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Criminal - Sentencing - Sex Offences - Child. R. v. Pike
In R. v. Pike (Ont CA, 2024) the Ontario Court of Appeal affirms the trial judge's finding of unconstitutionality of the mandatory minimum sentence for child pornography [CCC 163.1(3)]:(c) The Mandatory Minimum for Importing Child Pornography Is Unconstitutional
[183] The s. 163.1(3) Criminal Code importing offence of which the trial judge convicted Mr. Scott carries a mandatory minimum punishment of one-year imprisonment. The trial judge declared it to be of no force or effect under s. 52 of the Constitution Act, 1982 because it violates s. 12 of the Charter, which prohibits cruel and unusual punishment. I agree. In John, this court held that the former six-month mandatory minimum for the related possession offence was unconstitutional because it applied to, for instance, an 18-year-old who inadvertently received, but failed to delete, an intimate image depicting a friend’s 17-year-old girlfriend: at paras. 38-40. As the trial judge reasoned, this same reasonable hypothetical applies, in modified form, to importing since an 18-year-old who exited and re-entered Canada with that image on their digital device could be convicted of importing. The modest added gravity of importing in this scenario relative to the reasonable hypothetical from John does not justify a one-year mandatory minimum that is double the six-month mandatory minimum that John ruled was unconstitutional. The Crown admits it has no reasonable counterargument. . R. v. Pike
In R. v. Pike (Ont CA, 2024) the Ontario Court of Appeal extensively considers the rational behind, and sentencing for, child pornography:(a) Sentencing Principles for Child Pornography Possession
[143] Ever since Parliament created the child pornography offences in s. 163.1 of the Criminal Code in 1993, courts have been on a “learning curve” to understand their wrongs and harms: R. v. D.G.F., 2010 ONCA 27, 98 O.R. (3d) 241, at para. 21. To further judicial progress along this learning curve, I apply the child-centered approach from R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, and address the distinct wrongs and harms of the s. 163.1(4) offence of possessing child pornography, its gravity, and perpetrators’ moral blameworthiness: R. v. Bertrand Marchand, 2023 SCC 26, 487 D.L.R. (4th) 201, at paras. 32-33. This guidance also applies to people who commit the s. 163.1(3) offence of importing child pornography if, like Mr. Scott, they possess the material they import.[14]
(i) Possession’s Distinct Wrongs and Harms
[144] The extent and harmfulness of child pornography has long been on the rise. In the pre-Internet age, it was more challenging and riskier to produce, distribute, and acquire child pornography through the mail or in-person, and the authorities successfully disrupted many production and distribution networks: Badgley Report, vol. 2, at pp. 1139-1210. The Internet transformed this dynamic by enabling perpetrators to produce, distribute, and acquire child pornography more quickly and easily, and with much less risk of detection. This increased the number of people who possess child pornography, incentivized producers to victimize more children in more extreme ways to satisfy their demand for new material and made it harder to identify victims. Further, the Internet enabled perpetrators to form online communities that normalize their crimes and encourage more extreme forms of offending. Finally, because recordings of children’s victimization remain online forever once posted, the Internet intensified the harms victims suffer and extended them into adulthood: R. v. J.S., 2018 ONCA 675, 142 O.R. (3d) 81, at paras. 14-20, 99-104, 120; R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, at para. 26.
[145] Child pornography has also become a global cancer that Canada has international duties to combat. Technological developments made it all too easy for producers from Canada and other developed countries to target vulnerable children from developing countries that often lack adequate child protection and policing mechanisms and disseminate the recordings of their victimization to a global audience: R. v. Booth, [2009] NSWCCA 89, at para. 41. As this cancer metastasized, the world came together to fight it. Canada, and nearly every other country, ratified the Convention on the Rights of the Child, Can. T.S. 1992 No. 3, and the Rights of the Child Protocol, thus pledging themselves to protect children from exploitation by preventing the spread of child pornography and imposing penalties that reflect the gravity of producing, distributing, and possessing it: R. v. Hewlett, 2002 ABCA 179, 167 C.C.C. (3d) 425, at paras. 19-20.
[146] At the dawn of the digital age and as the world came together to combat the spread of child pornography, the Supreme Court largely upheld Canada’s child pornography laws in R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45. Sharpe explains that Parliament criminalized possessing child pornography because the perpetrators of this offence violate children’s dignity, invade their privacy, inflict severe emotional harm, instigate producers to abuse children to meet the demand for child pornography, risk inciting and facilitating other offences against children, and perpetuate pernicious messages that undermine children’s humanity and equality.[15] I unpack these six distinct wrongs and harms in these reasons.
