Jail Going Up – Court of Appeal

3 years

ONCA upholds sentence of trial court, three years.  Trial court erred by sentencing on 2500 (execution of warrant) +500 files (initially downloaded using Downpour) 3000 files.  But the 2500 files could not be proven (were deleted and should not have been counted).  ONCA says sentence of 3 years is OK for the remaining 500 files.

Quantity of Collection

500 Cat-1 files.

Nature of Collection

Mostly children <10 years.

Many “severe”, that is, depicted sexual violence against children.

Para 14

With respect to the sentence appeal, we accept that the trial judge erroneously considered that there were 2,500 files. Apart from the 500 files identified by Det. Constable Kerr and captured in the indictment, for which the Crown sought convictions, it could not be determined when the files were created, downloaded or deleted. However, as 500 files is also a very large quantity warranting a significant sentence, this error had no impact on the fitness of the sentence imposed: see R. v. Walker, 2021 ONCA 863, and R. v. Carlos, 2016 ONCA 920. Further, the trial judge appropriately considered the content of the child pornography as an aggravating factor. Accordingly, we see no reason to interfere.

R. v. Brown, 2022 ONCA 516 (CanLII), at para 14.

Sentencing for Possession and Make Available

2 years, 9 months make available

(concurrent with 1 year on possession)

381 images/1,007 videos (at the time, the largest video collection reported in Ottawa region), very late guilty plea (eve of trial), horrific imagery.

R v Bock, 2010 ONSC 3117 (CanLII) , per Henderson J.: Exceptionally large collection of videos, very late guilty plea, horrific imagery (including babies and young toddlers), the pictures and videos involved almost every imaginable sexual act: para 17.

The Judge distinguishes between sentences that were imposed for simple possession of child pornography as opposed to making available child pornography.  In light of that distinction reviews 6 Ontario cases ranging between 2007 and 2009.  In 2 of the cases reviewed (Vasic, Connor), the sentence follows a conviction at trial, not an early guilty plea.

Sentencing judge distinguishes between sentences that were imposed for simple possession of child pornography as opposed to making available child pornography.  According to the sentencing judge, the latter offence should generally result in a more significant sentence.  In many cases, as in the present case, an offender is convicted of both making available and possession.  In cases, where the offender is convicted of both making available and possession, making available offence attracts the longer sentence.  The possession offence is usually served concurrently with the making available sentence: at para. 44.

18 months + 3 years probation

Possession/making available, 5116 images/973 videos, guilty plea, content of collection fell on extreme end of spectrum, possible risk offender would pursuing child pornography again (para. 8), insight and co-operation with police.

In R. v. Barmashi, [2016] O.J. No. 621, ( per Justice McWatt) the accused pled guilty to possession and making available.  He had no prior criminal record. The offender had a large collection of child pornography consisting of infants, toddlers and prepubescent boys and girls.  The collection fell on the extreme end of the spectrum of child pornography (para. 22), and included toddlers, bondage and bestiality.  Offender had indicated an enthusiasm to spread child pornography prior to arrest. The sentence imposed was 18 months + 3 years probation.

2 years for possession + 3 years for make available (concurrent)

Accessing/possession/distribution of child pornography, convicted at trial, 43 videos/17 images, child pornography material particularly heinous (para 6), some responsibility taken, no expression of remorse.

In R. v. Walker, [2021] ONSC 837, (per Justice Byrne) the accused was convicted of accessing, possession and distribution of child pornography at trial. The material included particularly heinous sexual assaults on child as young as 3. The offender also made some of the material available to others online (para 54). He had no prior criminal record. Offender took some responsibility for his conduct (para 14) however he expressed no remorse (para 14). He indicated that he would attend counselling if directed by the court but had not done so on his own accord (para 15). No evidence of the offender’s risk of recidivism was offered (para 74). Offender sentenced to 2 years for possession and 3 years for distribution, to be served concurrently. SOIRA for life, s. 161(1)(d) for 10 years with exceptions, DNA (para 86).

3 years + 10 months on make available + 3 years, 4 months for possession (concurrent)

Possession/distribution child pornography, guilty plea, 47,400 images/3,100 videos, material on the extreme end of the spectrum, Indigenous offender, traumatic upbringing, prior criminal history (para 20), moderately high risk to reoffend (para 42), amenable to counselling.

