R. v. Barrett, 2022 NLSC 43

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Barrett , 2022 NLSC 43 Date : March 21, 2022 Docket : 201701G4971 Her Majesty The Queen v. Robin Barrett Restriction on Publication: By court order made under subsection 486.4(3) of the Criminal Code , 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written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

Before: Justice Rosalie McGrath Edited Transcript of Oral Reasons for Judgment Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: March 4, 2022 Date of Oral Judgment: March 18, 2022

Summary: The Court accepted a joint submission on sentencing. The offender was sentenced to a term of imprisonment of 3.5 years for the offence of making available child pornography and 3 years concurrent for possession of child pornography. In addition, a twenty-year prohibition order was imposed, along with ancillary orders.

Appearances: Shawn Patten Appearing on behalf of the Crown Rosellen Sullivan Appearing on behalf of the Offender Authorities Cited: CASES CONSIDERED: R. v. Barrett , 2021 NLSC 123 ; R. v. Friesen , 2020 SCC 9 ; R. v. Anthony-Cook , 2016 SCC 43 ; R. v. Noseworthy , 2018 NLSC 233 ; R. v. R.J.H. , 2020 BCSC 1070 ; R. v. Jerrett , 2021 ABQB 87 ; R. v. Kerr , 2017 NLTD(G) 107; R. v. Fitzpatrick , 2019 ONSC 2407 ; R. v. Stupnikoff , 2013 SKPC 57 ; R. v. R.J.H . , 2021 BCCA 54 ; R. v. J(K) , 2016 SCC 31 ; R. v. Miller , 2017 NLCA 22 STATUTES CONSIDERED: Canadian Charter of Rights and Freedoms ,

Part 1 of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 ; Criminal Code , R.S.C. 1985, c. C-46 ; Sex Offender Information Registration Act , S.C. 2004, c.10 REASONS FOR JUDGMENT McGrath, J. : INTRODUCTION [ 1 ] Robin Barrett pleaded guilty to one count of making available child pornography and one count of possessing child pornography. These charges were laid in June, 2016 as a result of an investigation leading to a warrant to search Mr. Barrett’s residence on July 10, 2015. That search revealed a significant volume of images, videos and written material meeting the definition of child pornography.

There was also evidence that he had made some of that material available for distribution. [ 2 ] The depravity of the images and videos seized warrants a strong message from this Court that participating in such crimes will result in a significant sentence. While this matter proceeded by way of a joint submission, even absent the special considerations that apply to joint sentences, I am satisfied that the sentence proposed will send that message.

It not only aligns with overall sentencing principles but meets the objectives of denouncing and deterring others from victimizing our most vulnerable members of society – our children. [ 3 ] When this matter originally went to trial, Mr. Barrett exercised his right to ask this Court to exclude evidence as a result of alleged breaches of his rights under the Canadian Charter of Rights and Freedoms ,

Part 1 of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 . The first trial judge found two Charter breaches and excluded evidence. However, the Newfoundland and Labrador Court of Appeal overturned that decision and sent the matter back to be re-tried. [ 4 ] The issues relating to the Charter breaches were the subject of a re-trial in 2021 resulting in a decision filed October 1, 2021 ( R. v. Barrett , 2021 NLSC 123 ). The Court found only one breach of Charter rights, reserving the right of counsel to argue the appropriate remedy. A hearing on the remedy never took place as Mr.

Barrett advised he was changing his plea to guilty. [ 5 ] A date was set for a change of plea and sentencing on March 4, 2022. At that time, counsel presented an Agreed Statement of Facts signed by Mr. Barrett. On the basis of those agreed facts, Mr. Barrett pleaded guilty to the counts noted above. I entered convictions and the matter proceeded directly to sentencing. This is my decision on sentencing based on the joint submission. sentencing principles [ 6 ] As with any sentencing decision, I must be guided by the provisions of

section 718 of the , R.S.C. 1985, c. C-46 . That

section provides that 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. [ 7 ]

Section 718 also sets out a list of sentencing objectives that include the following: 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. [ 8 ] Other fundamental principles of sentencing are set forth in sections 718.1 and 718.2. In particular,

section 718.1 provides that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2 also sets out a number of factors that I must take into account as either aggravating or mitigating, relating to the offence or the offender. [ 9 ] When sentencing an offender for multiple offences, I must also consider whether the sentences to be imposed should be served concurrently or consecutively, having regard to whether or not any of the offences relate to a single criminal adventure. [ 10 ] In respect of offences involving the abuse of children, Parliament has also signaled that courts must communicate society’s condemnation of such conduct.