[147] First, people who possess child pornography violate children’s dignity. Because child pornography depicting real children “cannot come into existence without [their] exploitation and abuse” (Booth, at para. 41), perpetrators “possess[] … crime scene images of child sexual abuse” or exploitation: R. v. Hughes, 2014 ONCJ 231, at para. 24; see Sharpe, at para. 169. By possessing and viewing those crime scene images, they 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: Sharpe, at paras. 92, 158, 169; Audrey Rogers, “The Dignitary Harm of Child Pornography—From Producers to Possessors,” in Carissa Byrne Hessick, ed., Refining Child Pornography Law: Crime, Language, and Social Consequences, (Ann Arbor: University of Michigan Press, 2016) 165, at pp 177-180. They treat children as “voiceless, absent object[s]” that are property to collect like trading cards (Hanna Roos, “Trading the Sexual Child: Child Pornography and the Commodification of Children in Society” (2014) 23 Tex. J. Women & L. 131, at p. 150) and exploit like “props in a perverted show” (D.G.F., at para. 22). This assault on children’s dignity offends their rights and the basic principles of our law, which “will not suffer the insult to the human spirit, that the child should be treated as a thing”: U.S. v. Wiegand, 812 F.2d 1239 (9th Cir. 1987), at p. 1245, cert. denied, 484 U.S. 856 (1987).
[148] Second, people who possess images of the abused and exploited children directly invade children’s privacy. This privacy violation is “extreme”: Sharpe, at para. 241. Child pornography’s very existence violates children’s privacy interest in preventing uncontrolled disclosure of their abuse and exploitation to third parties, an interest so strong that Parliament requires judges to protect it in every child pornography case: U.S. v. Norris, 159 F.3d 926 (5th Cir. 1998), at p. 930, cert. denied, 526 U.S. 1010 (1999); Criminal Code, s. 486.4(3). Perpetrators repeatedly violate that interest, first by acquiring material, and then by cataloguing and viewing it. Like receivers of stolen goods, they acquire stolen recordings whose production and distribution children cannot consent to, thus robbing children of control over to whom, and in what context, to disclose their abuse and exploitation: R. v. Cook, [2004] QCA 469, at para. 21; Hewlett, at para. 24; Andrea Slane, “From Scanning to Sexting: The Scope of Protection of Dignity-Based Privacy in Canadian Child Pornography Law” (2010) 48 Osgoode Hall L.J. 543, at p. 562. These recordings’ permanent nature intensifies the wrong by capturing children’s victimization in detail in a form that people who possess these recordings can access, study, and manipulate: Jarvis (2019), at para. 62.
[149] Third, people who possess child pornography inflict severe emotional harm on children. “It takes great strength and courage to survive sexual violence as a child” because of the myriad physical and emotional harms that it causes: Friesen, at para. 59 (internal quotation omitted). People who possess child pornography make the challenging path of recovery for children much steeper by transforming the initial exploitation and violence of the production into a continuing violation. After the trauma of the production of the recordings of their victimization, children suffer further pain when they learn that unknown perpetrators have accessed and can view those recordings: Sharpe, at para. 92; R. v. Snowden, 2023 ONCA 768, 432 C.C.C. (3d) 52, at para. 93. They then suffer a “slow acid drip of trauma” each time they learn that a perpetrator has acquired and/or viewed those recordings: U.S. v. McDaniel, 631 F.3d 1204 (11th Cir. 2011), at p. 1209 (internal quotation omitted). In short, perpetrators reopen children’s wounds again and again, and, by revictimizing them, prevent and hinder their recovery from the initial violence and exploitation resulting from the production of the recordings: R. c. R.G., 2021 QCCQ 9958, at paras. 21-22; see also D.G.F., at para. 25; Molly Smolen, “Redressing Transgression: In Defense of the Federal Sentencing Guidelines for Child Pornography Possession” (2013) 18 Berkeley J. Crim. L. 36, at pp. 46-47, 51-53.
