R. v. Pike, 2024 ONCA 608
(a) Sentencing Principles for Child Pornography Possession
[143] Ever since Parliament created the child pornography offences in s. 163.1 of the Criminal Code in 1993, courts have been on a “learning curve” to understand their wrongs and harms: R. v. D.G.F., 2010 ONCA 27, 98 O.R. (3d) 241, at para. 21. To further judicial progress along this learning curve, I apply the child-centered approach from R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, and address the distinct wrongs and harms of the s. 163.1(4) offence of possessing child pornography, its gravity, and perpetrators’ moral blameworthiness: R. v. Bertrand Marchand, 2023 SCC 26, 487 D.L.R. (4th) 201, at paras. 32-33. This guidance also applies to people who commit the s. 163.1(3) offence of importing child pornography if, like Mr. Scott, they possess the material they import.[14]
(i) Possession’s Distinct Wrongs and Harms
[144] The extent and harmfulness of child pornography has long been on the rise. In the pre-Internet age, it was more challenging and riskier to produce, distribute, and acquire child pornography through the mail or in-person, and the authorities successfully disrupted many production and distribution networks: Badgley Report, vol. 2, at pp. 1139-1210. The Internet transformed this dynamic by enabling perpetrators to produce, distribute, and acquire child pornography more quickly and easily, and with much less risk of detection. This increased the number of people who possess child pornography, incentivized producers to victimize more children in more extreme ways to satisfy their demand for new material and made it harder to identify victims. Further, the Internet enabled perpetrators to form online communities that normalize their crimes and encourage more extreme forms of offending. Finally, because recordings of children’s victimization remain online forever once posted, the Internet intensified the harms victims suffer and extended them into adulthood: R. v. J.S., 2018 ONCA 675, 142 O.R. (3d) 81, at paras. 14-20, 99-104, 120; R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, at para. 26.
[145] Child pornography has also become a global cancer that Canada has international duties to combat. Technological developments made it all too easy for producers from Canada and other developed countries to target vulnerable children from developing countries that often lack adequate child protection and policing mechanisms and disseminate the recordings of their victimization to a global audience: R. v. Booth, [2009] NSWCCA 89, at para. 41. As this cancer metastasized, the world came together to fight it. Canada, and nearly every other country, ratified the Convention on the Rights of the Child, Can. T.S. 1992 No. 3, and the Rights of the Child Protocol, thus pledging themselves to protect children from exploitation by preventing the spread of child pornography and imposing penalties that reflect the gravity of producing, distributing, and possessing it: R. v. Hewlett, 2002 ABCA 179, 167 C.C.C. (3d) 425, at paras. 19-20.
[146] At the dawn of the digital age and as the world came together to combat the spread of child pornography, the Supreme Court largely upheld Canada’s child pornography laws in R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45. Sharpe explains that Parliament criminalized possessing child pornography because the perpetrators of this offence violate children’s dignity, invade their privacy, inflict severe emotional harm, instigate producers to abuse children to meet the demand for child pornography, risk inciting and facilitating other offences against children, and perpetuate pernicious messages that undermine children’s humanity and equality.[15] I unpack these six distinct wrongs and harms in these reasons.
[147] First, people who possess child pornography violate children’s dignity. Because child pornography depicting real children “cannot come into existence without [their] exploitation and abuse” (Booth, at para. 41), perpetrators “possess[] … crime scene images of child sexual abuse” or exploitation: R. v. Hughes, 2014 ONCJ 231, at para. 24; see Sharpe, at para. 169. By possessing and viewing those crime scene images, they violate children’s dignity by perpetuating the exploitation originating from the production of the images and infringing their right not to have the permanent record of their abuse and exploitation viewed by adults: Sharpe, at paras. 92, 158, 169; Audrey Rogers, “The Dignitary Harm of Child Pornography—From Producers to Possessors,” in Carissa Byrne Hessick, ed., Refining Child Pornography Law: Crime, Language, and Social Consequences, (Ann Arbor: University of Michigan Press, 2016) 165, at pp 177-180. They treat children as “voiceless, absent object[s]” that are property to collect like trading cards (Hanna Roos, “Trading the Sexual Child: Child Pornography and the Commodification of Children in Society” (2014) 23 Tex. J. Women & L. 131, at p. 150) and exploit like “props in a perverted show” (D.G.F., at para. 22). This assault on children’s dignity offends their rights and the basic principles of our law, which “will not suffer the insult to the human spirit, that the child should be treated as a thing”: U.S. v. Wiegand, 812 F.2d 1239 (9th Cir. 1987), at p. 1245, cert. denied, 484 U.S. 856 (1987).
[148] Second, people who possess images of the abused and exploited children directly invade children’s privacy. This privacy violation is “extreme”: Sharpe, at para. 241. Child pornography’s very existence violates children’s privacy interest in preventing uncontrolled disclosure of their abuse and exploitation to third parties, an interest so strong that Parliament requires judges to protect it in every child pornography case: U.S. v. Norris, 159 F.3d 926 (5th Cir. 1998), at p. 930, cert. denied, 526 U.S. 1010 (1999); Criminal Code, s. 486.4(3). Perpetrators repeatedly violate that interest, first by acquiring material, and then by cataloguing and viewing it. Like receivers of stolen goods, they acquire stolen recordings whose production and distribution children cannot consent to, thus robbing children of control over to whom, and in what context, to disclose their abuse and exploitation: R. v. Cook, [2004] QCA 469, at para. 21; Hewlett, at para. 24; Andrea Slane, “From Scanning to Sexting: The Scope of Protection of Dignity-Based Privacy in Canadian Child Pornography Law” (2010) 48 Osgoode Hall L.J. 543, at p. 562. These recordings’ permanent nature intensifies the wrong by capturing children’s victimization in detail in a form that people who possess these recordings can access, study, and manipulate: Jarvis (2019), at para. 62.
