Mandatory minimum sentence found to violate accused's Charter rights

Overview

A contested sentencing decision for an accused that was convicted of accessing, possessing, and making child pornography available. While mandatory minimum sentences for these offences were already earlier decided in R v John, the issue was still briefly discussed in the current decision. Defence Counsel was seeking a non-custodial sentence, which was rejected.

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R. v. [Redacted]

Ontario Judgments

Ontario Superior Court of Justice

[Redacted] J.

Heard: January 5, 2021.

Judgment: February 2, 2021.

Court File No.: [Redacted]

 

[2021] O.J. No. [Redacted]    |   2021 ONSC [Redacted]    |   [Redacted]  C.R.R. [Redacted]

Between Her Majesty the Queen, and [Redacted]

Counsel

[Redacted], for the Respondent.

[Redacted], for the Applicant.

 

 

SENTENCING and RULING on s. 12 of the Charter

[Redacted] J.

A. Introduction

 

1. On March 11, 2020, following a trial before a judge and jury, [Redacted] was found guilty of accessing child pornography, possessing child pornography and making child pornography available. Sentencing was originally scheduled for June 22, 2020. Unfortunately, due to the suspension of regular court operations resulting from the COVID-19 crisis, sentencing was adjourned to January 5, 2021.

 

2. In addition to his submissions on sentencing, [Redacted] also seeks a declaration that the mandatory minimum sentence for accessing child pornography (under s. 163.1(4.1) of the Criminal Code, R.S.C. 1985, c. C-46) and making available child pornography (s. 163.1(3) of the Criminal Code) violate s. 12 of the Canadian Charter of Rights and Freedoms, and therefore are of no force or effect.

 

3. The Crown concedes that the mandatory minimum sentence for the possession of child pornography has already been found to be unconstitutional: R. v. John, 2018 ONCA 702, 142 O.R. (3d) 670. It should be noted that at the time of that decision, the mandatory minimum sentence was 6 months. There has been no ruling with respect to the one-year mandatory minimum sentence for this offence, but the Crown has conceded nonetheless that the one year minimum is unconstitutional.

B. Circumstances of the Offence

 

4. On September 13, 2017, the Internet Child Exploitation ("ICE") Unit of the Peel Regional Police executed a search warrant at the home of [Redacted] and seized computer equipment and various hard drives. The seized items were subjected to an examination by the ICE Unit, following which they found 43 videos and 17 images which the parties agree constitute child pornography, all of which were located on the computer equipment or hard drives seized from [Redacted]'s house.

 

5. Of all of these various videos and images, all 43 videos and 3 of the images were accessible to anyone through a peer-to-peer file sharing platform called Shareaza that was downloaded onto [Redacted]'s computer. Once available through Shareaza, the videos or images can be saved and viewed innumerable times for an indefinite period.

 

6. While all child pornography is offensive, the particular videos and images found on [Redacted]'s computer equipment are particularly heinous in that, as an example:

a)      the children (both boys and girls) in the videos are obviously prepubescent;

b)     they show men masturbating on the face of or into the mouth of a prepubescent child;

c)      they show a man digitally penetrating a young child;

d)     they show a man aggressively penetrating a young child vaginally with his penis and with a sex toy;

e)      they show a man touching a young child's penis;

f)       they show a man forcing a child to perform fellatio on him;

g)     at times they show the child's face very clearly and at times the child is blindfolded or wearing a clown's mask; and

h)     they show close up shots of young children's genitalia.

 

7. These videos and images depict abhorrent child abuse. The permanent nature of these images and videos, and the availability of them online, mean that these children will continue to be physically, emotionally and psychologically abused repeatedly, for the entirety of their lives.

 

C. Circumstances of the Offender

 

8. This is [Redacted]'s first offence. He is currently [Redacted] years old, and was [Redacted] years old during the time he was found to have committed these offenses. He is single, never married, although he has been in few serious relationships in the past. He has no children.

 

9. [Redacted] and his sister were both adopted by their parents when they were approximately 6 months old. [Redacted] was eventually diagnosed with Attention Deficit Disorder but does not take any medication for this condition.

 

10. [Redacted] reports having a good upbringing by his adoptive parents, and by his second adoptive father, who married his mother after her divorce from [Redacted]'s original adoptive father. He maintains a good relationship with both fathers and his mother, although he claims his relationship with his fathers is better. He lived with his first father for a while during high school. He also maintains a good relationship with his sister.

 

11. [Redacted] has a high school education, and joined the Army Reserve following high school. He started a university degree but left after a year as he found it difficult to focus.

 

12. [Redacted] has been steadily employed since he was [Redacted] years old. He worked for a couple of years for a trading funds company but since then has been in the information technology field. His last position was with a major telecommunications cable company as a Digital Forensic Specialist. He was let go the month before he was charged with these offences and received a severance package. Notably, in the pre-sentence report he maintains he was let go because of these charges, which does not make sense given that the charges did not exist when he was notified of his termination. He has not been employed since the charges. [Redacted] maintains this is due to his current bail restrictions that prohibit certain use of technology, which is where his experience and skills lie. He would like to be employed again.