Section 718.01 specifically provides that when a court imposes a sentence for an offence that involves abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence. [ 11 ] It is notable that Parliament has, in the last number of years, increased maximum sentences for these types of offences. At the time Mr. Barrett committed these offences, the Criminal Code provided for a minimum punishment of imprisonment for a term of one year and a maximum of ten years for the count of making available child pornography.

In respect of the count of possession of child pornography, the Criminal Code provided for a minimum punishment of imprisonment for a term of six months and a maximum period of five years. [ 12 ] The Criminal Code now provides for a minimum punishment of imprisonment for one year and a maximum of 14 years for making available child pornography. In respect of the count of possession of child pornography, the minimum punishment of imprisonment is now one year and the maximum is ten years. [ 13 ] At paragraph 100 of the Supreme Court of Canada decision in R. v.

Friesen , 2020 SCC 9 , the Supreme Court of Canada held that courts should generally impose higher sentences than those imposed in cases that preceded the increases in maximum sentences. This respects Parliament’s direction to courts to recognize the gravity of such offences.

Parliament has given “clear and repeated signals to increase sentences imposed for these offences.” [ 14 ] While Friesen dealt with the offence of sexual interference with a young child, the principles expressed in that decision regarding sexual abuse of children generally are equally applicable to offences relating to child pornography. [ 15 ] At paragraph 74 of Friesen , the court notes that “sentences for sexual violence against children must recognize and reflect both the harm that sexual offences against children cause and the wrongfulness of the sexual violence”.

It must take into account the life- altering and severe consequences that often flow from these offences. It is both the harmfulness and the wrongfulness that must be taken into consideration when determining a proportionate sentence. [ 16 ] Finally, while the above principles apply in every sentencing for child pornography offences, I am also mindful that this is a joint submission on sentencing. In the Supreme Court of Canada’s decision in R. v.

Anthony-Cook , 2016 SCC 43 , the court clearly expressed the view that joint submissions should be accepted by the sentencing judge, other than in rare exceptional circumstances.

At paragraph 32, trial courts are directed to accept a joint submission unless the sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest. [ 17 ] At paragraph 52 of Anthony-Cook , the court held that trial judges should first approach a joint submission on an “as is” basis and only apply the public interest test when they are considering jumping or undercutting a joint submission.

If the trial judge were considering this course of action, the judge should allow counsel the opportunity to provide the court with information on the circumstances leading to the joint submission. [ 18 ] While I did not indicate to counsel that I was considering a departure from the joint submission, counsel for the Crown voluntarily informed the Court that there was a benefit to both the Crown and Defence in agreeing to the proposed sentence. While the Crown had obtained a favorable result on the Charter application, there was still one breach and no guarantee that the Court would not exclude evidence.

As well, the Crown bore the risk of a challenge to forensic evidence and having to prove exclusive opportunity. On the other hand, Mr. Barrett bore the risk of an adverse decision on those same issues. [ 19 ] While I appreciate counsel providing me with this information, as can be seen from the analysis that follows, I am satisfied that the sentence proposed is not one that would cause the public to lose faith in the administration of justice. In fact, I find that the sentence proposed clearly meets the sentencing principles outlined in the Criminal Code .

As a result, I do not need to consider how the sentence reflects a quid pro quo . CONSIDERATION OF FACTORS AND CIRCUMSTANCES [ 20 ] The Agreed Statement of Facts indicates that Mr. Barrett came to the attention of the Toronto Police Service during the course of an undercover child pornography investigation. The Toronto Police Service contacted the Internet Child Exploitation Unit of the Combined Forces Special Exploitation Unit (CFSEU) in February, 2015. Constable Follett of the CFSEU assisted and eventually obtained a warrant to search Mr. Barrett’s residence. That search was carried out on July 10, 2015.