In R. v. Enosse, [2019] ONSC 6521, the offender pled guilty to 1 count of possession and 1 count of distribution of child pornography. The offender was found with a very large collection of child pornography material including 47,400 images and 3,100 videos that included rape scenes and bestiality (para 31). Offender is an Indigenous individual who had a traumatic and violent upbringing (para 17-18). Offender had a previous criminal history for sexual interference and sexual assault and served 18 months in prison. Offender has been diagnosed with a sexual behaviour disorder and poses a moderately high risk of recidivism (para 42). Offender sentenced to 3 years and 10 months for make available and 3 years and 4 months for possession. SOIRA and s. 161(a), (b), (c), (d) for life.

1 year

Possession of child pornography, 11 videos, lengthy videos (100 mins), first time offender, real sexual abuse of children

In R. v. Messier, [2021] O.J. No. 884, the first time offender was convicted of one count of possession of child pornography after he was found in possession of 11 lengthy (100 minutes) child pornography videos. The videos depicted adult individuals sexually abusing children between the ages of 4 and 12. The offender was sentenced to 1 year in prison.

2 years + 2 years’ probation

Possession of child pornography, guilty plea, 1859 videos/1042 images, first time offender, limited insight, content particularly heinous

In R. v. Russell, [2020] O.J. No. 3841, the offender pled guilty to possession of child pornography after being found in possession of 1859 videos and 1042 images of child pornography. The child pornography content was particularly heinous and involved young children. The offender was a first time offender who had limited insight into his offences. The offender was sentenced to 2 years in prison followed by 2 years of probation.

2 years

Possession of child pornography, 133 unique videos/3261 unique images, all forms of sexual activity, no related criminal record, significant harm to victims, remorse

In R. v. N.M., [2019] O.J. No. 6238 (C.J.), the offender pled guilty to possession of child pornography after being found in possession of 133 unique videos and 3261 unique images of child pornography material. The material included all forms of sexual activity with children and was particular depraved. The victims suffered considerable harm. The offender had a prior criminal record for unrelated offences. The offender volunteered while out on bail and expressed genuine remorse. He had family support and a good employment history prior to his arrest. The offender was sentenced to 2 years in prison.

2.5 years

Possession of child pornography, 920 images/741 videos, guilty plea, first time offender, remorse, counselling, victim impact statements

In R. v. Kim, [2019] O.J. No. 5267 (C.J.), the offender pled guilty to possession of child pornography after being found in possession of 920 images and 741 videos of child pornography. The content of the material was particularly heinous and included the bondage. The offender had no prior criminal history, had attended counselling prior to sentencing and expressed remorse. Numerous victim impact statements were read at the sentencing hearing. The offender was sentenced to 2.5 years in prison.

3 years, 9 months

Possession/make available child pornography/luring/breach of probation, guilty plea, prior record for luring and CP

In R v. Clement, [2019] O.J. No. 6729 (OCJ), the offender pled guilty to possession of and making available child pornography, breach of probation and luring after communicating for a sexual purpose with an undercover officer posing as a child online. The accused had a previous record for possession of child pornography and luring. The sentencing judge indicated that recent case law from the Supreme Court clearly indicates that the penalties for the sexual abuse of children should increase.

Sentencing for Possession, Accessing and Making

6 years make child pornography+ 4.5 years accessing + 4.5 years possession (concurrent)

Access/possession/make available child pornography, prior criminal history for sexual offences against children, designated Long Time Offender, high risk to reoffend (para 63).

In R. v. Rhode, [2019] SKCA 17, the offender was convicted at trial of 1 count each of accessing, possession and making child pornography. The offences did not include direct hands-on abuse, the offender photoshopped images. Recorded 3 young girls genitalia with hidden cameras. Offender had prior criminal history for child pornography offences and spent time in prison. Offender sentenced to 6 years for make available, 4.5 years for accessing and 4.5 years for possession of child pornography, to be served concurrently. Designated as Long-Time Offender.