 

13. [Redacted] has the support of his parents, as well as a number of friends and former coworkers. His letters of support come from his parents, his friends [Redacted], [Redacted], [Redacted], [Redacted] and [Redacted], [Redacted], and his former coworkers [Redacted] and [Redacted]. He has maintained some of these and other friendships for many years, most notably with his roommate [Redacted]. He is reported by all to be reliable, responsible and hardworking. They trust him around their children. All are worried about how [Redacted] will fare if incarcerated due to his health issues (which were not expanded upon, other than to state that in the past, he required the use of a C-PAP machine). While [Redacted] admits to casual use of marijuana and hash, he has not consumed alcohol for many years, and does not have any addiction issues.

 

14. In the pre-trial report it states, "With regards to the current charges [Redacted] mentioned that he takes some responsibility for having child pornography on his computer ...". At trial, [Redacted] testified that he had not reviewed all the files that were being downloaded by the Shareaza file sharing programme, and as a result, did not know what was on his computer.

 

15. In the pre-trial report, [Redacted] also claims he will abide with any treatment or counselling that is recommended by the court, but has taken no independent steps in that regard to date. There is no expression of remorse.

 

D. Position of the Parties

 

16. The Crown seeks a period of incarceration of 2.5 to 3 years, along with a forfeiture order of the equipment seized, a DNA order, a prohibition order under s. 161(1) of the Criminal Code for 10 to 15 years, and an order that [Redacted] register for life under the Sexual Offender Information Registration Act, S.C. 2004, c.10 ("SOIRA").

 

17. [Redacted] seeks a conditional sentence of two years less a day, with ancillary orders that contain shorter terms of restriction.

 

E. Minimum and Maximum Sentences

18. The sentencing provisions relating to the offences are set out in the Criminal Code as follows:

 

163.1(3) Every person who transmits, makes available, distributes, sells, advertises, imports, exports or possesses for the purpose of transmission, making available, distribution, sale, advertising or exportation any child pornography is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year.
...

163.1(4) Every person who possesses any child pornography is guilty of

(a)   an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
...

163.1(4.1) Every person who accesses any child pornography is guilty of

(b)   an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or ...

 

19. As indicated, the Court of Appeal for Ontario has already determined that the mandatory minimum sentence of six months for possession of child pornography violates s. 12 of the Charter and is therefore unconstitutional and unenforceable. [Redacted] seeks the same determination for the remaining two offences for which he was convicted, which carry a mandatory minimum sentence of one year.

a. Doctrine of Mootness

 

20. The mandatory minimum sentence ("MMS") for accessing and making available child pornography is one year. The Crown has submitted that the probable period of incarceration for [Redacted] would exceed one year. Accordingly, the Crown submits that the constitutionality of the MMS is moot in this case, and this court is not required to make a determination.

 

21. In the Supreme Court of Canada decision of R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, the accused was found guilty of possession for the purpose of trafficking. As a result of his prior offences, the offender was subject to an MMS of one year. At trial, the provincial court judge found that the MMS was contrary to s. 12. The appeal was allowed and then allowed again to the Supreme Court of Canada. One of the issues before the court was whether the provincial court judge had the power to decide the constitutionality of the provision of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, and whether the provincial court judge had the power to make a formal declaration that a law is of no force or effect.

 

22. In the course of the analysis of whether the provincial court judge had the power to decide the constitutionality of the MMS, McLachlin C.J. stated, at para. 18:

 

To be sure, it does not follow that a provincial court judge is obligated to consider the constitutionality of a mandatory minimum provision where it can have no impact on the sentence in the case at issue. Judicial economy dictates that judges should not squander time and resources on matters they need not decide. But a formalistic approach should be avoided. Thus, once the judge in this case determined that the mandatory minimum did not materially exceed the bottom of the sentencing range applicable to Mr. Lloyd, he could have declined to consider its constitutionality. To put it in legal terms, the doctrine of mootness should be flexibly applied. If an issue arises as to the validity of the law, the provincial court judge has the power to determine it as part of the decision-making process in the case. To compel provincial court judges to conduct an analysis of whether the law could have any impact on an offender's sentence, as a condition precedent to considering the law's constitutional validity, would place artificial constraints on the trial and decision-making process.

 

23. Several decisions from the Court of Queen's Bench for Saskatchewan have cited Lloyd in support of their decision to not consider the constitutionality of the MMS where the accused's sentence exceeded it: R. v. Dirksen, 2019 SKQB 140; R. v G.G., 2018 SKQB 169; R. v. T.A.S., 2018 SKQB 183. In Dirksen, the judge followed R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, and first determined the appropriate sentence range for the offence. When it was determined that the appropriate sentence exceeded the MMS, the court did not consider the constitutional issue.

 

24. In the case of R. v. Sharma, 2018 ONSC 1141, 44 C.R. (7th) 341, Hill J. acknowledged that the s. 12 argument in the case before him was moot. He then reviewed the doctrine of mootness as set out in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, which set out the circumstances in which a court should exercise its discretion to hear a matter which has been found to be moot. Hill J. also acknowledged the aforementioned statement in Lloyd, which indicated that the doctrine of mootness should be flexibly applied.