[149] Third, people who possess child pornography inflict severe emotional harm on children. “It takes great strength and courage to survive sexual violence as a child” because of the myriad physical and emotional harms that it causes: Friesen, at para. 59 (internal quotation omitted). People who possess child pornography make the challenging path of recovery for children much steeper by transforming the initial exploitation and violence of the production into a continuing violation. After the trauma of the production of the recordings of their victimization, children suffer further pain when they learn that unknown perpetrators have accessed and can view those recordings: Sharpe, at para. 92; R. v. Snowden, 2023 ONCA 768, 432 C.C.C. (3d) 52, at para. 93. They then suffer a “slow acid drip of trauma” each time they learn that a perpetrator has acquired and/or viewed those recordings: U.S. v. McDaniel, 631 F.3d 1204 (11th Cir. 2011), at p. 1209 (internal quotation omitted). In short, perpetrators reopen children’s wounds again and again, and, by revictimizing them, prevent and hinder their recovery from the initial violence and exploitation resulting from the production of the recordings: R. c. R.G., 2021 QCCQ 9958, at paras. 21-22; see also D.G.F., at para. 25; Molly Smolen, “Redressing Transgression: In Defense of the Federal Sentencing Guidelines for Child Pornography Possession” (2013) 18 Berkeley J. Crim. L. 36, at pp. 46-47, 51-53.
[150] People who possess child pornography also cause distinct additional harm. They make children feel powerless because they cannot destroy or control the dissemination of child pornography that is posted online, leading them to fear that perpetrators will recognize them in person and target them for additional abuse: D.G.F., at para. 25; R.G., at para. 21. Further, they cause children to become anxious that they are taking pleasure in the recordings of those children’s victimization and even using those recordings to abuse other children: Sharpe, at para. 92; R. v. McCrimmon, 2022 YKCA 1, at para. 15. Finally, they humiliate children and undermine their self-worth by violating their privacy and dignity: Sharpe, at para. 164. Recordings that falsely portray the victim as somehow consenting or enjoying their victimization heighten the humiliation by causing victims to worry about how offenders are misperceiving them. People who possess child pornography thus cause ongoing psychological harm to children that can extend long into adulthood: D.G.F., at para. 25; R.G., at para. 21.
[151] Fourth, people who possess child pornography “instigate the production and distribution of child pornography” and, thus, the sexual abuse and exploitation of children: R. v. Stroempl (1995), 1995 CanLII 2283 (ON CA), 105 C.C.C. (3d) 187 (Ont. C.A.), at p. 191; see Sharpe, at paras. 28, 92, 166, 209, 235. Their willingness to acquire child pornography “necessarily creates a market for the … exploitation of children” (R. v. Liddington (1997), 18 W.A.R. 394, at p. 403) and, thus, “adds to the scale of human misery” (R. v. Toomer, [2001] 2 Cr.App.R.(S.) 8, at para. 6) and fuels a “cycle of abuse” in which producers continue abusing existing victims and seek out new victims (J.S., at para. 101 (citation omitted)). People who possess child pornography actively participate in that market because, just as fewer people would steal if no one wanted stolen goods, fewer people would make child pornography if no one sought it: D.P.P. v. Garside, [2016] VSCA 74, 50 V.R. 800, at para. 71; R. v. Jongsma, [2004] VSCA 218, 150 A. Crim. R. 386, at para. 28. People who seek to possess such images motivate both commercial producers and those who seek prestige or simply the knowledge that others desire the material they make: R. v. Kwok, 2007 CanLII 2942 (Ont. S.C.), at para. 50 (“Kwok (2007)”). They share responsibility for abusing and exploiting children with producers, without whom they could not exist because there would then be no one to abuse children for them by proxy: Norris, at p. 930.
[152] Fifth, possessing and viewing child pornography can incite perpetrators to commit and facilitate their commission of other sexual offences against children. To begin with, it leads them to deny and minimize the wrongfulness of, rationalize and normalize, and even fantasize about sexually exploiting children: Sharpe, at paras. 87-89, 200-203. While some people who possess child pornography compartmentalize their distorted thinking and fantasies from reality, for others, “the line between fantasy and reality [] blur[s]” (Smolen, at p. 58) and they “act[] out [their] fantasy” through contact offending or other offences: R. v. Scrivens, 2019 ABQB 700, at para. 201. They can show material to children to facilitate these offences by lowering inhibitions and blackmailing them to participate: Sharpe, at paras. 91, 205-208; R. v. Moreira, 2013 ONCJ 801, at para. 2. This wrongful behaviour conscripts the recordings of children’s victimization, to whose production and subsequent wrongful use children cannot consent, to fuel a cycle of abuse of both original and new victims: Ian O’Donnell & Claire Milner, Child Pornography: Crime Computers and Society (Cullompton: Willan Publishing, 2007), at p. 74.