[150] People who possess child pornography also cause distinct additional harm. They make children feel powerless because they cannot destroy or control the dissemination of child pornography that is posted online, leading them to fear that perpetrators will recognize them in person and target them for additional abuse: D.G.F., at para. 25; R.G., at para. 21. Further, they cause children to become anxious that they are taking pleasure in the recordings of those children’s victimization and even using those recordings to abuse other children: Sharpe, at para. 92; R. v. McCrimmon, 2022 YKCA 1, at para. 15. Finally, they humiliate children and undermine their self-worth by violating their privacy and dignity: Sharpe, at para. 164. Recordings that falsely portray the victim as somehow consenting or enjoying their victimization heighten the humiliation by causing victims to worry about how offenders are misperceiving them. People who possess child pornography thus cause ongoing psychological harm to children that can extend long into adulthood: D.G.F., at para. 25; R.G., at para. 21.
[151] Fourth, people who possess child pornography “instigate the production and distribution of child pornography” and, thus, the sexual abuse and exploitation of children: R. v. Stroempl (1995), 1995 CanLII 2283 (ON CA), 105 C.C.C. (3d) 187 (Ont. C.A.), at p. 191; see Sharpe, at paras. 28, 92, 166, 209, 235. Their willingness to acquire child pornography “necessarily creates a market for the … exploitation of children” (R. v. Liddington (1997), 18 W.A.R. 394, at p. 403) and, thus, “adds to the scale of human misery” (R. v. Toomer, [2001] 2 Cr.App.R.(S.) 8, at para. 6) and fuels a “cycle of abuse” in which producers continue abusing existing victims and seek out new victims (J.S., at para. 101 (citation omitted)). People who possess child pornography actively participate in that market because, just as fewer people would steal if no one wanted stolen goods, fewer people would make child pornography if no one sought it: D.P.P. v. Garside, [2016] VSCA 74, 50 V.R. 800, at para. 71; R. v. Jongsma, [2004] VSCA 218, 150 A. Crim. R. 386, at para. 28. People who seek to possess such images motivate both commercial producers and those who seek prestige or simply the knowledge that others desire the material they make: R. v. Kwok, 2007 CanLII 2942 (Ont. S.C.), at para. 50 (“Kwok (2007)”). They share responsibility for abusing and exploiting children with producers, without whom they could not exist because there would then be no one to abuse children for them by proxy: Norris, at p. 930.
[152] Fifth, possessing and viewing child pornography can incite perpetrators to commit and facilitate their commission of other sexual offences against children. To begin with, it leads them to deny and minimize the wrongfulness of, rationalize and normalize, and even fantasize about sexually exploiting children: Sharpe, at paras. 87-89, 200-203. While some people who possess child pornography compartmentalize their distorted thinking and fantasies from reality, for others, “the line between fantasy and reality [] blur[s]” (Smolen, at p. 58) and they “act[] out [their] fantasy” through contact offending or other offences: R. v. Scrivens, 2019 ABQB 700, at para. 201. They can show material to children to facilitate these offences by lowering inhibitions and blackmailing them to participate: Sharpe, at paras. 91, 205-208; R. v. Moreira, 2013 ONCJ 801, at para. 2. This wrongful behaviour conscripts the recordings of children’s victimization, to whose production and subsequent wrongful use children cannot consent, to fuel a cycle of abuse of both original and new victims: Ian O’Donnell & Claire Milner, Child Pornography: Crime Computers and Society (Cullompton: Willan Publishing, 2007), at p. 74.
[153] People who both possess child pornography and participate in the child pornography subculture expose children to heightened risk. They integrate themselves into a repugnant and often hierarchical community whose currency is child pornography and whose upper ranks are staffed by producers and distributors. Their confederates legitimize their actions and spur them to climb up the community’s ranks by producing and distributing more recordings of children’s victimization, thus transforming possession into a gateway to graduate to even more serious offending: J.S., at paras. 14-20, 49, 99-101; D.G.F., at para. 25; Kwok (2007), at para. 52.
[154] Sixth, people who possess child pornography perpetuate pernicious messages that attack children’s humanity and equality. Children have “absolute dignity and infinite value” and deserve equal respect: Granovsky v. Canada (Minister of Employment and Immigration), 2000 SCC 28, [2000] 1 S.C.R. 703, at paras. 56-57 (quotation omitted); see also Friesen, at paras. 42, 65. Our society’s future depends on respecting these principles so that children can grow healthily from a position of vulnerability by virtue of their age, dependency, and need, into adulthood and leadership: Friesen, at para. 1. These principles’ fundamental status reflects centuries of hard-won progress by moving away from treating children as property for adults to abuse, exploit, and exchange, and towards recognizing children’s rights and the responsibilities that adults owe children: Michel v. Graydon, 2020 SCC 24, [2020] 2 S.C.R. 763, at para. 77, per Martin J. (concurring).