 

25. Upon reviewing the factors set out in Borowski, Hill J. determined that he would consider the issue, and found that s. 6(3)(a.1) of the Controlled Drugs and Substances Act, S.C. 1996, c.19, was unconstitutional and was of no force or effect. While the ultimate sentence imposed by Hill J. was overturned by the Court of Appeal for Ontario, this particular finding of unconstitutionality was not appealed, and the appellate court did not comment on the appropriateness of the application of the doctrine of mootness in the circumstances: 2020 ONCA 478 at paras. 20-21.

 

26. When deciding whether to exercise its discretion to decide a moot issue, the court should consider the extent to which the case engages any of the following rationales underlying the doctrine of mootness, as laid out in Borowski, at pp. 358-362 and Ontario (Provincial Police) v. Mosher, 2015 ONCA 722, 330 C.C.C. (3d) 149, at para. 32:

a)      The need for an adversarial context that guarantees that issues are fully argued by parties who have a stake in the outcome;

b)     the concern for judicial economy; and

c)      an awareness of the courts' law-making function and the limits of that function so as to avoid intrusions into the role of the legislative branch.

 

27. In the case before me, the adversarial system remains. With respect to judicial economy, additional submissions and case law were required, but neither caused the argument of this issue or the sentencing to extend beyond the one day already allocated. In addition, as will be indicated below, there is already persuasive authority on this issue.

 

28. I do not find that by determining this issue, there is a risk of unduly interfering with the legislative function. In the last ten years, the Parliament of Canada has increased the MMS and maximum sentences for these offences twice. As a result of the Safe Streets and Communities Act, S.C. 2012, c. 1, ss. 17(3) and (4), and the Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, ss. 7(2) and (3), the minimum sentence has increased from 45 days' imprisonment, to 6 months' imprisonment, to one year of imprisonment. Likewise, the maximum sentence for these offences increased from 5 years, to 10 years, to 14 years. Despite the fact that the MMS of various offences has been struck down, the ability of legislature to create laws relating to these offences and to increase sentences for these and other similar offences has not been impeded.

 

29. Accordingly, after considering and weighing all the factors outlined in Borowski and applying the doctrine of mootness flexibly, I find that this is an appropriate situation to consider the s. 12 application. The presence of an adversarial function, the effective use of judicial resources and the absence of an impact on the legislative role of the government suggest that this issue should be considered despite it being moot with respect to [Redacted].

b. Prior Decisions of the Ontario Superior Court of Justice

 

30. [Redacted] argues that the constitutionality of ss. 163.1(4.1) and 163.1(3) of the Criminal Code has already been determined by other judges of the Superior Court of Justice, and that I should follow those decisions in this case.

 

31. In R. v. Sullivan, 2020 ONCA 333, 151 O.R. (3d) 353, the offender argued that a trial judge is bound by declarations of other justices of the Superior Court of Justice that Criminal Code provisions at issue were unconstitutional. Paciocco J.A., writing for the court, stated that the ordinary principles of stare decisis apply and that a trial judge is not bound by a colleague's finding on this issue, even where it is a declaration under s. 52(1) of the Constitution Act, 1982: Sullivan, at paras. 34-35.

 

32. That being said, Paciocco J.A. states that superior court judges should respect an earlier declaration of unconstitutionality, absent any cogent reason to conclude that the earlier declaration is plainly wrong. He continued, at para. 38 as follows:

 

It is obvious that a superior court judge cannot determine that there is cogent reason to conclude that the earlier decision is plainly wrong without the benefit of argument, facilitated by fair notice to the parties. Therefore, where a party seeks to rely on a statutory provision that has been declared to be unconstitutional by a superior court judge, a subsequent trial judge should apply that earlier declaration of invalidity and treat the statutory provision as having no force or effect, unless the underlying constitutional issue has been raised by the Crown before them through submissions that the earlier decision is plainly wrong. In this way, the principles of stare decisis can operate, while recognizing that the effect of a s. 52(1) declaration is not confined to the litigation in which the declaration is made.

 

33. The appellate court concluded that in the case before it, the superior court judge was not bound an earlier decision by another superior court judge, but that he was correct to consider the issue anew, as the issue of constitutionality was put before him and the authority he encountered was inconsistent. Therefore, the trial judge had no choice but to consider whether to deviate from the other decision: Sullivan, at para. 40.

 

34. As indicated, the constitutionality of ss. 163.1(4.1) and 163.1(3) of the Criminal Code has already been considered by other superior court judges. The following cases were raised by [Redacted] in support of his argument that these sections are unconstitutional.

 

35. In R. v. Rytel, 2019 ONSC 5541, at para. 9, Harris J. notes that the offence of accessing child pornography is similar to the offence of possessing child pornography, which has already been declared unconstitutional in John. Harris states, "... for the reasons in John, I find the mandatory minimum for accessing also constitutes cruel and unusual punishment and proceed to sentencing unencumbered by the mandatory minimum one-year incarceration." Notably, Harris J. found a conditional sentence to be an appropriate sentence, taking into consideration various factors, including the offender's profound cognitive and social impairments.