[ 21 ] Police seized a number of items, including electronic devices. CFSEU’s Forensic Unit subsequently analyzed the electronic devices, concluding that Mr. Barrett was in possession of and made available child pornography (CP). It also categorized the CP, enabling it to come to the following conclusions: a. 2,577 videos (2,484 accessible with minimum effort), 19,838 images (18,034 accessible with minimum effort) and 15 documents were located that met the definition of CP. A description of a sample of the material located on the exhibits containing CP is provided in

Schedule “A” as attached. The period of possession of this material by Barrett was between 13 November 2013 and 10 July 2015. b. Giga Tribe chat logs by user RandyRob were located. Forensic analysis determined Barrett to be RandyRob. Those chats revealed an exchange of passwords to access Barrett’s electronic folders and files that contained CP. The chat logs also contained discussions of CP images, videos and sexual assault of children. Forensic analysis revealed 370 images and 175 videos, categorized as CP, in these “shared” folders. A description of a sample of the material located on the exhibit containing the shared folders is provided at paragraph 6 of

Schedule “A”. The period that this material was made available by Barrett was between 20 September 2014 and 29 June 2015. c. Internet searches were located with certain pages bookmarked/saved. Some of those websites contained CP content. Internet searches for terms associated with CP were also discovered. The period of access to this material by Barrett occurred between the dates of 8 October 2014 and 10 July 2015. [ 22 ]

Schedule “A” to the Agreed Statement of Facts reveals that Mr. Barrett possessed thousands of images and videos of both male and female children in various stages of dress and undress, with approximate ages being anywhere between prepubescence and 15 years of age. [ 23 ] More disturbingly, there were numerous images and videos showing adult males engaged in sexual intercourse, oral sex and digital penetration of male and female children.

Yet other images and videos show young children of both sexes performing oral sex on other children or adults, as well as youth males masturbating themselves or other youth males. There were also images of both male and female youth touching an adult penis and adult males having anal sex with youth females.

The focus of the images is clearly on the sexual acts and the children’s genitalia, some images showing ejaculate on the genitals of prepubescent male and female children. [ 24 ] With respect to the images that were available for distribution, the material consists of images and videos showing a youth female approximately ten years of age performing adult sex on an adult male with ejaculate on her mouth, stomach and leg.

There were also images and videos of youth males approximately 8 to 12 years of age performing oral sex on each other and youth males laying on their backs with the focus clearly on their erect penis. [ 25 ] In providing the Court with this evidence required to convict and sentence Mr. Barrett, I would like to thank counsel for following the approach suggested by Thompson, J. in R. v. Noseworthy , 2018 NLSC 233 .

That approach involved the provision of detailed descriptors of the images and videos seized rather than asking the Court to view the actual child pornography. [ 26 ] As noted by Thompson J., in appropriate circumstances, this manner of presenting evidence allows the sentencing judge to fulfill the judicial role while, at the same time, avoid any further victimization.

I also appreciate that counsel has acknowledged the effect viewing such images may have on those in the courtroom. [ 27 ] While I have not seen the child victims in the images and videos seized and there has been no identification of these victims, I am all too mindful that this is not a victimless crime. In fact, these crimes involve numerous helpless child victims, the most vulnerable members of our society – those we are obligated to protect. [ 28 ] These children have names, lives and families of their own.

They have been subjected to unspeakable abuse involving violent interference with their sexual integrity. In addition to any physical harm they may have suffered, the potential for longstanding psychological harm from that abuse is significant. That harm may be evident in their childhood or, as past experience has shown, it may not become apparent until their adult life. [ 29 ] As noted at paragraph 81 of Friesen , such victims may find it difficult to form loving and trusting relationships or they may themselves become abusers.

As adults, they may struggle with substance abuse, mental illness, PTSD, eating disorders, suicidal ideation, self-harming behavior, anxiety, depression, sleep disturbances, anger, hostility and poor self-esteem. [ 30 ] In respect of the count of making pornography available to others, that crime can have an even more pronounced effect on the victims. These victims may bear the scars and shame of not knowing who has viewed the pornographic images.