Sentencing for Sexual Interference – Friesen

6 years                                                                                     

Sexual interference/attempted extortion, guilty plea, violently sexually assaulted small child, lack of insight, high risk to reoffend.

In R. v. Friesen, [2020] SCC 9, the offender pled guilty to sexual interference and attempted extortion. He had no prior criminal record. The offender violently sexually assaulted the four-year-old daughter of a woman he met in a bar and went home with. When the child’s mother and a family friend intervened, the offender attempted to extort the mother into bringing the child back for him to assault (para 11). The offender had a difficult and traumatic upbringing (para 17). The offender lacked insight into offences and attempted to distance himself from his conduct (para 15), but he expressed remorse during sentencing (para 14). The offender posed a high risk to reoffend (para 15). The sentence imposed was 6 years for the sexual interference conviction.

Luring – Under Friesen

3.5 years

Child luring, 3.5 year sentence, undercover police officer, trial

In R. v. Moolla, 2021 ONSC 3702, the offender was sentenced to 3.5 years in prison for one count of child luring after being convicted at trial. The offender was arrested after communicating for a sexual purpose with an undercover police officer posing as a young person online. The sentencing judge reasoned that the Supreme Court has indicated that the sentences for sexual offences against children should increase. The judge stated that the sentence in Moolla would have been higher if a real child had been involved.

Conditional Sentence to CP

Record Suspension/Appeals

  • Waiting Period: Criminal Records Act 4(1) states that an individual is ineligible for a Record Suspension until the following time periods have elapsed after the expiration of any sentence, including a sentence of imprisonment, a period of probation and the payment of any fine imposed for an offence;
    • (a) 10 years, where the case is prosecuted by indictment or is an offence for which the offender was punished by a fine of more than $5,000.00 or imprisonment for more than six months.
    • (b) five years, where the case is prosecuted by summary conviction.
  • Ineligible Persons: Criminal Records Act 4(2) indicates that subject to subsection (3), a person is ineligible for a record suspension if he or she has been convicted of:
    • (a) an offence referred to in schedule 1
      • Schedule I s. 1
      • (v) Child Pornography (s. 163.1 cc)
  • Exception: Pursuant to s. 4(3) of the Criminal Records Act an individual who is convicted of an offence under Schedule I may apply for a record suspension if the Board is satisfied that
    • (a) the person was not in a position of trust or authority towards the victim of the offence and the victim was not in a relationship of dependency with him or her
    • (b) the person did not use, threaten to use to attempt to use violence, intimidation, or coercion in relation to the victim; and
    • The person was less than five years older than the victim.

US Waiver

  • A person would be inadmissible with a child pornography conviction. An person would be required to apply for a US Waiver of inadmissibility, however given the nature of the offence its very unlikely the waiver would be granted.

Conditional Sentence to Obscene Materials

Record Suspension/Appeals

  • Waiting Period: Criminal Records Act 4(1) states that an individual is ineligible for a Record Suspension until the following time periods have elapsed after the expiration of any sentence, including a sentence of imprisonment, a period of probation and the payment of any fine imposed for an offence;
    • (a) 10 years, where the case is prosecuted by indictment or is an offence for which the offender was punished by a fine of more than $5,000.00 or imprisonment for more than six months.
    • (b) five years, where the case is prosecuted by summary conviction.
  • Ineligible Persons: Criminal Records Act 4(2) indicates that subject to subsection (3), a person is ineligible for a record suspension if he or she has been convicted of:
    • (a) an offence referred to in schedule 1
      • Schedule I s. 2
      • (iv) Obscene Materials (s. 163(1) cc); and
      • (v) Obscene Materials (s. 163(2)(a) cc)
  • Exception: Pursuant to s. 4(3) of the Criminal Records Act an individual who is convicted of an offence under Schedule I may apply for a record suspension if the Board is satisfied that
    • (a) the person was not in a position of trust or authority towards the victim of the offence and the victim was not in a relationship of dependency with him or her
    • (b) the person did not use, threaten to use to attempt to use violence, intimidation, or coercion in relation to the victim; and
    • The person was less than five years older than the victim.

