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| John L. Hill |
A Manitoba woman identified as B.C. provided a victim impact statement to the Manitoba Court of King’s Bench that she had to start “thinking like a predator” after a man she met online tried to convince her to feed her young daughter alcohol so he could sexually assault the girl. The statement was made to the court in Selkirk, Man., after Cody Lorne Schofield, then 33, pleaded guilty to possessing, making and luring related to child sexual abuse and exploitation material (CSAEM).
The sentencing judge initially imposed three years for possessing CSAEM, seven years consecutive for luring a child under 16, and four years concurrent for making CSAEM. By applying the principle of totality, the seven-
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Schofield appealed the sentence, arguing that the sentencing judge had misjudged his moral culpability by failing to fully consider his mental illness (schizophrenia), substance abuse and low IQ (74). Moreover, he contended that the sentence placed too much emphasis on deterrence and denunciation and misapplied the principle of totality.
The Crown conceded that a concurrent sentence for making CSAEM was an error but maintained that the overall sentence was still appropriate. The Manitoba Court of Appeal delivered its judgment on May 9, 2025 (R. v. Schofield, 2025 MBCA 43).
The Appeal Court reviewed the lurid details of Schofield’s dealings with B.C. The mother feigned interest and maintained ongoing communication with Schofield to gather sufficient information to report his activities to the police. He shared CSAEM with B.C. and discussed sexually assaulting a child he believed was her daughter. This supported the “making” charge. When B.C. reported the Internet conversation she had with Schofield to the RCMP, the police visited Schofield’s home, where he lived with his parents, and seized his cellphone. There, they discovered 86 disturbing CSAEM images, including very young children. This led to the “possession” charge. Police also found that Schofield engaged in sexually explicit chats with children aged 14–17, expressing desires for younger children and soliciting CSAEM from them. This substantiated the “luring” charge.
The defence argued that the total sentence should be reduced to two years, allocated as follows: one year for the possession charge, one year for the making charge and one year concurrently for the luring charge. In support of this position, the defence cited R. v. Okemow, 2017 MBCA 59, and pointed out that Schofield had schizophrenia and severe alcohol use disorder. Although this problem did not contribute to his offences, it was a destabilizing factor contributing to his criminal conduct. His alcohol consumption and low IQ rendered him a vulnerable person.
Leave to appeal was granted, and the appeal was allowed. The Appeal Court determined that the judge did not err in assessing moral culpability — mental health and cognitive impairments only marginally reduced culpability. The trial judge recognized the seriousness of the charges of child pornography as identified in R. v. Sharpe, 2001 SCC 2 and R. v. Scott, 2024 ONCA 608.
However, the judge erred in applying the totality principle, materially affecting the sentence. When assessing an appropriate sentence for multiple offences, a judge must ensure that the length of the sentence does not provide a “free ride” for any offence (R. v. R.J., 2017 MBCA 13). In imposing consecutive sentences, the combined sentence must not exceed the overall culpability of the offender.
The offender’s background relevant to his sentencing included the following: (a) The accused, aged 33, had no prior record, lived with his parents, experienced cognitive and mental health issues, and had a limited work history; (b) He was assessed as low risk to reoffend but exhibited limited insight or remorse; and (c) expert testimony confirmed a diagnosis of schizophrenia and alcohol use disorder, although no direct link to his offences was established. The Appeal Court recognized from the Okemow decision that a custodial sentence is “particularly difficult for those suffering from cognitive limitations” and may warrant an adjustment.
The appellate court found that while the sentencing judge correctly assessed the accused’s culpability, the misapplication of totality warranted a variation of the sentence. The trial judge erred by not imposing consecutive sentences for the offences and by failing to consider Schofield’s vulnerability stemming from his cognitive functioning and mental health condition. Due to these errors, the original sentence does not warrant deference.
The sentence varied by the Appeal Court became four and a half years for luring, two and a half years consecutive for making child pornography, and two and a half years concurrent to the making charge for possession of child pornography.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the [True Crime] Story (AOS Publishing). The Rest of the [True Crime] Story has been shortlisted for a prestigious Brass Knuckles Award, which is the Crime Writers’ of Canada’s prize for best nonfiction crime book of the year. Contact him at johnlornehill@hotmail.com.
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