Even the knowledge that such images or videos were shown in court could cause these victims further grief. [ 31 ] I therefore commend the sensitive approach taken by counsel to avoid further victimization while still ensuring fairness in the judicial process. AGGRAVATING AND MITIGATING CIRCUMSTANCES [ 32 ] One of the most significant aggravating circumstances in this case is the fact that Mr. Barrett has a prior record for possession of and making available child pornography.

In 2010, he was convicted and sentenced in Provincial Court to a period of imprisonment of 30 months for each offence, to be served concurrently. He was also placed on the sex offender registry for a 20-year period. These offences occurred between 2007 and 2009. He possessed 3,451 videos and 31,460 images. 25 images were made available.

[ 33 ] Despite his incarceration on these charges, Mr. Barrett continued to amass a large volume of child pornography after his release. He was found with thousands of pornographic images and videos in respect of the offences now before the Court. While the number of videos and images possessed in 2015 was less than on his prior conviction, he had more images and videos available for others to view. The content of the videos and images shows violent and disturbing abuse of children for a sexual purpose. [ 34 ] As well, he has amassed this material over a significant period of time. Mr.

Barrett possessed child pornography for a period of one year and eight months and made child pornography available for distribution to others for a period of approximately ten months. His continued involvement in such child exploitation indicates that Mr. Barrett may be unable to control his apparent need to access and be involved in the possession of and making available child pornography. [ 35 ] In respect to mitigating factors, there is little to consider. Mr. Barrett chose not to obtain a pre-sentence report. As a result, I do not know of any personal circumstances that may be mitigating. I do know that Mr.

Barrett is currently 62 years of age and was in his fifties at the time of the offences. He is a former Anglican priest. His counsel advised that he received treatment and counselling when he was last incarcerated but has had no treatment since his release in 2011. [ 36 ] I should also note that there is no evidence that Mr. Barrett paid or derived profit from the distribution of any material.

Lastly, I note that the offender did enter guilty pleas to the charges but at a very late stage in the proceedings, once he was largely unsuccessful in his Charter application. sentencing authorities [ 37 ] In considering what is a fit and appropriate sentence, I have considered the case law Counsel for the Crown provided me dealing with similar offences. [ 38 ] In the British Columbia Supreme Court case of R. v. R.J.H . , 2020 BCSC 1070 , the offender was a 25-year-old male at the time of sentencing.

He pleaded guilty to possessing and making available for distribution child pornography. [ 39 ] Police located over 2700 images and 125 videos of child pornography on the offender’s IPad. There was also correspondence between the offender and his former girlfriend in which they discussed committing acts of sexual abuse on their unborn child, as well as the offender’s desire to sexually abuse his girlfriend’s 10-year-old half-sister. Police also located communications between the offender and others in which child pornography was shared and discussed.

The trial judge found that the nature of R.J.H.’s collection was appalling and included the worst possible depictions of child sexual abuse. [ 40 ] R.J.H. was a first time offender, considered at moderate risk to re-offend, and was diagnosed with paedophilic disorder. Mitigating factors included that he was still a relatively young person and substance abuse may have contributed to his offences. He had also plead guilty and took responsibility for his crimes.

The court imposed a sentence of 15 months for possession of child pornography and 30 months for making available child pornography, both sentences to be served concurrently. [ 41 ] In the Alberta Court of Queen’s Bench case of R. v. Jerrett , 2021 ABQB 87 , the offender had 17,657 images and 108 videos of child pornography on three computers. A majority of the images were those of pre-teen girls with a focus on the genital areas. The remaining images were of children ranging in age from infants to teenagers involved in sexual acts.

The court found that the pornographic material fell within the middle of the depravity continuum. The accused had a serious but unrelated criminal record. There were no mitigating circumstances and the accused had shown no remorse. The court imposed a sentence of two years on each count of possessing and accessing child pornography, to be served concurrently. [ 42 ] In the Newfoundland and Labrador Supreme Court decision in Noseworthy , Thompson, J. sentenced a first time offender to a period of 15 months’ incarceration and a two-year probation order for accessing and possessing child pornography.