[155] Child pornography inverts these values by “perpetuat[ing] lies about children’s humanity”: Sharpe, at para. 183. It lies to children by normalizing their sexual abuse and exploitation: Sharpe, at para. 205. It also lies to adults. By falsely depicting children seeming to participate in their own exploitation, it erases children’s vulnerability and wrongly suggests they can consent, or that their exploitation is not a real crime: Sabine K. Witting, “The ‘greyscale’ of ‘child pornography’: of mangas, avatars and school girls: Part 2” (2018) 24 C.T.L.R. 73, at pp. 79-80. Further, it sexualizes children’s inequality and vulnerability by portraying them as property for adults to collect, exploit, and exchange, even to the point of glorifying their enslavement. This erases adults’ responsibility towards children and sends the dangerous message that the wants of adults trump the needs of children: at paras. 158, 185; R. v. Miller, 2017 NLCA 22, 354 C.C.C. (3d) 58, at para. 29; Roos, at p. 152.
[156] Canada’s child pornography laws combat these harmful lies because they reawaken the long-banished ideas that children are property for adults to exploit and transfer from owner to owner: Sharpe, at paras. 158, 163, 167, 184-185. Like hate propaganda, these repugnant falsehoods undermine children’s self-respect and belief in their own dignity. And by preaching that it is legitimate to exploit children, these lies risk fostering violence and discrimination: R. v. Butler, 1992 CanLII 124 (SCC), [1992] 1 S.C.R. 452, at pp. 496-497.
(ii) Possessing Child Pornography Is a Grave Offence
[157] Possession is a grave offence because it causes these wrongs and harms. “[C]ourts do not see [possession as] a minor, or victimless crime” (Kwok (2007), at para. 52) or one that merely seeks to prevent future risks to children that have not yet materialized: Smolen, at p. 60. Rather, “possession of child pornography is itself child sexual abuse”: Inksetter, at para. 22 (quotation omitted). People who possess child pornography participate in the producer’s initial sexual abuse of children through the market that their demand creates, and drive demand for even more abuse. They also independently abuse those children by violating their dignity and privacy, which causes them severe emotional harm.
[158] Parliament has responded to society’s increasing awareness of the gravity of this offence by determining that courts should punish it more severely. As this court explained in R. v. Jewell (1995), 1995 CanLII 1897 (ON CA), 100 C.C.C. (3d) 270 (Ont. C.A.), at p. 278, Parliament began to do so in 1993 by establishing a five-year maximum sentence for possessing child pornography when prosecuted by indictment, more than double the two-year maximum for the obscenity offence that formerly applied to making and distributing child pornography: An Act to amend the Criminal Code and the Customs Tariff (child pornography and corrupting morals), S.C. 1993, c. 46, s. 2.[16] Parliament next doubled the maximum sentence when prosecuted by indictment from the initial five-year cap to 10 years in 2015 and quadrupled the maximum sentence for summary conviction prosecutions from the initial six-month cap[17] to two years less a day in successive 2005 and 2015 increases: An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, S.C. 2005, c. 32, s. 7(4) (“Bill C-2”); Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, s. 7(2); Friesen, at paras. 96-100; Inksetter, at paras. 23-24. These increases give effect to Canada’s Rights of the Child Protocol duty to impose penalties that reflect this offence’s gravity: Hewlett, at para. 20; Bill C-2, preamble.
[159] Parliament has also recognized the gravity of this offence by directing courts via s. 718.01 of the Criminal Code to prioritize denunciation and deterrence. Prioritizing denunciation communicates that perpetrators’ sexual exploitation of children is intolerable and combats their attempts to minimize their conduct as harmless or victimless: Inksetter, at para. 16; Friesen, at para. 105; Kwok (2007), at para. 58. It sends a strong message that children are people with infinite value and dignity whose healthy development adults have a responsibility to promote, rather than property for perpetrators to acquire and exploit as if they were slaves to the perpetrators’ whims. Likewise, prioritizing general deterrence is important because, while the certainty of detection is generally more likely to deter than the severity of penalties (R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 113), possession of child pornography is a difficult offence to detect. By imposing stricter sentences, courts compensate for the difficulty of detection by warning would-be perpetrators that, while there is a chance they might escape detection, they will face severe consequences if caught: R. v. Lynch-Staunton, [2012] O.J. No. 313 (S.C.), at paras. 56-57. Many people who possess child pornography are likely to be deterred by the prospect of strict sentences because they often are otherwise law-abiding people of good character and employment without prior convictions: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 73; Kate Warner, “Sentencing for child pornography” (2010) 84 A.L.J. 384, at p. 390.