 

36. The constitutionality of s. 163.1(3) was addressed in R. v. Boodhoo, 2018 ONSC 7207. In this decision, Bale J. applied the test set out in Nur and found that a minimum one-year period of incarceration would be grossly disproportionate in at least one hypothetical situation, and thus violated s. 12 of the Charter. Of note in Boodhoo is Bale J.'s reliance, at para. 28, on the following statement from John, at para. 41, which he found also applies to the mandatory minimum sentence for the offence of making available child pornography:

 

The mandatory minimum is entirely unnecessary. This court has recently emphasized the importance of denunciation and deterrence for any offence involving abuse of a child, and that those principles are the primary principles of sentencing applicable for such offences involving child pornography. In another recent decision, this court upheld a sentence of 18 years for sexual abuse of young children, making child pornography depicting that abuse, and distribution of that material. [Citations omitted.]

 

37. In its submissions, the Crown did not argue that these decisions were plainly wrong, nor were any other cases submitted that upheld the constitutionality of these provisions. Accordingly, I have no reason to find that the decisions in Boodhoo or Rytel are plainly wrong. While the principles of stare decisis mean that I am not bound by these decisions, I do not find them plainly wrong and accordingly will follow the ruling in each particular case. More importantly, I also agree that the mandatory minimum is completely unnecessary for these offences, given the principles of sentencing for child pornography offences, which will be expanded upon below.

F. Principles of Sentencing

 

(a)   General Principles

 

38. The principles and objectives of sentencing are set forth in s. 718 of the Criminal Code:

 

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a)   to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b)   to deter the offender and other persons from committing offences;

(c)   to separate offenders from society, where necessary;

(d)   to assist in rehabilitating offenders;

(e)   to provide reparations for harm done to victims or to the community; and

(f)    to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

39. Further, s. 718.1 of the Criminal Code provides that "[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." In the recent decision of R. v. Friesen, 2020 SCC 9, the Supreme Court of Canada reaffirmed that all sentencing starts with the principle set out in s. 718.1 of the Criminal Code.

 

40. I must also consider the principle of restraint, which means that incarceration should be the sanction of last resort. A sentencing court should include the least intrusive sentence and the least quantum which will achieve the overall purpose of being an appropriate, just and proportionate sentence: R. v. Hamilton, (2004) 72 O.R. (3d) 1 at para. 95-96.

 

41. Section 718.2 of the Criminal Code also provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, and that an offender not be deprived of liberty if less restrictive sanctions may be appropriate. It requires that all available sanctions that are reasonable in the circumstances, other than imprisonment, be considered.

 

b. Principles Related to Child Pornography

 

42. Of particular importance to this case is s. 718.01 of the Criminal Code, which provides:

 

718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

 

43. Specific direction has recently been provided by the Supreme Court of Canada in Friesen, wherein it states that the case was decided, in part, to provide direction on how to impose sentences that fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children. In particular, Wagner C.J. and Rowe J., writing for the Court, state at para. 5:

 

... sexual offences against children are violent crimes that wrongfully exploit children's vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament's sentencing initiatives and by society's deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large.

 

44. With respect to the focus on deterrence and denunciation in sentencing, the Court states, at para. 104:

 

Section 718.01 thus qualifies this Court's previous direction that it is for the sentencing judge to determine which sentencing objective or objectives are to be prioritized. Where Parliament has indicated which sentencing objectives are to receive priority in certain cases, the sentencing judge's discretion is thereby limited, such that it is no longer open to the judge to elevate other sentencing objectives to an equal or higher priority. However, while s. 718.01 requires that deterrence and denunciation have priority, nonetheless, the sentencing judge retains discretion to accord significant weight to other factors (including rehabilitation and Gladue factors) in exercising discretion in arriving at a fit sentence, in accordance with the overall principle of proportionality. [Citations omitted.]

 

45. While Friesen considered the sentence for the offences of sexual interference with a child and attempted extortion, the Court explicitly stated that the principles outlined therein were also relevant to sentencing for other sexual offences against children, including the three offences for which [Redacted] was charged: Friesen, at para. 44.

 

46. I am also mindful of the words of Justices L'Heureux-Dubé, Gonthier and Bastarache JJ in R. v. Sharpe, 2001 SCC 2 at para. 158 wherein they state:

 

The very existence of child pornography, as it is defined by s.162.1(1) of the Criminal Code, is inherently harmful to children and to society. This harm exists independently of dissemination or any risk of dissemination and flows directly from the existence of the pornographic representations, which on their own violate the dignity and equality rights of children. The harm of child pornography is inherent because degrading, dehumanizing, and objectifying depictions of children, by their very existence, undermine the Charter rights of children and other members of society. Child pornography eroticises the inferior social, economic, and sexual status of children. It preys on preexisting inequalities.

 

47. Accordingly, when sentencing [Redacted], I must consider the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle. As stated in Friesen, the wrongfulness and harmfulness of the offence impact the gravity of the offence and the degree of responsibility of the offender. Taking into account the wrongfulness and harmfulness of the offence will ensure that the proportionality principle serves its function to ensure that the offender is held responsible for their actions and the sentence properly reflects and condemns their role in the offence and the harm they caused: Friesen, at para. 75.

 

48. The court also stated that one of the roles of an appellate court is to set a new direction, bringing the law into harmony with society's understanding of the gravity of certain offences or the degree of responsibility of certain offenders. With that in mind, the court in Friesen further stated, at para. 35:

 

When a body of precedent no longer responds to society's current understanding and awareness of the gravity of a particular offence and blameworthiness of particular offenders or to the legislative initiatives of Parliament, sentencing judges may deviate from sentences imposed in the past to impose a fit sentence. That said, as a general rule, appellate courts should take the lead in such circumstances and give sentencing judges the tools to depart from past precedents and craft fit sentences. [Citations omitted.]