US Waiver

  • An individual who has been convicted of an Excludable Offense is inadmissible for entry into the US and will need a Waiver of Inadmissibility each time they wish to enter.
  • Excludable offenses include any sexual offences and crimes of moral turpitude. Mailing obscene materials (US offence) is listed under 9 FAM 302.3-2(B)(2) (U) Defining Moral Turpitude – s. c. (3)(b)(vi).
  • Due to inadmissibility, the offender will be required to submit a Form I-601 US Waiver of inadmissibility each time he wishes to enter the US. The process can take up to a year each time.

Conditional Discharge to Obscene Material

Criminal Record

  • The record of the conditional discharge will appear on a record a three-year waiting period.
  • RCMP: After the three-year period has ended, the RCMP seals the records. An application must be sent in to have the records permanently destroyed.
  • The RCMP may deny an application to have the records destroyed permanently if the offence is a sexually based offence. If a person applies to have these records destroyed it is likely he would be denied and would need to appeal the denial.
  • Arresting Police Service database:  The record of the discharge will remain in the local police data base even after the three-year waiting period has expired and the records have been purged from the RCMP database. An offender would need to apply to the arresting police service to have the fingerprints and photographs destroyed and they could refuse.
  • Courthouse: The Courthouse where the offender was given the discharge will also keep a record of the discharge even after the RCMP has purged it from their records. An offender will need to apply to the courthouse to have their records destroyed. The courthouse may refuse.

Background Checks

  • If an employment background check is run prior to the three-year waiting period expiring, the discharge will appear on the individual’s record check.
  • If an employment background check is run after the three-year waiting period has expired, the discharge itself will not show up, but the FPS (arresting police department number) may still appear since their records are not automatically disposed of. If the arresting police department does not purge the records this FPS number will remain.
  • Vulnerable Sector Checks: A discharge will appear on a vulnerable sector check prior to the expiration of the waiting period.
  • After the waiting period, the discharge may appear on a vulnerable sector check if the arresting police department feels it is in some way related to the position for with the offender is applying. (e., if you have a discharge for child pornography and are applying for a job working with children).

US Waiver

  • Prior to the expiration of the three-year waiting period, the discharge will appear on the offender’s record when they attempt to enter the US and will be viewed as a conviction, making him inadmissible.
  • An individual who has been convicted of an Excludable Offense is inadmissible for entry into the US and will need a Waiver of Inadmissibility each time they wish to enter.
  • Excludable offences: include any sexual offences and crimes of moral turpitude. Mailing obscene materials (US offence) is listed under 9 FAM 302.3-2(B)(2) (U) Defining Moral Turpitude – s. c. (3)(b)(vi).
  • Process takes up to one year for each waiver and costs $585.00 USD each time you apply.

Stay of Proceedings

Criminal Record

  • A stay of proceedings may be reactivated within a one-year period and will appear on the accused’s record during that period.
  • The Stay will appear on a background check.

Record Suspension/Appeals

  • File Destruction: A person will be required to wait one year prior to applying for the file destruction. Due to the nature of the charges, it is likely that the application would be denied initially.
  • An Appeal would likely be necessary. The appeal may also be denied because of the nature of the offences. A non-conviction cannot be pardoned, so if the arresting police department refuses to destroy the records they will remain forever.

US Waiver

  • Those who are convicted of, or have admitted to engaging in criminal activity (crimes of moral turpitude or drug offences) are presumptively inadmissible under INA 212(a)(2)(A,B,C). To gain entry, they must submit a Form I-601 Waiver of Inadmissibility prior to entering the country.
  • INA 101(a)(48) indicates that a “conviction” exists where there is a formal judgement of guilt entered by the court, if adjudication is withheld, a finding of guilty by a judge or jury, a plea of nolo contendere by the alien, of an admission from the alien of sufficient facts to warrant of finding of guilt and where there has been an imposition of some form of punishment, penalty, or restraint of liberty by a judge.
  • Based on this definition, a stay of proceedings is not a conviction.

Determination of Conviction by Consular Officer: A consular officer may determine that an individual has been convicted of a criminal offence even where no record exists or the record has been expunged, where the traveler replies to questions, including as part of a visa application, or submits any reports or documents that suggest that they have committed an offence. Valid admission requires that the traveler be provided with a description of the crime including all essential elements.