R. v. Elias, 2026 ONCA 112
[18] The proliferation and easy availability of child sexual abuse and exploitation material is “a pervasive social problem that affects the global community and its children”: R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, at para. 22. A person who possesses such material is sexually abusing children. As canvassed at length by Tulloch C.J.O. in Pike, at paras. 143-157, possession of child sexual abuse and exploitation material harms children by treating them as “voiceless, absent” objects, and by invading their privacy. Collecting this material increases the market for its production: Pike, at para. 151. The children depicted in child sexual abuse and exploitation material suffer emotional harm during its creation, and they are re-victimized each time the images are viewed: Pike, at para. 149. The sharing of this material endlessly perpetuates the sexual abuse, normalizes it, and may incite the commission of other sexual offences against children: Pike, at paras. 151-152, 157. Chief Justice Tulloch’s description of the harms caused by the possession of child sexual abuse and exploitation material was endorsed by the Supreme Court in Quebec (Attorney General) v. Senneville, 2025 SCC 33, at para. 31.
[19] In sentencing offenders for the sexual abuse of children, including possession of CSAEM, courts must prioritize denunciation and deterrence: s. 718.01 of the Criminal Code; Inksetter, at para. 16; and Pike, at para. 159. The court’s focus must be on the children abused in the making, distribution, and viewing of these materials: Pike, at para. 160. In particular, courts must recognize and give effect to (1) the inherent wrongfulness of the offences; (2) the potential harm to children that flows from the offences; and (3) the actual harm that children suffer as a result of the offences: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 76.
[20] In Pike, this court clarified some of the aggravating factors that should be considered in sentencing an offender for possession of child sexual abuse and exploitation materials. I will return to these factors later in these reasons.
[21] Courts cannot minimize the harms caused by the offender by focusing unduly on their personal circumstances and giving priority to the sentencing objectives of rehabilitation and deterrence. The latter includes both specific and general deterrence; as a result, deterrence may weigh in favour of incarceration even if there is no significant risk that the offender will reoffend. Sentencing objectives such as rehabilitation may be given significant weight, but not priority or equivalency to deterrence and denunciation: R. v. Lis, 2020 ONCA 551, 152 O.R. (3d) 125, at paras. 47-48, 53; Friesen, at paras. 101-104.
The sentencing judge erred in principle by failing to recognize aggravating factors
[22] A sentencing judge has a wide latitude in determining a fit sentence: R. v. Grant, 2016 ONCA 639, 342 C.C.C. (3d) 514, at para. 162. This court may intervene only if the sentencing judge made an error of law or an error in principle that had an impact on the sentence, or imposed a sentence that was demonstrably unfit: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11.
[23] In this case, the sentencing judge erred in principle by failing to recognize significant aggravating factors, and this had an impact on the sentence imposed.
[24] First, although he recognized that the size and depravity of Mr. Elias’ collection were relevant to sentencing, the sentencing judge failed to identify the nature of the collection and the number of children victimized as distinct and further aggravating factors.
[25] In considering the gravity of the offence of possession of CSAEM, a court must consider whether the contents of a collection depict real children: Pike, at para. 169. Here, the images and videos described on the record featured real children and toddlers as opposed to drawings or computer-generated avatars. Mr. Elias agreed that these images and videos were representative of the collection. His possession of recordings depicting the abuse of real children increases his moral blameworthiness.
[26] The number of child sexual abuse victims depicted in an offender’s collection is also a distinct aggravating factor. Offenders who victimize more children should expect to receive “significantly higher sentences”: Friesen, at para. 133, cited in Pike, at para. 167. Given the size of Mr. Elias’ collection, thousands of children were victimized in its creation, and re-victimized by the sharing and re-viewing of their abuse. This is an even more aggravating factor than the size of the collection: Pike, at para. 167.
[27] Second, the sentencing judge failed to recognize the duration of time during which Mr. Elias collected the CSAEM and the frequency of his engagement with it as aggravating factors. Evidence that an offender has amassed a collection over time and that they interact with it regularly increases their moral blameworthiness because it shows “their conduct is entrenched and increase[es] the number of times they victimize the depicted children”: Pike, at para. 170.