 

49. While this specifically addresses the role of an appellate court, the Supreme Court is also stating that prior sentences for these types of offences may no longer respond to society's current understanding and awareness of the gravity of these offences, or may no longer be considered proportional to the offences. From this, I accept that sentences granted in years prior for similar offences may not be as assistive to this court when addressing parity.

 

50. In particular, the Supreme Court indicated in Friesen, at para. 107:

 

We are determined to ensure that sentences for sexual offences against children correspond to Parliament's legislative initiatives and the contemporary understanding of the profound harm that sexual violence against children causes. To do so, we wish to provide guidance to courts on three specific points:

 

1)     Upward departure from prior precedents and sentencing ranges may well be required to impose a proportionate sentence;

2)     Sexual offences against children should generally be punished more severely than sexual offences against adults; and,

3)     Sexual interference with a child should not be treated as less serious than sexual assault of a child.

 

51. With respect to the first point, the Court stated that sentencing ranges are not straitjackets, but rather historical portraits. Accordingly, the Court recognizes that sentences can and should depart from prior sentencing ranges when Parliament raises the maximum sentence for an offence and when society's understanding of the severity of the harm arising from that offence increases: Friesen, at para. 108. Notably, the Court does not make reference to mandatory minimum sentences.

 

52. The Court also offered some commentary on the significant factors that should be considered when determining a fit sentence for sexual offences against children. These factors do not replace the specific factors expressed by appellate courts, but provide guidance to promote the uniform application of the law of sentencing:

(a)   Likelihood to reoffend: The more likely a person is to reoffend, the more important it is to separate the offender from society. The court must also stress rehabilitation if there is a risk to offend, which should begin in prison. However, the goal must be the protection of children, which may require a lengthy sentence: Friesen, at para. 124;

(b)   Abuse of position or trust or authority: A "breach of trust is likely to increase the harm to the victim and thus the gravity of the offence", and should result in a lengthy sentence: Friesen, at paras. 126-130;

(c)   Duration and frequency: The longer the frequency and duration of the offending conduct, the greater the degree of harm to the victim. This also increases the offender's moral blameworthiness, because the long-term emotional and psychological harm is a reasonably foreseeable consequence of the offending conduct. The duration and frequency of the sexual violence must receive weight in the sentencing. Therefore, "sexual violence against children that is committed on multiple occasions and for longer periods of time should attract significantly higher sentences that reflect the full cumulative gravity of the crime": Friesen, at paras. 131-133.

(d)   Age of the victim: This is a significant aggravating factor; "the moral blameworthiness of the offender is enhanced when the victim is particularly young and is thus even more vulnerable to sexual violence": Friesen, at paras. 134-135;

(e)   Degree of physical interference: Sentencing judges are strongly cautioned "against downgrading the wrongfulness of the offence or the harm to the victim where the sexually violent conduct does not involve penetration, fellatio, or cunnilingus, but instead touching or masturbation." It is a myth that offences with less physical interference are less harmful: Friesen, at para. 144; and

(f)    Victim participation: The apparent participation of the child victim is not a mitigating factor. At most, it shows the absence of an aggravating factor, which is not a mitigating factor: Friesen, at paras. 149-150.

G. Mitigating Factors

 

53. When determining [Redacted]'s sentence, I have considered the following mitigating circumstances:

(a)   This is [Redacted]'s first offence;

(b)   [Redacted] has been gainfully employed throughout his adulthood, until just before these charges; and

(c)   [Redacted] has a great deal of support from his family and friends.

H. Aggravating Factors

 

54. I have also considered the following aggravating factors:

a)      [Redacted] has a collection of child pornography, not just an image or two;

b)     The size of the collection was not small; the number of videos he possessed was approximately one-half of the amount that the Court of Appeal for Ontario in John considered "a serious aggravating factor";

c)      The age of the children depicted in the videos and the images is a serious aggravating factor; the children range from 3 years old to 14 years old;

d)     The nature of the collection is particularly aggravating; as indicated above, the videos show fellatio, vaginal penetration both digitally and penile, and anal penetration of children by adults; the abusers ejaculate over or in the face of young children;

e)      The search terms used show that these types of videos and images were actively sought out;

f)       In addition to being sexually assaulted, the children were sometimes blindfolded, sleeping when assaulted, or aggressively handled by their abusers;

g)     [Redacted] utilized a file sharing platform that make these images and videos accessible to the entire web; in essence, these images can be repeatedly viewed anywhere in the world for an infinite amount of time; and

h)     With the exception of his statement that he took some responsibility for having the child pornography on his computer, I see no sign that [Redacted] has any insight into the seriousness of the offences. While he agreed to participate in therapy or counselling if so recommended, he has taken no steps himself to do so during the three years he has been on probation.