[160] Courts must follow Parliament’s direction by placing children and the wrongs and harms that people who possess child pornography inflict on them at the centre of the sentencing process. 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: Friesen, at paras. 91-92, 104. 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. The police struggle to identify the producers of these images and the children they victimize because the producers abuse and exploit those children in private homes or in countries oceans away: J.S., at para. 104; HM Advocate v. Graham, [2010] HCJAC 50, 2011 J.C. 1, at para. 45. Courts must overcome this invisibility by making child victims the central focus: Friesen, at paras. 53, 67, 74-75; see also Bertrand-Marchand, at para. 32. 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: Friesen, at para. 104; R. v. Porte, [2015] NSWCCA 174, 252 A. Crim. R. 294, at paras. 88, 128.
(iii) Perpetrators’ Degree of Responsibility
[161] Courts must reject myths that minimize the degree of responsibility of those who possess child pornography, and the wrongfulness and harmfulness of their conduct: Friesen, at paras. 43, 87. 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: see, e.g., Mary Graw Leary, “The Language of Child Sexual Abuse and Exploitation,” in Hessick, ed., Refining Child Pornography Law 109, at pp. 122-124; O’Donnell & Milner, at pp. 194-195; Smolen, at pp. 53‑55, 70-71. These myths cannot conceal an all-too-obvious reality: People who possess child pornography exploit real child victims callously, deliberately, and repeatedly. Failing to recognize this reality risks “undermin[ing] the credibility of the criminal justice system in the eyes of victims, their families, caregivers, and communities, and the public at large”: Friesen, at para. 43.
[162] To begin with, the conduct of those possessing child pornography is very morally blameworthy because they intentionally exploit vulnerable children: Friesen, at para. 90. Because these children “exist outside [the perpetrator’s] mind,” their very existence and the harm they suffer rebuts the myth that possession is a “psychological crime”: U.S. v. Goff, 501 F.3d 250 (3d Cir. 2007), at pp. 258-259. By seeking out child pornography, people who possess this material also wrongfully foster demand that drives more victimization and run the risk that the material they seek to acquire and view could incite and facilitate the commission of other offences against children.
[163] Further, possession is a “callous” crime because perpetrators are confronted with child abuse and exploitation that would horrify and repulse right-thinking people each time they view the material: Booth, at para. 42. They display a disturbing lack of empathy and compassion by continuing to collect and view this material without considering the plight of the victims it depicts: D.P.P. v. D’Alessandro, [2010] VSCA 60, 26 V.R. 477, at para. 23; Lynch‑Staunton, at para. 51.
[164] Moreover, possession 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: R. v. O’Donovan, 2021 ABPC 216, at para. 28, quoting R. v. Hammond, 2009 ABCA 415, 249 C.C.C. (3d) 340, at para. 11; Liddington, at pp. 402-403; Roos, at p. 149. 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 (Bertrand Marchand, at para. 128), 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: Friesen, at para. 132; U.S. v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc), at pp. 1198‑1200, cert. denied, 563 U.S. 917 (2011); Porte, at paras. 71-72.
[165] Finally, possession involves repeated conduct. Possession is a continuing choice because people who possess child pornography do not merely access material once but rather retain it, often indefinitely or for a significant period: Jongsma, at para. 28; Hammond, at paras. 6, 12. Further, they often make deliberate choices to acquire more material, organize their collection, and repeatedly view their images, victimizing children each time they do so: Liddington, at pp. 402-403; Inksetter, at para. 22. These choices demonstrate that possession generally is neither “a momentary lapse” nor an isolated act: D.P.P. v. Zarb, [2014] VSCA 347, 46 V.R. 832, at para. 31. The fact that prosecutors often charge numerous instances of acquiring, collecting, and viewing many images under one count should not distract courts from the reality that people who possess child pornography have usually engaged in numerous episodes of criminal conduct: Friesen, at para. 132; R. v. De Leeuw, [2015] NSWCCA 183, at para. 116; Smolen, at pp. 70-71. At paras 166-182 the court further considers sentencing for child pornography.