[153] People who both possess child pornography and participate in the child pornography subculture expose children to heightened risk. They integrate themselves into a repugnant and often hierarchical community whose currency is child pornography and whose upper ranks are staffed by producers and distributors. Their confederates legitimize their actions and spur them to climb up the community’s ranks by producing and distributing more recordings of children’s victimization, thus transforming possession into a gateway to graduate to even more serious offending: J.S., at paras. 14-20, 49, 99-101; D.G.F., at para. 25; Kwok (2007), at para. 52.
[154] Sixth, people who possess child pornography perpetuate pernicious messages that attack children’s humanity and equality. Children have “absolute dignity and infinite value” and deserve equal respect: Granovsky v. Canada (Minister of Employment and Immigration), 2000 SCC 28, [2000] 1 S.C.R. 703, at paras. 56-57 (quotation omitted); see also Friesen, at paras. 42, 65. Our society’s future depends on respecting these principles so that children can grow healthily from a position of vulnerability by virtue of their age, dependency, and need, into adulthood and leadership: Friesen, at para. 1. These principles’ fundamental status reflects centuries of hard-won progress by moving away from treating children as property for adults to abuse, exploit, and exchange, and towards recognizing children’s rights and the responsibilities that adults owe children: Michel v. Graydon, 2020 SCC 24, [2020] 2 S.C.R. 763, at para. 77, per Martin J. (concurring).
[155] Child pornography inverts these values by “perpetuat[ing] lies about children’s humanity”: Sharpe, at para. 183. It lies to children by normalizing their sexual abuse and exploitation: Sharpe, at para. 205. It also lies to adults. By falsely depicting children seeming to participate in their own exploitation, it erases children’s vulnerability and wrongly suggests they can consent, or that their exploitation is not a real crime: Sabine K. Witting, “The ‘greyscale’ of ‘child pornography’: of mangas, avatars and school girls: Part 2” (2018) 24 C.T.L.R. 73, at pp. 79-80. Further, it sexualizes children’s inequality and vulnerability by portraying them as property for adults to collect, exploit, and exchange, even to the point of glorifying their enslavement. This erases adults’ responsibility towards children and sends the dangerous message that the wants of adults trump the needs of children: at paras. 158, 185; R. v. Miller, 2017 NLCA 22, 354 C.C.C. (3d) 58, at para. 29; Roos, at p. 152.
[156] Canada’s child pornography laws combat these harmful lies because they reawaken the long-banished ideas that children are property for adults to exploit and transfer from owner to owner: Sharpe, at paras. 158, 163, 167, 184-185. Like hate propaganda, these repugnant falsehoods undermine children’s self-respect and belief in their own dignity. And by preaching that it is legitimate to exploit children, these lies risk fostering violence and discrimination: R. v. Butler, 1992 CanLII 124 (SCC), [1992] 1 S.C.R. 452, at pp. 496-497.
(ii) Possessing Child Pornography Is a Grave Offence
[157] Possession is a grave offence because it causes these wrongs and harms. “[C]ourts do not see [possession as] a minor, or victimless crime” (Kwok (2007), at para. 52) or one that merely seeks to prevent future risks to children that have not yet materialized: Smolen, at p. 60. Rather, “possession of child pornography is itself child sexual abuse”: Inksetter, at para. 22 (quotation omitted). People who possess child pornography participate in the producer’s initial sexual abuse of children through the market that their demand creates, and drive demand for even more abuse. They also independently abuse those children by violating their dignity and privacy, which causes them severe emotional harm.
[158] Parliament has responded to society’s increasing awareness of the gravity of this offence by determining that courts should punish it more severely. As this court explained in R. v. Jewell (1995), 1995 CanLII 1897 (ON CA), 100 C.C.C. (3d) 270 (Ont. C.A.), at p. 278, Parliament began to do so in 1993 by establishing a five-year maximum sentence for possessing child pornography when prosecuted by indictment, more than double the two-year maximum for the obscenity offence that formerly applied to making and distributing child pornography: An Act to amend the Criminal Code and the Customs Tariff (child pornography and corrupting morals), S.C. 1993, c. 46, s. 2.[16] Parliament next doubled the maximum sentence when prosecuted by indictment from the initial five-year cap to 10 years in 2015 and quadrupled the maximum sentence for summary conviction prosecutions from the initial six-month cap[17] to two years less a day in successive 2005 and 2015 increases: An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, S.C. 2005, c. 32, s. 7(4) (“Bill C-2”); Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, s. 7(2); Friesen, at paras. 96-100; Inksetter, at paras. 23-24. These increases give effect to Canada’s Rights of the Child Protocol duty to impose penalties that reflect this offence’s gravity: Hewlett, at para. 20; Bill C-2, preamble.
[159] Parliament has also recognized the gravity of this offence by directing courts via s. 718.01 of the Criminal Code to prioritize denunciation and deterrence. Prioritizing denunciation communicates that perpetrators’ sexual exploitation of children is intolerable and combats their attempts to minimize their conduct as harmless or victimless: Inksetter, at para. 16; Friesen, at para. 105; Kwok (2007), at para. 58. It sends a strong message that children are people with infinite value and dignity whose healthy development adults have a responsibility to promote, rather than property for perpetrators to acquire and exploit as if they were slaves to the perpetrators’ whims. Likewise, prioritizing general deterrence is important because, while the certainty of detection is generally more likely to deter than the severity of penalties (R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 113), possession of child pornography is a difficult offence to detect. By imposing stricter sentences, courts compensate for the difficulty of detection by warning would-be perpetrators that, while there is a chance they might escape detection, they will face severe consequences if caught: R. v. Lynch-Staunton, [2012] O.J. No. 313 (S.C.), at paras. 56-57. Many people who possess child pornography are likely to be deterred by the prospect of strict sentences because they often are otherwise law-abiding people of good character and employment without prior convictions: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 73; Kate Warner, “Sentencing for child pornography” (2010) 84 A.L.J. 384, at p. 390.