[28] The sentencing judge’s reasoning on this issue was as follows:
Respectfully, I disagree with the Crown that this Court can reasonably find as aggravating factors that it took Elias “several years” to compile his collection of child pornography and/or that he viewed the child pornography “very frequently”...
There is nothing in the agreed statement of facts that would support either one of those alleged aggravating factors.
At its highest, the evidence as a whole suggests that Elias watched the child pornography approximately once per week and first stumbled upon online child pornography sometime after he started using a specific computer application in 2017 (page 3 of Dr. Gojer’s report marked Exhibit 4).
These alleged aggravating factors not being agreed to by the offender, Elias is entitled to proof of them beyond a reasonable doubt. R. v. Richardson, 1992 CanLII 7710 (ON CA). I find that the evidence falls short of that standard of proof in this case, on these two points.
[29] In my view, the sentencing judge’s rejection of these two aggravating factors reflects a misapprehension of the evidence.
[32] The huge size of the collection and its presence on three different devices, acknowledged in the agreed statement of facts, are features consistent with these admissions.
[33] The omission in the agreed statement of facts of a reference to the date when Mr. Elias began collecting the images and videos and how frequently he viewed them is not determinative. The aggravating factors are proved based on Mr. Elias’ admissions to third parties, the reliability of which were not in question.
[34] Finally, Mr. Elias’ engagement in the child pornography subculture is an aggravating factor that the sentencing judge should have considered.
[35] Mr. Elias was not a passive viewer of child sexual abuse and exploitation material. His IP address was flagged to the police after he uploaded a pornographic video featuring a prepubescent girl to his account and shared it in a Kik chat using an alias. He told Dr. Gojer that he “collected videos that others sent him.” He did not dispute that he, in turn, sent CSAEM to “someone he met online.” As the sentencing judge noted, Mr. Elias’ collection included images that he himself had taken, surreptitiously, of the buttocks of girls.
[36] As observed in Pike, at para. 170, citing R. v. D.G.F., 2010 ONCA 27, 98 O.R. (3d) 241, at para. 25, active participation in the child pornography subculture is aggravating. 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”: Pike, at para. 170. This risk was actualized when Mr. Elias began generating his own images and sending material to others.
[37] The sentencing judge’s failure to consider these additional significant aggravating factors necessarily had an impact both on his determination that a sentence under two years was appropriate and that a conditional sentence was proportionate and fit.
The sentencing judge erred in principle by failing to prioritize denunciation and deterrence
[38] As Tulloch C.J.O. explained in para. 160 of Pike:
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. 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.… 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. [Citations omitted.]
[39] Although the sentencing judge acknowledged that denunciation and deterrence were primary sentencing goals, he did not give them priority. He instead focused on the offender and his circumstances. This was an error in principle.
[40] The sentencing judge’s reasons are not child-centered. They do not give primary consideration to the children victimized by Mr. Elias’ offence and the nature of the harm they suffered. After a brief description of some of the images and videos in Mr. Elias’ collection, the reasons shift in focus to a lengthy review of Mr. Elias’ personal circumstances, his mental health, the collateral consequences of his criminal charge and conviction, his rehabilitative potential, and the negative impacts of a custodial sentence on him and his father.
[43] The danger of minimizing the active role played by a possessor of CSAEM in wrongdoing was again highlighted in Pike, at para. 164. Chief Justice Tulloch cautioned that:
Possession [of child pornography] 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. 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, 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. [Citations omitted.]
[44] The sentencing judge minimized Mr. Elias’ moral culpability in this way, even though Mr. Elias amassed a collection of almost 23,000 images and 741 videos of child sexual abuse and exploitation over four to five years, during which time he viewed it and masturbated to it weekly, engaged with others in the CSAEM subculture, took videos of children in public, and shared child sexual abuse and exploitation material with others on the internet.
[45] This is not to suggest that an offender’s personal circumstances are irrelevant or that mental health issues cannot be found to reduce an offender’s moral culpability. As Friesen and Pike hammer home, however, the court must center its analysis on the harms flowing to the child victims of the offence and the moral culpability inherent in the possession of child sexual abuse and exploitation material.
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