. R. v. Parker
In R. v. Parker (Ont CA, 2024) the Ontario Court of Appeal allowed a child sex offence sentencing appeal:(a) Proportionality and parity
[23] Mr. Parker argues that the trial judge failed to determine the sentencing range that applies to the child pornography offences for which he was convicted. Although I agree that the trial judge erred in this context, I would characterize the error differently. In my view, the trial judge erred in failing to consider whether there was parity between the sentences imposed on Mr. Parker as compared to sentences imposed on similar offenders in similar circumstances.
[24] Before addressing this issue directly, it is important to emphasize the seriousness of the offences in this case. This court has repeatedly stated that denunciation and deterrence are the paramount sentencing objectives for offences involving child pornography: R. v. McCaw, 2023 ONCA 8, 165 O.R. (3d) 179, at para. 28; R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, at paras. 16, 25; R. v. J.S., 2018 ONCA 675, 142 O.R. (3d) 81, at para. 57, R. v. M.M., 2022 ONCA 441, at para. 15. This is consistent with 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. [25] This is also consistent with the Supreme Court’s decision in Friesen, where the court stated that sentences for sexual offences committed against children must increase in order to denounce the wrongfulness of such conduct and to recognize the serious harm it causes: at para. 74. While the court in Friesen was explicitly dealing with sentencing for the offence of sexual interference and what the court described as closely related offences, namely invitation to sexual touching, sexual exploitation, incest and sexual assault, the court stated that the principles it was establishing should also apply to sentencing for other sexual offences against children: at para. 44. The court acknowledged that technology has created conditions that allow for the proliferation of sexual violence against children, including through the distribution of child pornography, which the court stated “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”: Friesen, at para. 48.
[26] In Friesen, the court declined to establish a specific range of sentences for sexual interference and the closely related offences it identified, stating instead that each province should establish its own range: at para. 106. The court nevertheless stated that, regardless of existing sentencing ranges, sentences for violent sexual offences against children should increase to reflect society’s enhanced understanding of the harm caused by these offences. The court also stated that, while it was not establishing a range, “mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances”: at para. 114.
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[28] I disagree. It is well established that the failure to refer to or rely on a sentencing range is not an error in principle: Friesen, at para. 37. However, sentencing judges are nevertheless bound by the principles of proportionality and parity. Sentencing judges may commit an error in principle if the sentence imposed does not comply with the principles of proportionality and parity: R. v. Lin, 2020 ONCA 768, 97 C.C.C. 768, at para. 20.
[29] It is a fundamental principle of sentencing that sentences must be proportionate to the gravity of the offence and the responsibility of the offender: Friesen, at para. 30. In addition, parity, an expression of proportionality, requires that “similar offenders who commit similar offences in similar circumstances should receive similar sentences”: Friesen, at paras. 31-33.
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[31] .... As reviewed above, in Friesen, the Supreme Court was explicitly dealing with sentences for sexual interference and the listed related offences. In that context, the court clearly stated that offences involving child pornography are also very serious and that sentencing for such offences should increase in recognition of the wrongfulness of the conduct and the serious harm caused to children. However, the decision cannot be read as suggesting that sentencing for offences involving the making available and possession of child pornography should necessarily be in the same range as sentencing for sexual interference and the other related offences.
[32] More importantly, since Friesen, this court has recognized and endorsed the need to increase sentences for offences involving child pornography but has never suggested that the guidance in Friesen for sexual interference sentences applies directly to sentences for making available or possession of child pornography. I now turn to reviewing six recent decisions of this court that make this point clear.
[33] In R. v. Walker, 2021 ONCA 863, the offender was found guilty of accessing child pornography, possessing child pornography and distributing child pornography. The materials at issue involved prepubescent children, including toddlers, and the offender was found to have made these widely available on a peer-to-peer sharing platform. This court upheld a three year custodial sentence.
[34] In R. v. Olivetti, 2022 ONCA 142, the offender pled guilty to possession of child pornography. The police had found 11,000 images and 88 videos of child pornography on the offender’s hard drive, consisting primarily of depictions of prepubescent girls. The appellant had a prior conviction for sexual offences against children. The trial judge accepted a joint submission for a four year custodial sentence. This court upheld the sentence as fit.
[35] In R. v. Brown, 2022 ONCA 516, the youthful first-time offender was convicted of accessing, possessing and making available child pornography. The trial judge erroneously found there were 2,500 files, when there were in fact 500 relevant files. Many of the files were characterized as “severe”, meaning they depicted sexual violence against children. The offender was sentenced to three years. This court did not interfere with the imposed sentence, as 500 files was considered a very large quantity warranting a significant sentence.