[160] Courts must follow Parliament’s direction by placing children and the wrongs and harms that people who possess child pornography inflict on them at the centre of the sentencing process. Courts can give significant weight to the personal circumstances and mitigating factors of people who possess child pornography, and to sentencing objectives such as rehabilitation: Friesen, at paras. 91-92, 104. But it is all too easy for those considerations, which focus on the people being sentenced, to overshadow the wrongs and harms they inflict because their victims are all too often invisible. The police struggle to identify the producers of these images and the children they victimize because the producers abuse and exploit those children in private homes or in countries oceans away: J.S., at para. 104; HM Advocate v. Graham, [2010] HCJAC 50, 2011 J.C. 1, at para. 45. Courts must overcome this invisibility by making child victims the central focus: Friesen, at paras. 53, 67, 74-75; see also Bertrand-Marchand, at para. 32. That is why courts can neither prioritize other objectives to the same degree as or higher than denunciation and deterrence, nor use the personal circumstances and mitigating factors of people who possess child pornography to avoid grappling with the wrongs and harms they cause: Friesen, at para. 104; R. v. Porte, [2015] NSWCCA 174, 252 A. Crim. R. 294, at paras. 88, 128.
(iii) Perpetrators’ Degree of Responsibility
[161] Courts must reject myths that minimize the degree of responsibility of those who possess child pornography, and the wrongfulness and harmfulness of their conduct: Friesen, at paras. 43, 87. These myths include that the conduct of those possessing child pornography is harmless and victimless, accidental and passive, caused by medical and psychiatric conditions, or an isolated occurrence: see, e.g., Mary Graw Leary, “The Language of Child Sexual Abuse and Exploitation,” in Hessick, ed., Refining Child Pornography Law 109, at pp. 122-124; O’Donnell & Milner, at pp. 194-195; Smolen, at pp. 53‑55, 70-71. These myths cannot conceal an all-too-obvious reality: People who possess child pornography exploit real child victims callously, deliberately, and repeatedly. Failing to recognize this reality risks “undermin[ing] the credibility of the criminal justice system in the eyes of victims, their families, caregivers, and communities, and the public at large”: Friesen, at para. 43.
[162] To begin with, the conduct of those possessing child pornography is very morally blameworthy because they intentionally exploit vulnerable children: Friesen, at para. 90. Because these children “exist outside [the perpetrator’s] mind,” their very existence and the harm they suffer rebuts the myth that possession is a “psychological crime”: U.S. v. Goff, 501 F.3d 250 (3d Cir. 2007), at pp. 258-259. By seeking out child pornography, people who possess this material also wrongfully foster demand that drives more victimization and run the risk that the material they seek to acquire and view could incite and facilitate the commission of other offences against children.
[163] Further, possession is a “callous” crime because perpetrators are confronted with child abuse and exploitation that would horrify and repulse right-thinking people each time they view the material: Booth, at para. 42. They display a disturbing lack of empathy and compassion by continuing to collect and view this material without considering the plight of the victims it depicts: D.P.P. v. D’Alessandro, [2010] VSCA 60, 26 V.R. 477, at para. 23; Lynch‑Staunton, at para. 51.
[164] Moreover, possession is deliberate, not accidental or passive. This crime is “‘committed specifically by choice[s]’” to break down the legal barriers against sexually exploiting children by acquiring and maintaining the material and expanding their collection: R. v. O’Donovan, 2021 ABPC 216, at para. 28, quoting R. v. Hammond, 2009 ABCA 415, 249 C.C.C. (3d) 340, at para. 11; Liddington, at pp. 402-403; Roos, at p. 149. Courts thus should not recast people who possess child pornography as victims of its easy availability. Likewise, while courts can consider mental illnesses that contribute to people’s decisions to possess child pornography (Bertrand Marchand, at para. 128), they should not assume that psychiatric conditions like pedophilia compel those people to possess child pornography. Both forms of minimization wrongly excuse people who possess child pornography from responsibility for their choices and undermine Parliament’s prioritization of deterrence and denunciation: Friesen, at para. 132; U.S. v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc), at pp. 1198‑1200, cert. denied, 563 U.S. 917 (2011); Porte, at paras. 71-72.
[165] Finally, possession involves repeated conduct. Possession is a continuing choice because people who possess child pornography do not merely access material once but rather retain it, often indefinitely or for a significant period: Jongsma, at para. 28; Hammond, at paras. 6, 12. Further, they often make deliberate choices to acquire more material, organize their collection, and repeatedly view their images, victimizing children each time they do so: Liddington, at pp. 402-403; Inksetter, at para. 22. These choices demonstrate that possession generally is neither “a momentary lapse” nor an isolated act: D.P.P. v. Zarb, [2014] VSCA 347, 46 V.R. 832, at para. 31. The fact that prosecutors often charge numerous instances of acquiring, collecting, and viewing many images under one count should not distract courts from the reality that people who possess child pornography have usually engaged in numerous episodes of criminal conduct: Friesen, at para. 132; R. v. De Leeuw, [2015] NSWCCA 183, at para. 116; Smolen, at pp. 70-71.
