Lisa Henderson

This is a Crown appeal of an 18-month custodial sentence imposed on the respondent for making child pornography, distributing child pornography, and voyeurism involving two child victims.

The Crown sought a five-year sentence, arguing the sentencing judge erred by elevating the offender's age and rehabilitation potential over denunciation and deterrence, and by failing to recognize a breach of trust.

The majority of the Court of Appeal dismissed the Crown's appeal, finding that the sentencing judge properly balanced the sentencing objectives, including the principle of restraint for young first offenders, and did not err in not finding a breach of trust.

The dissenting judge would have allowed the appeal, arguing the sentencing judge erred in principle by prioritizing the offender's age and failing to address aggravating factors like the familial relationship, resulting in an unfit sentence.

The appellant appealed a 22-month jail sentence for accessing and possessing child pornography, seeking a conditional sentence and arguing errors in considering an unconstitutional mandatory minimum and failing to weigh health problems.

The Crown conceded the unconstitutionality of the minimum but argued the sentence was fit.

The Court of Appeal upheld the 22-month sentence, finding it appropriate given the nature and volume of the material, and that health issues were considered.

However, on consent, the court allowed the appeal to substitute a 20-year Sex Offender Information Registration Act (SOIRA) registration for the lifetime order, applying the Supreme Court of Canada's decision in R. v. Ndhlovu.

The accused pleaded guilty to four serious offences: making child pornography, possessing child pornography, sexual assault, and counselling a person under 16 to touch her with an object.

The offences involved her very young son and were discovered through international cooperation between American and Canadian authorities.

The Crown sought a long-term offender designation and a sentence of six to eight years.

The defence sought a five-year sentence with no long-term offender order.

The court imposed a six-year sentence (apportioned as 3.5 years for sexual assault concurrent with 3.5 years for invitation to sexual touching, 2.5 years consecutive for making child pornography, and 2 years concurrent for possession of child pornography) and declined to impose a long-term offender designation, finding the accused posed a low risk of reoffending based on psychiatric evidence.

The accused pleaded guilty to one count of criminal harassment contrary to section 264 of the Criminal Code for non-consensually distributing intimate images of the complainant on a pornographic website.

The Crown sought a suspended sentence with 12 months probation, while the defence sought an absolute discharge.

The court found the offence to be serious given the prevalence of non-consensual sexting, the breach of trust, the vulnerability of the victim, and the accused's degree of responsibility.

However, the court considered the accused's exemplary character, rehabilitation efforts, remorse, guilty plea, and the collateral consequences already suffered.

The court imposed a suspended sentence with 12 months probation, no contact with the complainant, and restrictions on possessing intimate images.