[36] In McCaw, the offender pled guilty to possession of child pornography. When executing a search warrant, the police found seven images and three videos depicting adult men performing sexual acts on male children between the ages of 1 and 12 years old. The offender had previously been convicted twice of distributing and possessing child pornography. This court allowed a Crown appeal of an 18-month conditional sentence and, instead, substituted a custodial sentence of 3 years.
[37] In R. v. M.V., 2023 ONCA 724, 196 O.R. (3d) 321, the offender pleaded guilty to several offences, including sexual interference, child luring and possession of child pornography. This court set aside a global sentence of 8 years because it did not accord with the parties’ joint submission, and instead imposed a sentence of 5.5 years, which included a consecutive sentence of 1 year for possession of child pornography. In his reasons, Paciocco J.A. noted that no range has been established for sentencing for possession of child pornography, but that, generally, post-Friesen sentences varied between one year and three years. He held that the circumstances of the offence in that case fell on the lower end of the spectrum, on the basis of which he concluded that the one year consecutive sentence was appropriate.
[38] In R. v. Covil, 2024 ONCA 292, the offender pled guilty to breaching a prohibition order, mischief and obstructing a peace officer, and he was found guilty of distributing child pornography. The trial judge imposed a global six year sentence. This court found the reasons of the trial judge inadequate, in part because there was no explanation for the marked departure from the sentence imposed in McCaw. The court substituted a global sentence of five years.
[39] I find that it was an error in principle for the trial judge to fail to have regard to whether there was parity between the sentence he imposed and sentences imposed for similar offences in similar circumstances. Of course, as previously noted, this would not be an error in principle if the error had no impact on the appropriate sentence in this case. However, as reviewed above, the eight-year sentence for making child pornography available and the six-year sentence for possession of child pornography far exceed the sentences upheld or imposed by this court since Friesen. The trial judge did not consider these decisions, nor did he provide an explanation for the departure from sentences imposed by this court for making child pornography available and possession of child pornography since Friesen. . R. v. Faroughi
In R. v. Faroughi (Ont CA, 2024) the Court of Appeal considered (and dismissed) an appeal from a conviction for child luring [CCC 172.1(1)(a,b)] and "communicating for the purpose of obtaining for consideration the sexual services of a person under the age of 18" [CCC 286.1(2)].
Here the court considers sentences for child sex offences, here 'child luring':[93] In terms of the gravity of the appellant’s offences, there is no question that they were serious, particularly in light of their mens rea requirements. As Friesen made clear, courts must impose sentences that are commensurate with the gravity of sexual offences against children: at para. 76. In light of Parliament’s decision to increase maximum sentences for these offences and society’s improved understanding of the severity of the harm arising from such offences, sentences for these crimes must increase, and mid-single digit penitentiary terms should be viewed as normal: Friesen, at paras. 5, 99, 114.
[94] In ascertaining the gravity of sexual offences against children, courts must give effect to (a) the inherent wrongfulness of these offences; (b) the potential harm to children that flows from these offences, and (c) the actual harm that children suffer as a result of these offences: Friesen, at para. 76. Because of their inherent wrongfulness, inchoate offences that occur within the context of a police sting operation, such as the ones committed by the appellant, should never be viewed as “victimless”: Friesen, at para. 94. Although the absence of a specific victim is relevant to ascertaining an offence’s gravity, it cannot be overemphasized – the accused gets no credit for this factor: Friesen, at para. 93. In the child luring context, other relevant considerations can include: (a) the secondary offence being facilitated; (b) the duration and frequency of the communications; and (c) the age difference between the parties: see R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, at paras. 146-47.
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[95] When these considerations are weighed, it remains undoubtedly true that the offences were serious, recognizing that the appellant communicated with someone who he believed to be below the age of 16 for the purpose of obtaining sexual services involving extensive sexual activity.
[96] In terms of the offender’s degree of responsibility, multiple factors are relevant, including: (a) the mens rea of the offence; (b) the offender’s conduct in the commission of the offence; (c) the offender’s motive; and (d) the offender’s personal circumstances: R. v. Hills, 2023 SCC 2, 477 D.L.R. (4th) 1, at para. 58. The mens rea of the appellant’s offences are highly morally blameworthy: see Friesen, at paras. 88-89.
[97] There are also factors that attenuate the appellant’s culpability including his age and his lack of sophistication.