(iv) The Aggravating and Mitigating Factors for Possession
[166] Ontario courts use the non-exhaustive list of aggravating and mitigating factors that Justice Molloy established in 2007 to sentence people who possess child pornography. She recognized the following six aggravating factors: (1) criminal record, (2) production and distribution, (3) size of the collection, (4) nature of the collection (including the age of the children and the degree of depravity and violence depicted), (5) the perpetrator’s risk to children, and (6) payment for child pornography. She also mentioned youth, good character, insight, remorse, treatment, guilty pleas, and stigma and collateral consequences as mitigating factors: Kwok (2007), at para. 7. I clarify and update this list of factors to reflect Friesen and other subsequent developments in the law.
[167] First, the size of the collection is not determinative and should be considered together with the number of real child victims, the degree of organization, and the ratio of videos to still images. In general, the number of different children depicted is more aggravating than large collection size because people who victimize more children should expect to receive “significantly higher sentences”: Friesen, at para. 133. Indeed, large collection size matters in large part because courts infer from it that the collection contains many victims: R. v. Gent, [2005] NSWCCA 370, 162 A. Crim. R. 29, at para. 99. The level of organization is also aggravating because it shows that people who possess child pornography have more interest in the material: R. v. Martin, [2014] NSWCCA 283, 246 A. Crim. R. 477, at paras. 50, 59. Further, videos are more aggravating than still images because, by adding more realistic and graphic detail, they are more invasive and harmful privacy violations: Alisdair A. Gillespie, Child Pornography: Law and Policy (New York: Routledge, 2011), at pp. 255-256; Jarvis (2019), at para. 62. For all these reasons, stricter sentences for smaller-size collections are appropriate if other aggravating factors demand it: R. v. McCaw, 2023 ONCA 8, 165 O.R. (3d) 179, at paras. 31-33.
[168] Second, the seriousness of the collection’s nature turns on the depicted activity’s degree of harmfulness and wrongfulness. Thus, material depicting more physically intrusive activities that feature additional violence beyond that inherent in sexual offences against children is aggravating because those features may cause additional harm: Warner, at p. 386; Friesen, at paras. 139, 152. Some sentencing judges use image ranking tools to account for this, as in R. v. Jonat, 2019 ONSC 1633. But judges who do so must recognize that the harms and wrongs of such recordings do not depend on penetration, and that other forms of exploitation can cause severe emotional harm, even absent additional violence and even if victims appear to participate. For instance, recordings of sexualized posing are serious because they show horrifying and profoundly harmful sexual exploitation: Friesen, at paras. 140-146, 152; Snowden, at para. 102; D.P.P. v. Watson, [2016] VSCA 73, 259 A. Crim. R. 327, at paras. 41-46.
[169] Third, courts should consider whether the collection depicts real children. Some people who possess child pornography collect stories or virtual images and videos that do not depict real children. Possessing this material is unlawful and serious because, like real child material, it incites and facilitates sexual offences against children, spreads lies about children that normalize sexual activity between adults and children, and may act as a gateway that leads people who possess it to seek material depicting real children: Sharpe, at para. 38; R. v. Mahannah, [2013] O.J. No. 6330 (S.C.), at paras. 11‑15; Ontario (Attorney General) v. Langer (1995), 1995 CanLII 7422 (ON SC), 123 D.L.R. (4th) 289 (Ont. S.C.), at p. 303. However, the possession of recordings of virtual or fictional children is less serious recordings depicting the abuse of real children because the former’s production does not victimize real children: Snowden, at para. 99; R. v. D.L., 2012 ONSC 2791, at para. 43.
[170] Fourth, I would add duration, frequency, collaboration with other offenders, planning, organization, sophistication, and participation in the child pornography subculture as additional aggravating factors. The duration of possession and the frequency of downloading and viewing images increase the moral blameworthiness of people who possess child pornography by showing that their conduct is entrenched and increasing the number of times they victimize the depicted children: Friesen, at paras. 131-133; Hammond, at para. 12; Inksetter, at para. 22. Collaboration, planning, organization, and sophistication are aggravating and trigger a greater need for deterrence because perpetrators who employ these methods can cause greater harm and avoid detection more easily: Clayton C. Ruby, Sentencing, 10th ed. (Markham, Ont.: LexisNexis, 2020), at §§ 5.4, 5.12, 5.97; D.G.F., at para. 25. Participation in the child pornography subculture is also aggravating because, by reinforcing the offending behaviour of people who possess child pornography and encouraging them to graduate to even more serious offending, it increases the risk to children: D.G.F., at para. 25.
[171] Fifth, the absence of aggravating factors like the actual production and distribution of child pornography, the depiction of very young children, or payment to acquire child pornography is not mitigating. Courts must still address the distinct wrongs and harms inherent in the possession of child pornography and avoid the trap of imposing disproportionately low sentences in cases involving older preteen and teenage children. Courts must also recognize that people who do not pay for the child pornography they possess still motivate those producers of child pornography who seek to win respect rather than money: Friesen, at para. 136; Kwok (2007), at paras. 8, 50; Porte, at para. 66; De Leeuw, at para. 72(i).