The offender had 17,852 images and three videos of child pornography, of which 2000 were accessible by the offender. The activity continued undetected for a considerable period of time. The offender was attending sessions with his psychologist to address his addiction to child pornography and had family support. He had no prior criminal record and offered a sincere apology to his family and the court. He was deemed to be at low risk to re-offend. [ 43 ] In the Newfoundland and Labrador Supreme Court decision in R. v. Kerr , 2017 NLTD(G) 107, Burrage, J. sentenced the offender under two separate indictments.

The first indictment covered two time periods in 2015. During the first time period, the offender possessed and accessed child pornography. During the second time period, he made child pornography available to others. The second indictment related to a period following the offender’s arrest on the first indictment. It involved the offences of distributing and possessing child pornography as well as breaches of recognizance. [ 44 ] In relation to the first indictment, the offender was in possession of 470 unique child pornography images and 146 unique child pornography movies.

As well, 147 child pornography images and 54 child pornography videos were made available to others. In relation to the second indictment, 11 child pornography images and one child pornographic video were located on the offender’s cell phone. He admitted to police that he shared that child pornography with others. [ 45 ] In the case of both indictments, the pornographic images and videos were those of nude or partially nude prepubescent males between the ages of 5 and 15 years engaged in masturbation, and oral and anal sex, sometimes with other young males or with adults.

The evidence indicated that the offender had been accessing child pornography over a number of years. [ 46 ] The offender was 36 years of age at the time of sentencing. He had been the victim of child sexual abuse. He had ADHD and a learning disability. He had no prior criminal record and expressed remorse for his actions. He had also been seeing a psychologist since shortly after his arrest.

He displayed some insight into his condition and was willing to pursue further counselling. [ 47 ] On the first indictment, Burrage, J. sentenced the offender to 18 months’ imprisonment for distributing child pornography and 12 months concurrent for possessing and accessing child pornography. With respect to the second indictment, the offender was sentenced to 12 months’ imprisonment, consecutive to the first indictment, for distributing child pornography, and 12 months,

concurrent, for possession of child pornography. He was also sentenced to six months, consecutive, for one breach of recognizance, with the remaining two breaches of recognizance to each run six months concurrent. As a result, the total term of imprisonment would have been three years absent credit for pre-sentence custody. [ 48 ] The Crown also provided me with cases involving repeat offenders. In the Ontario Superior Court of Justice decision in R. v. Fitzpatrick , 2019 ONSC 2407 , Byrne, J. sentenced a 74-year-old repeat offender to a term of imprisonment of 30 months.

The offender had been 72 at the time the offences were committed. His prior convictions five years earlier involved thousands of pornographic images of naked children, including babies in sexual poses; children having sex with each other; and adults having intercourse with young girls. At that time, he had been sentenced to 18 months’ imprisonment and three years’ probation. [ 49 ] The circumstances regarding the second offence involved Mr. Fitzpatrick attending a public library, on two separate occasions. In full view of patrons, he accessed and saved child pornography onto a USB stick.

At the time, he was on probation and under a prohibition order. However, in terms of mitigation, the offender immediately acknowledged that he had an ongoing problem with child pornography and entered an early guilty plea. He was also participating in therapy. Had it not been for his considerable efforts at rehabilitation, the court noted that the sentence of 30 months would have been much higher. [ 50 ] The Saskatchewan Provincial Court decision in R. v.

Stupnikoff , 2013 SKPC 57 , also involved the sentencing of a second time offender on one count of possessing child pornography and one count of making available child pornography. Two years earlier, the offender had pleaded guilty to possession of 8,544 images and videos of child pornography. At the time of his second arrest, his collection was almost 10 times as large. While police had not been able to review all the images and videos, they determined he had 80,393 images or videos containing child pornography.

The sheer volume of material was an aggravating circumstance, as was his prior conviction for the same offence. In mitigation, the 58 year old had pleaded guilty and was employed with a supportive spouse. The offender was sentenced to five years’ incarceration on the charge of making available child pornography and four years concurrent for the possession of child pornography. [ 51 ] It is against the background of the above considerations and case law that I will consider counsel’s joint submission.