[98] A fit sentence must also consider the appellant’s other mitigating factors, including: his lack of criminal record, his sincere remorse, his pro-social lifestyle, his family support, his complete lack of risk to the public, his proactive participation in sexual offence treatment, his proactive volunteer work, and, as indicated in his fresh evidence, his significant medical hardships. The personal circumstances of this appellant require this court, while giving due consideration to denunciation and deterrence, to meaningfully consider the principle of restraint and assess whether a non-carceral sentence is appropriate: Batisse, at para. 32.
[99] This court has consistently reiterated post-Friesen that conditional sentences will rarely be appropriate for sexual offences against children: see M.M., at para. 16; B.M., at para. 2. Even so, in some exceptional circumstances, incarceration will not be appropriate. For example, without creating any bright-line rules, this court in M.M. suggested that some offenders experiencing medical hardship that cannot be adequately addressed within a correctional facility may fall within these circumstances: at para. 16. As I will explain, I am satisfied that, given the appellant’s immaturity and sexual inexperience at the time of the offence, the fact that this was his first offence, his recent medical hardships, and his impressive efforts in taking accountability for his actions and serving his community post-sentence, a conditional sentence is available in these circumstances.
[100] To be clear, nothing in these reasons should be taken as suggesting that the sentencing range for these offences has changed, nor should it be taken as suggesting that a conditional sentence will always be appropriate for a youthful first-time offender who commits these offences.
[101] However, other Project Raphael cases where carceral sentences were found to be appropriate are clearly distinguishable from the case at bar. In the following cases the offenders were much older than the appellant: Cowell; R. v. Aguilar, 2022 ONCA 353. This court also upheld or substituted carceral sentences of around six months against relatively youthful first-time offenders in Jaffer (ONCA) and R. v. Chang, 2019 ONCA 924. The appellant’s circumstances, however, remain distinct from those cases because he was a teenager at the time of the offences and he has other significant mitigating factors, particularly his physical health problems and extensive proactive participation in therapy and community service.
[102] When determining whether a conditional sentence is appropriate, a court must engage in a two-step process. First, the court must make a preliminary determination that neither probation nor a penitentiary term is appropriate: Proulx, at para. 58; R. v. Scholz, 2021 ONCA 506, 156 O.R. (3d) 561, at paras. 26-27. Second, assuming the offender satisfies the other statutory prerequisites enumerated under s. 742.1 of the Code, the court must determine whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing: Proulx, at para. 60.
[103] In this case, the preliminary step is satisfied because probation would insufficiently advance denunciation and deterrence, and a carceral sentence of two years or greater would be excessive. Moreover, the appellant meets the other statutory prerequisites. While offences subject to a mandatory minimum are not eligible for a conditional sentence pursuant to s. 742.1(b), because the appellant challenged the constitutionality of the mandatory minimums, the assessment of a fit sentence can still consider the adequacy of this alternative to a carceral sentence: see Hills, at para. 143.
[104] The key question then becomes whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing. In the context of sexual offences against children, conditional sentences will often fail to adequately achieve denunciation and deterrence, which have a paramount status for these kinds of offences: see Friesen, at paras. 101-5. As stated in Proulx, at para. 114, “[w]here punitive objectives such as denunciation and deterrence are particularly pressing … incarceration will generally be the preferable sanction”.
[105] However, because the appellant was a first-time offender and was still a teenager at the time of the offence, the restraint principle, and the associated need to meaningfully consider the objective of rehabilitation, also take on an elevated importance. Similarly, the recent onset of the appellant’s significant physical health issues must be taken into consideration in crafting a fit sentence. Through expressing genuine remorse, proactively participating in sex offence therapy, completing his engineering degree, and volunteering hundreds of hours for charity, the appellant has taken real steps to rehabilitate, provide reparations to the community, and promote a sense of responsibility and acknowledgement of harm. His sentence should not undermine this progress.
[106] Recognizing the unique circumstances of this case where there is a genuine need for the sentence to reflect the principles of denunciation and deterrence while giving effect to restorative objectives, I am satisfied that concurrent conditional sentences of nine months are fit: see Proulx, at para. 100. To adequately achieve the objectives of denunciation and deterrence, the conditional sentences will include punitive conditions, such as house arrest: Proulx, at paras. 102-3, 107. These objectives will also be achieved by the stigma associated with the appellant’s convictions: Proulx, at para. 105. Conditional sentences better advance the rehabilitative prospects of an offender: Proulx, at para. 109. That is especially true here. There is a real risk that a carceral sentence, even of a limited duration, would expose this youthful offender to harm and interfere with his rehabilitation.
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