[172] Sixth, good character, employment, and stigma are less significant factors in sentencing people who possess child pornography and cannot function as disguised class discrimination. Prior good character and employment receive only limited weight because many perpetrators are people of otherwise good character who secretly commit the offence, and possession usually involves repeated conduct over a significant period rather than an out-of-character isolated act, and it is very blameworthy for people of otherwise prior good character to fail to appreciate the wrongfulness of their actions: R. v. M.V., 2023 ONCA 724, 169 O.R. (3d) 321, at para. 69; R. c. S.V., 2021 QCCQ 7297, at paras. 58‑59; R. v. Spiller, 1969 CanLII 950 (BC CA), [1969] 4 C.C.C. 211 (B.C.C.A.), at p. 214. Stigma also receives less weight because it is a predictable consequence of conviction: R. v. H.S., 2014 ONCA 323, 308 C.C.C. (3d) 27, at para. 39. Finally, courts cannot misuse these factors to discount sentences for well-off perpetrators with professional careers because they supposedly have better character and employment and stand to lose more and face greater stigma than people who already face disadvantage. Such class bias violates the rule of law principle of equality under the law by giving preferential treatment to the rich, privileged, and powerful: R. v. Carr, 1937 CanLII 130 (ON CA), [1937] O.R. 600 (C.A.), at pp. 603, 605; R. c. Marchessault (1984), 1984 CanLII 5684 (QC CA), 41 C.R. (3d) 318 (Que. C.A.), at pp. 321-322; Ruby, at § 6.29.
[173] Finally, courts assessing remorse and insight should focus on whether people who possess child pornography recognize and express remorse for wronging and harming real children. Conversely, these factors are entitled to less weight if the people being sentenced continue to engage in distorted thinking and minimize or excuse their actions as harmless fantasies: Lynch-Staunton, at paras. 50-53, 55; Kwok (2007), at paras. 35-37, 39.
(b) The Governing Range for Possession of Child Pornography
[174] “The sentencing range for possession of child pornography is uncertain” because this court has not defined one and sentencing judges have identified divergent ranges: M.V., at para. 94; see R. v. Machulec, 2016 ONSC 8219, at pp. 5-6. Because sentencing judges need quantitative guidance, the time to end that uncertainty is now. It is our responsibility to update the range to account for Friesen and the legislative increase to the maximum sentence: M.V., at paras. 56, 98; R. v. Parranto, 2021 SCC 46, 463 D.L.R. (4th) 389, at paras. 21-23, 56-57.
[175] The range for possession has been rising even before Friesen and Parliament’s 2015 maximum sentence increase. In 2007, Justice Molloy provided a historical snapshot of a six-to-eighteen-month range at a time when this court’s possession sentencing precedents were lenient: Kwok (2007), at para. 5; D.G.F., at para. 21. The very next year, the Supreme Court of Canada signalled that the eighteen-month upper end was no longer applicable by affirming a three-year sentence for possession as proportionate: R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at paras. 8, 53-54; see R. c. Régnier, 2018 QCCA 306, at para. 49. Thus, as courts progressed along the learning curve following L.M. (D.G.F., at paras. 21, 28-29), sentencing judges in pre-Friesen cases (where the offences predated the 2015 maximum sentence increase) set the range’s upper end as three-and-one-half to four years: Lynch-Staunton, at para. 79; R. v. Branco, 2019 ONSC 3591, at paras. 23-24, 101. While some sentencing judges continued to impose lower sentences, in my view, this merely reflects the wide variety of circumstances in which the possession offence can be committed as well as, in some cases, confusion about the applicable range: M.V., at paras. 92, 94-97.
[176] I account for Friesen and the 2015 maximum sentence increase by raising the three-and-one-half to four-year upper end of the range for possession of child pornography identified in Lynch-Staunton and Branco to five years. This raise empowers sentencing judges to respond to the “staggering and systematic nature” of the wrongs and harms that people who possess child pornography can cause in cases involving numerous victims: Friesen, at para. 133 (quotation omitted). It also fits comfortably with post-Friesen, post-legislative change cases in which this court imposed or affirmed three- or four-year sentences for possession of child pornography, despite the absence of significant aggravating factors and the presence of mitigating factors: McCaw, at paras. 31-33, 36; R. v. Olivetti, 2022 ONCA 142, at paras. 3 & 9. I decline to set a lower end for the possession range because, like child luring, possession can be committed in a wide variety of circumstances and is sometimes prosecuted summarily, which lowers the maximum sentence to two-years-less-a-day: M.V., at paras. 84-85, 92; R. v. John, 2018 ONCA 702, 142 O.R. (3d) 670, at para. 39.
[177] The increase I set out is measured and harmonizes with related sentencing ranges. The upper end matches the five-year upper end of the range for child luring, which carries the same maximum sentence as possessing child pornography: M.V., at para. 87. Further, it respects Parliament’s choice to set higher maximum sentences for contact offences and for the production and distribution of child pornography than for simple possession because it is lower than the ranges for those offences: R. v. Parker, 2024 ONCA 591, at paras. 31-32; M.V., at paras. 81-82; D.G.F., at para. 29.
[178] Courts should situate cases on the range by assessing the aggravating and mitigating factors these reasons outline and by comparing them to the facts of decided cases. The most useful precedents are post-Friesen, post-2015 legislative change cases, especially those that, like this court’s decisions in Inksetter, John, McCaw, Olivetti, and R. v. Rule, 2023 ONCA 31, show a deep understanding of the gravity and degree of responsibility of those possessing these images consistent with these reasons: Friesen, at paras. 108-110. I note that in Inksetter, a five-year sentence for the possession count likely would have been appropriate but for the early guilty plea, lack of a criminal record, low risk, remorse, insight, and treatment: at paras. 7-9, 12, 27. The length of sentence imposed in cases that applied the 2007 Kwok range has limited utility going forward because that range’s upper end has long been surpassed.