I. Range of Sentences

 

(a)   Principle of Parity

 

55. It is appropriate to review sentences imposed for others convicted of the same offences as [Redacted]. As recently stated in Friesen, parity gives meaning to the principle of proportionality. The Court stated, at para. 33:

 

In practice, parity gives meaning to proportionality. A proportionate sentence for a given offender and offence cannot be deduced from first principles; instead, judges calibrate the demands of proportionality by reference to the sentences imposed in other cases. Sentencing precedents reflect the range of factual situations in the world and the plurality of judicial perspectives. Precedents embody the collective experience and wisdom of the judiciary. They are the practical expression of both parity and proportionality.

 

56. This statement must be read in light of the Court's commentary on the upward departure from prior precedent and sentencing ranges in order to impose a proportionate sentence in cases involving harm to children.

 

b. Prior Sentences

 

57. With respect to [Redacted]'s sentence, I have reviewed cases where the offender committed the offence of making available or distributing child pornography, in addition to the charges of accessing or possession. I note that the cases presented by [Redacted] did not involve sentences for making available child pornography, the more serious of the three offences.

 

58. In R. v. Carlos, 2015 ONSC 6070, affirmed on appeal, 2016 ONCA 920, the offender was found guilty of possession and making available child pornography. He was found to have made available 12 complete videos and 38 incomplete videos (which the court found to be "not large") through a file sharing program. The content of the videos showed intercourse between adults and children. The offender was 38 years old, had a common law wife and a 9 year old daughter with his current partner and 2 teenage sons with his first wife, who resided in Brazil. The offender was steadily employed and had no history of substance abuse. In preparation for sentencing, the offender was assessed by a psychiatrist and found that he was at a very low to low risk for re-offending. The offender had no criminal record. He was sentenced to 3 years for each offence, to be served concurrently, less pre-sentence custody of 414 days. At the time, the mandatory minimum sentence was 6 months.

 

59. In R. v. C.C., 2016 ONSC 6386, the offender pled guilty to possession of child pornography and was found guilty of making child pornography available. He had a collection of 937 images and 56 videos of children in a sexualized context, which the court characterized as "medium size". The collection showed children being subjected to penetration digitally, anally, and by objects; fellatio; and scenes of bondage and bestiality, albeit in a limited number. The children's faces were exposed, making them always identifiable. The offender had a grade 10 education and worked as a general labourer. He had a common law partner. His parents were supportive, but not his sisters. He had a limited and unrelated criminal record. He showed little insight into his crime. His abuse also involved a niece, and thus involved a breach of trust. The offender was sentenced to 3 years' incarceration for making available child pornography and one year for possession, served concurrently, with credit for pre-sentence custody.

 

60. In R. v. Tweedle, 2016 ONCA 983, the offender was found guilty of possessing and making available child pornography. He was sentenced to 20 months' imprisonment by the trial judge. He was found to have shared 29 videos and 431 pictures through a peer-to-peer file sharing network. The appeal was dismissed.

 

61. In R. v. Miro, 2017 ONSC 1330, following a trial, the offender was found guilty of possession of child pornography and making available child pornography. His collection, identified as "not small" by the court, consisted of 479 images and 6 videos. The offender was 52 years old, had a long-term spouse and two stepchildren. He had no criminal record. He was a high school graduate and lost his long-term employment due to conviction, although he found another job thereafter. He has developed anxiety disorder as a result of charges and was experiencing a financial crisis. Although he was remorseful, he did not understand the seriousness of the "making available" charge. He was sentenced to 2 years less a day for possession and 2 years less a day for making available, served concurrently, plus 3 years' probation.

 

62. In R. v. Inksetter, 2018 ONCA 474, the offender pled guilty to possessing and making available child pornography. The collection consisted of 28,052 images and 1,144 videos. They involved prepubescent children, as young as one year old, and included both bondage and bestiality. The collection was well organized. It was a first offence, with a low risk of re-offending. The offender showed remorse and started seeing a psychologist immediately after being charged. He was sentenced to 3 years for possession and 3.5 years for making available child pornography, served concurrently. With respect to the seriousness of each offence, the Court of Appeal stated, at para. 27:

 

A longer sentence on the count of "make available" child pornography than for the count of "possession" is warranted because by making images and videos he downloaded available to others via the internet, the respondent contributed to the further victimization of the children depicted in the pornographic images. In my view, a sentence of three years imprisonment on the count of "possession" of child pornography and three and one half years imprisonment on the count of "make available" child pornography, to be served concurrently is fit in these circumstances, which include the early guilty plea and other mitigating factors identified by the trial judge.

 

63. In R c. Régnier, 2018 QCCA 306, the offender pled guilty to accessing, possession and the distribution of child pornography. He was sentenced to 18 months' imprisonment at trial. This sentence was overturned by the Court of Appeal and a sentence of 36 months was substituted. In this case, the Court had found that the offender's collection consisted of 71,548 images and 2,407 videos, downloaded over a period of 16 years. The young girls depicted were aged 0 to 12 years and were depicted in all kinds of sexual activity, including anal and vaginal penetration and fellatio. The children were also depicted as physically restrained and sexually assaulted. The offender was 55 years old, in a long-term marriage, which remained intact, and the owner of a business. A sexological assessment was prepared for sentencing. The offender's assessor found that he still did not recognize the seriousness of his offence. This was his first offence and the offender was remorseful. The offender started seeing a therapist after his arrest and remained in therapy afterwards.

