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Criminal - Sentencing - Sentencing - Sex Offences - Child (3). R. v. J.C.
In R. v. J.C. (Ont CA, 2026) the Ontario Court of Appeal considered sentencing for possession of child pornography (CSEAM) cases:A. Relevant sentencing principles for possession of CSEAM
[26] In R. v. Pike, 2024 ONCA 608, 173 O.R. (3d) 241, Tulloch C.J.O. provided a comprehensive analysis of the principles governing sentencing for the offence of possession of CSEAM, in light of the Supreme Court’s decision in Friesen. I highlight a number of the principles identified in Pike that are particularly relevant in this case.
[27] First, people who possess and view CSEAM that depicts real children “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”. People who possess CSEAM involving actual children “make the challenging path of recovery for children much steeper by transforming the initial exploitation and violence of the production into a continuing violation”. People who possess such material “cause ongoing psychological harm to children that can extend long into adulthood”. See Pike, at paras. 147, 149, 150, 169.
[28] Second, people who possess CSEAM perpetuate pernicious messages that attack children’s humanity and equality. By falsely depicting children seeming to participate in their own exploitation, it erases children’s vulnerability and wrongfully suggests that they can consent, or that their exploitation is not a real crime. It sexualizes children’s inequality and vulnerability by portraying them as property for adults to collect, exploit, and exchange, and “sends the dangerous message that the wants of adults trump the needs of children”. See Pike, at paras. 154-55.
[29] Parliament has responded to society’s increasing awareness of the gravity of the offence of possession of CSEAM by directing courts to punish it more severely and impose sentences that prioritize denunciation and deterrence. This means that courts must place children, and the wrongs and harms the people who possess CSEAM inflict on them, at the centre of the sentencing process. While courts can give significant weight to the personal circumstances and mitigating factors of people who possess CSEAM, and to sentencing objectives such as rehabilitation, “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”. See Pike, at paras. 158-60.
[30] Courts must also reject myths that minimize the degree of responsibility of those who possess CSEAM and the wrongfulness and harmfulness of their conduct. 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”. The reality is that people who possess CSEAM callously, deliberately, and repeatedly exploit real children. See Pike, at para. 161.
[31] Finally, in determining whether a conditional sentence is appropriate for possession of CSEAM, courts must consider “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”. Proper consideration of these factors will ordinarily result in a custodial sentence. This does not mean that there is a presumption against conditional sentences for possession of CSEAM since, as Proulx holds, courts cannot create presumptions that conditional sentences are inappropriate for specific offences. Nevertheless, given developments in our understanding of the inherent wrongfulness of such conduct, “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”. See Pike, at paras. 179-81. . R. v. Vannoordennen [CCC 161 - Prohibitions]
In R. v. Vannoordennen (Ont CA, 2026) the Ontario Court of Appeal dismissed a defendant's criminal appeal, here brought against convictions for "two counts each of sexual interference (Criminal Code, R.S.C. 1985, c. C-46, s. 151), sexual assault (s. 271), and making child pornography[2] (s. 163.1(2)), as well as single counts of invitation to sexual touching (s. 152) and sexual exploitation (s. 153(1)(a))".
The court considers CCC 161 ['Sexual Offences - Order of prohibition'], here respecting internet restrictions:[72] At the time of sentencing, the Crown requested orders under ss. 161(1)(a), (b), and (c), but did not request an order under s. 161(1)(d) of the Criminal Code. The trial judge included an order under s. 161(1)(d). The appellant submits that this was unfair because he was not given the opportunity to make submissions on the appropriateness of such an order, or its length. He was self-represented at the time.
[73] It would have been preferable had submissions been sought from the appellant on this issue. However, this subsection provides that a sentencing judge “shall consider making and may make ... an order prohibiting the offender from (d) using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court” (emphasis added). The discretion to impose this type of order is wide. As Harvison Young J.A. held in R. v. J.B., 2022 ONCA 214, at para. 56: “A sentencing judge need only have an evidentiary basis upon which to conclude that the particular offender poses a serious risk to young children and be satisfied that the terms of the order are [a] reasonable attempt to minimize it”. See also R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 48.
[74] In this case, there was a basis to make the order. The police found photographs of the complainants on the appellant’s computer that were taken during the times he abused each of them. Having said that, a 20-year order without exceptions is not warranted. Accordingly, I would vary the order under s. 161(1)(d) to prohibit the appellant from using the internet or other digital network unless he does so in accordance with the following conditions:a. On his own personal device which is equipped with software or hardware that blocks access to social networking sites and peer-to-peer file sharing networks.
b. On any other telecommunications device under the direct and constant supervision of his mother, or by any person approved by the court.
c. Where he is not self-employed, at his place of business, for business purposes and in accordance with IT and other policies at his place of business.
d. Not to use any telecommunications device to access the internet or other digital network in order to:i. Access any content that violates the law;
ii. Communicate with a person under the age of 18;
iii. Access child pornography; participate in chat rooms or bulletin boards that discuss or promote child exploitation, child pornography, sexualized images of children, or other child sexual abuse and exploitation material. . R. v. Vannoordennen
In R. v. Vannoordennen (Ont CA, 2026) the Ontario Court of Appeal dismissed a defendant's criminal appeal, here brought against convictions for "two counts each of sexual interference (Criminal Code, R.S.C. 1985, c. C-46, s. 151), sexual assault (s. 271), and making child pornography[2] (s. 163.1(2)), as well as single counts of invitation to sexual touching (s. 152) and sexual exploitation (s. 153(1)(a))".
Here the court considers the consecutive sex offence sentencing provisions of CCC 718.3(7) ['Purpose and Principles of Sentencing - Punishment Generally - Cumulative punishments — sexual offences against children']:[65] The appellant submits that the trial judge also erred in holding that s. 718.3(7) of the Criminal Code required her to make the sentences on all counts consecutive to each other.
[66] Section 718.3(7) provides:(7) When a court sentences an accused at the same time for more than one sexual offence committed against a child, the court shall direct(a) that a sentence of imprisonment it imposes for an offence under section 163.1 be served consecutively to a sentence of imprisonment it imposes for a sexual offence under another section of this Act committed against a child; and
(b) that a sentence of imprisonment it imposes for a sexual offence committed against a child, other than an offence under section 163.1, be served consecutively to a sentence of imprisonment it imposes for a sexual offence committed against another child other than an offence under section 163.1. [67] This provision, introduced as part of the Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, came into force on July 17, 2015. In R. v. S.C., 2019 ONCA 199, 145 O.R. (3d) 711, leave to appeal refused, [2019] S.C.C.A. No. 165, this court held that this section does not apply to offences that entirely pre-date the coming into force of this section. The sexual interference offences relating to J.H. and I.H. predated the coming into force of s. 718.3(7). Therefore, this provision, more particularly s. 718.3(7)(b), has no application in this case. Nonetheless, while the trial judge was not required to impose consecutive sentences for these offences, I find that she would have done so in any event. This is apparent from the passage quoted in para. 59, above, in which she noted that there was “no close temporal nexus” between the abuse of the two brothers.
[68] In terms of the child pornography offences, the count relating to J.H. also predated the coming into force of s. 718.3(7)(a). Therefore, a consecutive sentence on this count (count 4) was permissive, but not mandatory. However, the child pornography count relating to I.H. (count 3) ended in 2018. Accordingly, s. 718.3(7)(a) applied and required a consecutive sentence. The trial judge gave effect to this provision by making the sentence on count 3 consecutive to the sentences on the sexual interference counts.
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