[179] This brings me to the appropriateness of conditional sentences for possession. First, judges should situate cases on the range and determine whether an under two-year sentence is appropriate before deciding whether it should be served in the community. They must also determine that a community sentence would not endanger community safety: McCaw, at paras. 20-26. Second, even if these conditions are met, courts must decide whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing, especially the fundamental principle, proportionality. This test requires considering not only personal circumstances and mitigating factors of people who possess child pornography, but also the severe wrongs and harms that they cause, their moral blameworthiness, and Parliament’s prioritization of deterrence and denunciation: McCaw, at paras. 27-29; R. v. M.M., 2022 ONCA 441 at paras. 15-16. As this court held in M.M., applying this second step ordinarily results in custodial sentences because Parliament has prioritized denouncing and deterring the wrongs and harms that people who possess child pornography cause real children: at paras. 15-16.
[180] I must reconcile the “exceptional circumstances” term that M.M. used to express this point with the Supreme Court’s decisions in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, and Parranto. At first glance, M.M.’s use of this term might seem contrary to these cases, which respectively hold that appellate courts can neither create presumptions that conditional sentences are inappropriate for specific offences (Proulx, at paras. 80-83), nor require exceptional circumstances to depart from a range (Parranto, at para. 40).
[181] But in my respectful view, M.M. did not and could not have intended to depart from Proulx by creating an offence-specific presumption against conditional sentences. Rather, it used the “exceptional circumstances” term to convey that, since Proulx, Parliament has increased maximum sentences and prioritized denunciation and deterrence for sexual offences against children and, further, that the courts’ understanding of the harmfulness and wrongfulness of these offences has deepened: Friesen, at paras. 109-110; see M.M., at paras. 13-15. Thus, while there is no presumption against conditional sentences, these post-Proulx changes require more compelling personal circumstances, mitigating factors, and/or the absence of aggravating factors, to justify a conditional sentence than might have been the case when Proulx was decided more than two decades ago.
[182] Nor, in my view, did M.M. intend to depart from Parranto by requiring exceptional circumstances to impose a conditional sentence. Rather, M.M. used “exceptional circumstances” as shorthand for personal circumstances and mitigating factors that are sufficiently compelling to make a conditional sentence proportionate, as in R. v. Padda, 2019 BCCA 351, at para. 36. Not only is there no closed list of such circumstances and factors (M.M., at para. 16), but multiple seemingly non-exceptional factors taken together, such as being a young first offender with family support who poses little risk and takes responsibility for his actions, can collectively render a conditional sentence proportionate: R. v. Faroughi, 2024 ONCA 178, 435 C.C.C. (3d) 1, at para. 99. This is consistent with Parranto’s holding that sentencing must focus on proportionality, not pigeonholing cases into ill-defined exceptional circumstance categories: at para. 40; see R. v. Ellis, 2022 BCCA 278, 417 C.C.C. (3d) 102, at para. 118.
(c) The Mandatory Minimum for Importing Child Pornography Is Unconstitutional
[183] The s. 163.1(3) Criminal Code importing offence of which the trial judge convicted Mr. Scott carries a mandatory minimum punishment of one-year imprisonment. The trial judge declared it to be of no force or effect under s. 52 of the Constitution Act, 1982 because it violates s. 12 of the Charter, which prohibits cruel and unusual punishment. I agree. In John, this court held that the former six-month mandatory minimum for the related possession offence was unconstitutional because it applied to, for instance, an 18-year-old who inadvertently received, but failed to delete, an intimate image depicting a friend’s 17-year-old girlfriend: at paras. 38-40. As the trial judge reasoned, this same reasonable hypothetical applies, in modified form, to importing since an 18-year-old who exited and re-entered Canada with that image on their digital device could be convicted of importing. The modest added gravity of importing in this scenario relative to the reasonable hypothetical from John does not justify a one-year mandatory minimum that is double the six-month mandatory minimum that John ruled was unconstitutional. The Crown admits it has no reasonable counterargument.
(d) The Trial Judge Should Have Imposed a Three-Year Sentence
[184] In my respectful view, the Crown is correct that the trial judge, who did not have the benefit of the sentencing principles these reasons outline, erred in principle by failing to consider the many children Mr. Scott victimized and erroneously minimizing his moral blameworthiness. These errors displace deference and require this court to determine a fit sentence itself: Friesen, at paras. 26-27, 34.
[185] First, I agree with the Crown that the trial judge did not consider the large number of children Mr. Scott victimized. He exploited each child depicted in the 89 images and 57 videos displaying real children that he possessed. While this mid-size collection was smaller than in some other cases, it contained a significant number of victims rather than numerous images of only one or a few victims. Mr. Scott thus violated many children’s dignity and privacy and, through his willingness to acquire images of their abuse and exploitation, he contributed to their initial victimization and caused them serious harm. As “Maureen” described in detail in her victim impact statement, Mr. Scott interfered with her efforts to recover from the violence of the initial production, made her feel powerless and anxious, violated her privacy and dignity, and caused her to feel humiliated and question her self-worth. The mother of “Pia,” another depicted child, described the fear, insecurity, and emotional harm that Mr. Scott and other perpetrators inflicted on her child, as well as the secondary victimization the mother herself suffered. “Maureen” and “Pia” are only two of Mr. Scott’s victims, most of whom remain unidentified and voiceless.