 

64. In addition to the cases provided to me by the parties, I have also considered R. v. M.B., 2020 ONSC 7605. In this decision, the offender pled guilty to possession, accessing and making available child pornography, as well as communicating with a person he believed to be under 18 years of age for the purpose of facilitation an offence under s.163.1, and for a breach of his recognizance, namely for possessing a device capable of accessing the internet. His collection of child pornography collection consisted of approximately 50,000 images and approximately 1,300 videos. The offender made a few of the videos. Some of the images were taken of a child next door, and were focused on the anal or vaginal area of the child. There were also approximately 85 videos that he made himself of naked girls from ages 5 to 15 years, conducting themselves in a sexual manner. There were also images of a female child performing fellatio and having vaginal intercourse with a man, digital penetration of a female child of 18 months or less, and of an infant in a car seat with a man's penis in the baby's mouth. He is involved in at least 2 videos himself. Even after charged, the offender tried to pose another picture that was blocked by the internet, after which he tried again, and posted a photo of a young female, with her head cropped out, focusing on her breast, vagina, and with her legs wide open. The offender presented a psycho-sexual and risk assessment report that showed the offender had a moderate risk of re-offending. He was sentenced to 3 years on the charge of making available child pornography, and 2 years for accessing and possessing child pornography, along with 2.5 years on the other charges, served on concurrently.

J. Effect of COVID-19 on Sentence

 

65. We are in the midst of a worldwide pandemic, which has resulted in outbreaks in the prison population. [Redacted] seeks recognition of this collateral consequence, as his risk of infection will be higher if incarcerated.

 

66. In R. v. Morgan, 2020 ONCA 279, relying on R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, the Court of Appeal stated that collateral consequences do not diminish the offender's moral blameworthiness or render the offence less serious. The fundamental principle of proportionality must prevail. Collateral consequences cannot be used to reduce a sentence to the point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender. The more a sentence is varied from the range of appropriate sentences to address collateral consequences, the less likely it will remain proportionate to the gravity of the offence and the responsibility of the offender: Morgan, at paras. 9-11; R. v. Reddick, 2020 ONCA 786, at para. 11. The Court found that it was the role of the Ontario Parole Board to take into account the impact of COVID when determining if the offender should be granted parole.

 

67. Accordingly, while I have considered the impact of COVID in the penitentiary setting, it has a minimal mitigating impact on Mr Walker's sentence.

K. Consideration of the Friesen Factors

 

68. As directed, I have specifically considered the factors highlighted in Friesen.

 

(a)   Likelihood to Reoffend

69. In support of his position that he is not likely to reoffend, [Redacted] provided a guide to the Scoring Guide for the Child Pornography Offender Risk Tool ("CPORT"), his own completed CPORT Form, and the following three journal articles:

 

1)     Michael C. Seto, R. Karl Hanson & Kelly M. Babchishin, "Contact Sexual Offending by Men With Online Sexual Offenses" (2011) 23:1 Sexual Abuse 124;

2)     R. Karl Hanson & Monique T. Bussière, "Predicting Relapse: A Meta-Analysis of Sexual Offender Recidivism Studies" (1998) 66:2 J Consulting & Clinical Psychology 348; and

3)     Angela W. Eke, L. Maaike Helmus & Michael C. Seto, "A Validation Study of the Child Pornography Offender Risk Tool (CPORT)" (2019) 31:4 Sexual Abuse 456.

 

70. The Crown's position was that these articles and the CPORT test are not evidence of [Redacted]'s risk of reoffending.
71. With respect to the journal articles, none of the authors were called as witnesses, nor did any of them meet with [Redacted] or conduct any sort of assessment of him. In fact, [Redacted] did not provide evidence that he participated in any testing, or in a sexual behaviour or risk assessment with a psychologist or psychiatrist who could provide an opinion as to his specific risk of recidivism. In the event that [Redacted] had elected to call an expert in relation to his risk of recidivism, he could have put these articles to that expert and determine if that expert was familiar with the works. If the expert indicated that he was, then the articles could be put to the witness: R v. Marquard, [1993] 4 SCR 223 at page 251. [Redacted] elected not to do so.

 

72. The sole subjective source of evidence with respect to [Redacted]'s risk of reoffending is the CPORT form that was filled out on his behalf by his counsel. The authors of the reporting scheme were not called so as to give evidence of the veracity of the testing, nor were they subject to cross-examination.

 

73. The CPORT score of an offender was considered in the case of R. v. Mollon, 2019 BCSC 423. In that case, the offender engaged the services of a clinical psychologist to prepare a risk assessment report with an emphasis on the possibility of the level of insight into his offending and risk of reoffending, along with recommendation for treatment and community access. The CPORT score was just one of the factors considered by the psychologist. [Redacted] has presented no case law showing that the CPORT results were indicative of an offender's likelihood of reoffending, absent the evidence of a psychologist or psychiatrist who administered the test and could interpret its results for the court.

 

74. Accordingly, I find that [Redacted] offered no evidence and no proof of his low risk of re-offending. His CPORT questionnaire and the accompanying academic articles are of no assistance to the court. They do not address [Redacted]'s risk of re-offending.

 

b. Breach of Trust

 

75. The victims depicted in the videos and images were unknown to [Redacted] and accordingly, there were no breaches of trust to consider.