Sentence Term of Imprisonment [ 52 ] The joint submission proposed that I impose a prison sentence of 3.5 years on the count of making available child pornography and 3 years concurrent on the count of possession of child pornography. [ 53 ] It is evident from a review of the above decisions that the joint sentence of imprisonment proposed by counsel is within the range of sentences for these offences.

The cases reviewed show a broad range of sentence, anywhere from 15 months for possession of child pornography to five years for making available child pornography. [ 54 ] In determining whether to accept the sentence of imprisonment proposed, I have considered the large volume of child pornography that was seized. The depravity of the content of the images and videos is at the moderate range of the continuum.

Further, I have considered the aggravating factors and limited mitigating factors already noted, particularly that this is a repeat offence and there has been no expression of remorse. [ 55 ] In light of these considerations, Mr. Barrett’s period of incarceration should be at the higher rather than the lower end of the range. Further, the count of making available child pornography is also the more serious of the two offences and should attract a higher sentence. [ 56 ] Finally, as there is much overlap between the two offences, it can be said that this is a single criminal adventure.

The sentences should therefore be served concurrently. [ 57 ] I find that the term of imprisonment proposed in the joint submission meets the sentencing objectives and is proportionate. It is not a sentence that would in any manner bring the administration of justice into disrepute or be contrary to the public interest. It reflects the gravity of the offence, the offender’s degree of responsibility and the unique circumstances of this case. In all respects, it is a fair, fit and principled sentence.

Prohibition Order [ 58 ] Section 161(1) of the Criminal Code provides that where an offender is convicted of an offence referred to in subsection (1.1) (which includes possession and making available child pornography) in respect of a person who is under the age of 16 years, the court that sentences the offender shall consider making and may make, subject to the conditions or exemptions that the Court directs, an order prohibiting the offender from: (

a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre; (a.1) being within two kilometres, or any other distance specified in the order, of any dwelling-house where the victim identified in the order ordinarily resides or of any other place specified in the order; (

b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;

(

c) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate; or (

d) using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court. [ 59 ] Section 161(2) gives the court discretion as to the duration of a prohibition order. [ 60 ] In this case, counsel agree on the conditions that should be included in the prohibition order and that this order be in effect for a period of 20 years.

In considering this order, I am guided by decisions of both the British Columbia Court of Appeal and the Newfoundland and Labrador Court of Appeal provided by counsel for the Crown. [ 61 ] In the British Columbia Court of Appeal decision in R. v. R.J.H ., 2021 BCCA 54 , the court commented on the principles applicable to a

section 161 prohibition order, noting that the leading case on the issue is R. v. J(K) , 2016 SCC 31 . In that case, Justice Karakatsanis held that section 161(1) has the overarching protective function to shield children from sexual violence.

Such orders should be carefully tailored to the circumstances of the offender and the nature of the risk that the particular offender poses to children upon release into the community. [ 62 ] At paragraph 19 of R.J.H. , the British Columbia Court of Appeal noted that the evidentiary basis to support such an order will naturally include everything considered for the overall sentence. However, it is the nature and extent of the risk that should primarily inform the scope and duration of the prohibition order.

It should also take into account the length of the sentence, the age of the offender upon release into the community and the prospects for rehabilitation. [ 63 ] Perhaps most importantly, at paragraph 20, the British Columbia Court of Appeal noted that the principles expressed in Friesen should be given proper consideration by the court in fashioning such an order.

It should therefore reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children. [ 64 ] In R.J.H . , the British Columbia Court of Appeal found that a 25-year prohibition order was demonstrably too long for a 25- year-old first time offender. However, the nature of the pornographic material that was seized was an aggravating factor. The accused had also not yet begun the difficult and lengthy process of his rehabilitation. The case therefore warranted a lengthy duration on the order.

The Court of Appeal reduced the duration to a period of 15 years. [ 65 ] In a decision of the Newfoundland and Labrador Court of Appeal in R. v. Miller , 2017 NLCA 22 , Hoegg, JA, considered whether the trial judge had erred in imposing a prohibition order. The pre-sentence report placed the offender in the low risk to re- offend category. However, as noted by Hoegg, JA at paragraph 27, these risk assessments are of limited value as they do not lead to the conclusion that the offender is a low risk to children. [ 66 ] The court was most influenced by the facts and circumstances of Mr. Miller’s offence.

