, between those circumstances and the criminal conduct? 3. Assuming the record is adequate, the sentencing judge must decide the offender’s degree of responsibility for the offence taking into account whether and, if so, to what degree his or her mental illness or cognitive limitation played a role in the criminal conduct. [ 38 ] Mr.

Schofield is not required to establish that his substance use, in concert with his cognitive deficits caused the offending behaviour, but he must establish that it contributed to that behaviour. (see R v JED , 2018 MBCA 123 at paras 68 – 78 ) [ 39 ] Based on Dr. Kolton’s evidence as reviewed above, I am satisfied that Mr. Schofield suffers a cognitive deficit which impaired his judgment in committing these offences. However, in my opinion, his moral blameworthiness is reduced only marginally by his cognitive deficits. It is clear from the communications that Mr.

Schofield knew what he was doing was wrong, but he persisted, nonetheless. He cautioned his targets not to tell anyone about what he was doing because it was illegal. He used a social media platform which caused his messages to B.C. to disappear after receipt. He knew what he was doing was wrong, but persisted nonetheless and took steps to erase his tracks. [ 40 ] Counsel for Mr. Schofield submits that up until these offences, Mr. Schofield has lived an unremarkable life. The small circle of people with whom he communicates is mostly family.

He has been reclusive and has had challenges with his education, resulting in him completing only grade ten. He has no record whatsoever and has a supportive family. His mother has been at his side all his life and continues to be an important source of support as he deals with these charges. He pled guilty and his PSR is generally positive. In an

effort to learn what was behind Mr. Schofield’s involvement in these offences and to provide a deeper context about Mr. Schofield’s conduct, Mr. Schofield’s mother retained Dr. Kolton to prepare the psychological risk assessment presented to the court. [ 41 ] Dr. Kolton assessed Mr. Schofield as a low risk to reoffend, saying that he fell in the “well below average” range. In his report, he goes on to say (at p 18): Based on consideration of the empirical literature associated with recidivism of internet only offenders, Mr.

Schofield presents as a Low risk for future engagement in accessing, importing, and possessing child pornography, and as a Low risk to engage in contact sexual offending against a child. This assessment is consistent with a Well Below Average level of risk. Accordingly, research has found that within 1.5 to 6 years, 2.0% of internet sexual offenders recidivated with a contact sexual offence and 3.4% recidivated with a child pornography offence. Mr. Schofield would be considered among the lowest risk of these offenders. [ 42 ] The author of the PSR reported that based on the Static 99R, Mr.

Schofield scored 4, which places him above average risk of being charged or convicted of another sexual offence. Dr. Kolton testified that the Static 99R is not appropriate for internet sexual offences and applies only to contact sexual offences. In the absence of an explanation from Probation Services otherwise, I accept Dr. Kolton’s assertion and place no weight on the results of the Static 99R test. Based on the PSR, Dr. Kolton’s report and Mr. Schofield’s compliance with the conditions of his bail, I consider that Mr. Schofield is at a low risk to reoffend. [ 43 ] Despite Mr.

Schofield’s prospects for the future, denunciation and deterrence remain as the most important considerations in sentencing for these offences. Before any adjustment for totality, in my opinion, the appropriate sentence is 10 years as follows: • Possess child pornography (

section 163.1(4) ) – 3 years; • Luring via telecommunications, of a child under age 16 years ( subsection 172.1(1) (b)) – 7 years, consecutive to the sentence for possessing child pornography; and • Make (written) child pornography (

section 163.1(2) ) – 4 years, concurrent. I agree that in the circumstances of this case, making child pornography is captured within the offence of luring. [ 44 ] However, I must now take a last look at the sentence to determine whether it offends the totality principle which simply means that I should not impose a “crushing sentence” that is not in keeping with Mr. Schofield’s record and future prospects. [ 45 ] Mr. Schofield comes without a previous record and has a supportive family. He is being treated for schizophrenia and is taking medication. He has been on bail for three years without incident.

While that is not mitigating, it speaks to his prospects for the future as do the reports before the court. In my opinion, a sentence of 10 years would be crushing for Mr. Schofield and have a detrimental impact on his long-term prospects. I would reduce the sentence to 8 years as follows: • Possess child pornography (

section 163.1(4) ) – 3 years; • Luring via telecommunications, of a child under age 16 years ( subsection 172.1(1) (b)) – 5 years, consecutive to the sentence for possessing child pornography; and • Make (written) child pornography (

section 163.1(2) ) – 3 years, concurrent with the sentencing for luring. [ 46 ] The Crown seeks 15-year orders pursuant to section 161(1) of the Code . As noted in Williams (at para 71): The purpose and scope of s. 161 was stated this way in Williams #1 at para. 98 : [98] The overarching purpose of the provision is the protection of children from sexual violence: R. v. K.R.J., 2016 SCC 31 at paras. 45 - 47 .

The orders are discretionary and therefore can be carefully tailored to the nature and degree of risk to children upon the offender’s release from custody. [ 47 ] In the circumstances, pursuant to subsection 161(1)(a), Mr. Schofield will be prohibited from attending a public park or public swimming areas where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre for a period of 10 years.

He will be prohibited from being within two kilometres of the dwelling house, workplace and schools of B.C. and her children for a period of 10 years pursuant to subsection 161(1)(a.1). There will be a 10-year order prohibiting him from seeking, obtaining or continuing employment or becoming a volunteer in a capacity which involves him being in a position of trust or authority towards persons under the age of 16 years pursuant to subsection 161(1)(b). I do not consider it necessary to impose any order with respect to subsection 161(1)(c).

With respect to subsection 161(1)(d), I will impose a 10-year order prohibiting Mr. Schofield from using the internet or any other digital network for the purpose of communicating with a person under the age of 16 years, except for immediate family members, without approval of the court. These orders run from the date of Mr. Schofield’s release from custody. [ 48 ] In addition, there will be the following orders: (

a) a mandatory DNA order under

section 487.05(1) of the Code ;

(

b) a 20-year order under the Sex Offender Information Registration Act , S.C. 2004, c. 10 ( SOIRA ) pursuant to

section 490.012(1) of the Code ; (

c) an order that Mr. Schofield will have no contact with B.C. while in custody pursuant to subsection 743.21(1) of the Code ; and (

d) an order pursuant to

section 109 of the Code prohibiting the possession of weapons, crossbows, restricted weapons, ammunition and explosive substances for 10 years, and prohibited firearms, restricted firearms, prohibited weapons, prohibited devices and prohibited ammunition for life. [ 49 ] There will also be an order of forfeiture of all items seized by the police in relation to these offences. __________________________ J.