[186] The trial judge did not give effect to the harm to the wrongs and harms Mr. Scott inflicted on each of those victims. Instead, he reasoned that most of Mr. Scott’s material did not depict real children. I agree with the trial judge that the virtual and story material, though still very grave, was less serious than the real child material because its production did not involve abusing real children. But he overlooked all the victims the real child material depicted except for “Maureen” and “Pia.” He also had to consider the wrongs and harms Mr. Scott caused to the numerous other unidentified and invisible victims.
[187] Second, the trial judge erroneously minimized Mr. Scott’s moral blameworthiness because he did not consider the long duration of Mr. Scott’s offending. Mr. Scott told police in a statement that the defence agreed was admissible at sentencing that he collected material for three decades, and the psychologist who assessed him reported that he was a persistent user of child pornography since his teenager years. This increased his moral blameworthiness by showing that his actions were prolonged and repeated. This undercuts the trial judge’s conclusion that Mr. Scott had “previously good character.”
[188] Because the trial judge’s reasons show that these errors impacted his decision to impose a 23-month conditional sentence, I must determine the appropriate sentence for Mr. Scott afresh. I conclude that the trial judge should have imposed a three-year sentence and that a conditional sentence was accordingly unavailable.
[189] Many serious features of Mr. Scott’s actions favour a higher sentence. He victimized and severely harmed many real children, and his long-standing possession and use of child pornography intensified his moral blameworthiness. Further, while the virtual and story material did not depict real children, its quantity and nature were aggravating. Mr. Scott possessed approximately 3,000 files,[18] far more than the 500-file collections that this court has characterized as very large: R. v. Brown, 2022 ONCA 516, at para. 14. This virtual and story material depicted or described especially harmful and wrongful activities, such as aggressive sexual activity, bondage, bestiality, and torture. It accordingly perpetuated especially pernicious messages that attack children’s very humanity and equality.
[190] Further, Mr. Scott’s circumstances were less mitigating than those of many other people sentenced for possessing child pornography. He did not plead guilty and there was no evidence that correctional authorities could not address his health conditions. I cannot place much weight on his otherwise good character, advanced education, and successful career as an executive due to the long duration and frequency of his offending, and to avoid class bias in sentencing. If anything, Mr. Scott faces fewer collateral consequences than many other people sentenced for possessing child pornography because he is long-retired. I also cannot place much weight on the trial judge’s finding that Mr. Scott did not know that non-real-child material was illegal because, unlike in other cases (see, e.g., Mahannah, at paras. 23, 27), he did not point to any basis for this mistake of law. He could have and should have educated himself on Canada’s child pornography laws, whose clear text that would have dispelled this mistaken belief was only a click away during the decades he instead built up his collection of child pornography: R. v. Bridgeman, 2011 ONCJ 117, at para. 48.
[191] Moreover, I do not agree with the trial judge’s apparent conclusion that Mr. Scott’s characterization of his actions as mere fantasies and claim that he did not “like” images depicting real children were mitigating. Rather, Mr. Scott’s self-description of his actions reflected his distorted, myth-based thinking, minimized his possession of real child images as a psychological crime, and overlooked the real children who he severely wronged and harmed. Because he used images depicting children’s victimization to fuel those fantasies, they were an instrument of harm to the real depicted children, and they increased the risks of inciting and facilitating the type of abuse of children that Parliament sought to prevent by amending the Criminal Code to criminalize possession of child pornography. Similarly, Mr. Scott’s claimed lack of enjoyment of his crimes did not diminish the severity of the wrongs and harms he inflicted on his victims. Rather, what mattered most from the perspective of those victims, which Friesen directs courts to consider (at para. 172), is that he abused them by treating the recordings of their violent victimization as property to exploit and add to his so-called collection like so many trading cards. The law does not suffer this insult to the human spirit.
[192] Nonetheless, I agree with the trial judge that Mr. Scott has some mitigating circumstances and has made progress towards insight and treatment since his arrest. His advanced age, low risk, treatment prospects, and role as a caregiver to his elderly spouse, who has suffered two strokes, are significant mitigating factors. So are the Agency’s breaches of his Charter rights. The trial judge could consider these breaches at sentencing because they relate to the circumstances of Mr. Scott and his importing offence. I reach this conclusion because the Agency committed those breaches during the events leading to his arrest, and they were causally connected to the Agency’s discovery of the incriminating evidence: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 63; Griffith, at para. 87. I agree with the trial judge that these breaches provide significant mitigation because, while less significant than in Pike, they still invaded the highly private information on Mr. Scott’s devices.
[193] In my view, a three-year sentence is appropriate because the gravity and moral blameworthiness of Mr. Scott’s offence is roughly similar to McCaw, where this court imposed that sentence. As in McCaw, Mr. Scott possessed child pornography for decades. Further, his offence and circumstances are more aggravating and less mitigating than McCaw in several ways, including his larger collection, importing of material across the border, and lack of any mental health challenges. Mr. McCaw also pled guilty, which was another mitigating factor that is not present in Mr. Scott’s case. These make up for the absence of certain aggravating factors from McCaw, including a prior record for child pornography offences, treatment failures, more frequent viewing, and the especially harmful nature of the depicted acts.
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