In particular, the large volume of pornographic images, the young ages of the children depicted in the images (estimated to be mostly between five and ten years of age) and the disturbing and violent content. Further, the material had been viewed and deleted over a lengthy period of time. In those circumstances, the sentencing judge’s decision to impose a

section 161 order was upheld. [ 67 ] In respect of Mr. Barrett, I have considered the conditions proposed by counsel, as detailed below. I find they are tailored to the circumstances and meet the objectives of a prohibition order. In particular, I note that the fact that this is a repeat offence indicates a greater risk of reoffending. There was a large volume of disturbing images and videos amassed over a lengthy period of time. The offender’s prior treatment in prison also does not seem to have deterred him from continuing to access and share child pornography. [ 68 ] While Mr.

Barrett is 62 years of age, individuals can continue to engage in such conduct well into the later stages of their life, as evidenced from the facts in Fitzpatrick . A lengthy duration is therefore warranted. [ 69 ] On the other hand, the conditions proposed recognize the impracticality and potential unfairness of imposing a blanket prohibition on using the internet. The tailored conditions serve as an effective balance between the need to protect children while ensuring the offender has the ability to become a productive member of society on release.

Again, the proposed sentence would not bring the administration of justice into disrepute. conclusion Sentence [ 70 ] On count one of the indictment, the offender is sentenced to a term of imprisonment of 42 months for making available child pornography. [ 71 ] On count three of the indictment, the offender is sentenced to a term of imprisonment of 36 months for possession of child pornography, to be served concurrent with the term of imprisonment on count one. [ 72 ] The offender shall be given credit at a rate of 1.5 days for each day spent on remand since March 4, 2022 while he was awaiting sentencing.

DNA Order [ 73 ] As both offences are primary designated offences within the meaning of

section 487.04 of the Criminal Code , I impose a mandatory DNA Order under

section 487.051(1) of the Criminal Code in Form 5.03, authorizing the taking of the number of samples of

bodily substances from the offender that is reasonably required for the purpose of forensic DNA analysis. Sex Offender Registration [ 74 ] I impose a mandatory order under

section 490.012 in Form 52 of the Criminal Code requiring the offender to comply with the provisions of the Sex Offender Information Registration Act , S.C. 2004, c.10 , for a period of life, in accordance with

section 490.013(4). Forfeiture Order [ 75 ] I impose an order for forfeiture under

section 164.2(1) of the Criminal Code of the following items seized from the home of the offender:

a) A Kingston USB Thumb Drive;

b) A Lexar 64GB USB Thumb Drive;

c) A Verbatim 64GB USB Thumb Drive;

d) A Lexar 32GB USB Thumb Drive;

e) A Core Micro 64GB USB Thumb Drive;

f) An Acer Desktop Computer; and

g) Three child pornography novels with titles, Cock Watch, Mancorps and Lust on the Loose. Prohibition Order [ 76 ] I impose an order under section 161(1) of the Criminal Code prohibiting the offender from:

a) Attending a public park or public swimming area where persons under the age of sixteen years are present or can reasonably be expected to be present;

b) Attending at any daycare center, school ground, playground or community centre;

c) Seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of sixteen years;

d) Using a computer system for the purpose of communicating with a person under the age of sixteen years; and

e) Using the internet or other digital network, unless: i. The computer or other telecommunications device used to access the internet or digital network does not have any erasing, cleansing or scrubbing software installed or that can encrypt saved files; ii. The offender does not represent himself to be someone other than his legal name and his correct legal age; iii. The offender does not access, possess, share or view child pornography or any child exploitation materials;

iv. The offender does not join or participate in any chat rooms or social media sites or groups that he knows persons under the age of 16 are likely to participate in; v. The offender does not engage in any conversations with or exchange intimate depictions, images, photographs or videos with anyone known to be, depicted to be or represented to be, 16 years of age or younger; and vi.

The offender must, on the request of a peace officer, give that peace officer access to any device in the possession of the offender that is capable of accessing the internet or storing data so that the peace officer can verify compliance with these conditions. _____________________________ Rosalie McGrath Justice