 

c. Duration and Frequency

 

76. In the world of child pornography, the court is not so focused on the number of times a child is abused in the images or videos (although this is a factor to consider), but rather on how many times these images or videos were watched, downloaded and replayed. As stated in Friesen at para. 48, citing Sharpe at para 92:

Technology can make sexual offences against children qualitatively different too. For instance, online distribution of films or images depicting sexual violence against a child repeats the original sexual violence since the child has to live with the knowledge that others may be accessing the films or images, which may resurface in the child's life at any time. [Citations omitted.]

 

77. I also rely on the conclusions reached by the Court of Appeal for Ontario in Tweedle, at para. 21:

 

[W]hile there was no specific evidence as to the number of occasions on which the appellant shared child pornography files, the conclusion that he had distributed child pornography on multiple occasions to multiple users was apparent from his participation in a file sharing program, with no evidence that he had blocked the sharing of files containing child pornography.

 

78. Accordingly, with the respect of the offence of making available child pornography, the placing of this offensive material on a peer-to-peer file sharing platform -- available for anyone to obtain, review and distribute again -- must result in the finding that the frequency of this type of abuse is high.

 

d. Age of the Victim

 

79. The children depicted in the seized materials are prepubescent, some appearing to be toddlers. The age of these victims is particularly aggravating.

 

e. Degree of Physical Interference

 

80. The degree of physical interference depicted in these images and videos is great. They depict digital and penile penetration and penetration by objects. There is fellatio and aggression.

 

f. Victim Participation

 

81. This is not a factor in this analysis. In no instance can it be said that these children participated in these activities. The idea is offensive in and of itself.

L. Application of Kienapple

 

82. [Redacted] has been convicted of three offences. He argues that the principles set out in Kienapple v. R., [1975] 1 S.C.R. 729, should apply. I agree. In that regard, I adopt the reasoning set out in R. v. Branco, 2019 ONSC 3591, and find that the charge of accessing child pornography should be stayed.

M. Credit for Pre-trial Custody and Bail Conditions

 

83. [Redacted] was in custody for 2 days prior to his trial. Accordingly, he will be granted credit for 3 days' pre-trial custody: s. 719(3.1), Criminal Code; R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, at para. 34.

 

84. [Redacted] also seeks credit as a result of what he submits to be restrictive terms of bail, pursuant to R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.). I do not find that any such credit is applicable in these circumstances. [Redacted] was not under house arrest. He was not subject to a curfew. Upon request, his terms were varied on consent to allow him to spend time at his cottage. Other than his restrictions on the use of technology, he was free to find employment of any other type that did not bring him in contact with children. While I accept that his restrictions about contact with children could be awkward at times, they in no way prevented him from living freely in his community, as long as he took precautions.

N. Conclusion

 

85. Accordingly, for the foregoing reasons, I find that the mandatory minimum sentences set out in ss. 163.1(3) and 163.1(4.1) of the Criminal Code violate s. 12 of the Charter and accordingly are of no force or effect.

 

86. With respect to an appropriate sentence for [Redacted], I impose the following:

 

(a)   On the count of possessing child pornography, a period of incarceration of 2 years; for the count of making available child pornography, a period of incarceration of 3 years, served concurrently, less credit for pre-trial custody;

(b)   A forfeiture order of particular equipment seized from his home office in accordance with the Order signed in court;

(c)   An order that [Redacted] shall have a sample of his blood taken for inclusion of his DNA profile in the National DNA Databank;

(d)   An order that [Redacted] comply with the Sex Offender Information Registration Act for life; a

(e)   An order under s. 161(1)(a),(b) and (c) of the Criminal Code prohibiting [Redacted], for a period of ten (10) years, from:

1)     attending a public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;

2)     seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; and

3)     having any contact by means of telecommunication with a person who is under the age of 16 years, unless the offender does so under the supervision of the child's parent or legal guardian; and

(f)    An order pursuant to s. 161(1)(d) of the Criminal Code directing that for a period of ten (10) years, [Redacted]'s use of the internet shall be in accordance with the following conditions:

 

1)     You may possess an internet capable device and use it to access the internet in accordance with the conditions below; however, you must do so on a device for which you are the sole owner and user. Further, the internet service must be in your own name or else provided through your employer or the education institution you are attending, if applicable;

2)     You may not access the internet using public wi-fi services, internet cafes, or via shared public computers (e.g. computers at a public library);

3)     Except as outlined in writing by your employer for legitimate work purposes, you shall not use any encryption software or security program designed to prevent access to the contents of your internet capable devices or take independent action to encrypt any digital storage devices in your possession. Except as outlined in writing by your employer for legitimate work purposes, you shall not install or permit to be installed on your internet capable device any software or service designed to defeat forensic analysis of the internet capable device;

4)     Except as outlined in writing by your employer for legitimate work purposes, you shall not use or permit to be installed on any device in your possession any program or service designed to allow anonymous use of the internet (e.g. TOR browser);

5)     You shall not use or permit to be installed on any device in your possession any scrubbing software or software that saves files in an encrypted fashion;

6)     You are not to directly or indirectly access any Peer-to-peer file sharing networks (including but not limited to motherless, LimeWire, gnutella, bearshare, shareaza); and

7)     You are not use any telecommunication device to access the Internet or other digital network in order to possess or access content that violates the law.