R. v. Rule, 2023 ONCA 31

WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community.

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20230117 DOCKET: C69544

MacPherson, Pardu and Coroza JJ.A.

BETWEEN

His Majesty the King Respondent

and

Arthur R.C. Rule Appellant

Counsel: Fredrick Schumann and Yadesha Satheaswaran, for the appellant Lisa Henderson and Michael Perlin, for the respondent

Heard: January 13, 2023

On appeal from the sentence imposed on May 4, 2021 by Justice Evelyn J. Baxter of the Ontario Court of Justice.

Reasons for Decision

1The appellant submits that the trial judge erred in imposing a 22-month jail sentence for accessing and possession of child pornography. He asks this court to substitute a conditional sentence.

2The appellant argues that the trial judge erred in two respects:

1. Ruling out a conditional sentence and in considering the unconstitutional mandatory minimum sentence.
2. Failing to meaningfully give weight to the appellant’s health problems.

3The Crown concedes that under the current state of the law, the Crown has no reasonable argument to support the constitutionality of a one-year minimum sentence for accessing child pornography but submits that in any event, the sentencing judge concluded that she was going to impose a sentence in excess of the minimum and also concluded that a conditional sentence was not appropriate. The Crown argues the sentence imposed was lenient because of the appellant’s health problems and that this court should not alter the sentence imposed, which the Crown contends was entirely fit.

4The appellant was sentenced on May 4, 2021, when he was 70 years old. He is a retired schoolteacher. He had a vast collection of child pornography. Police categorized 22,429 images and 204 videos and determined they met the definition of child pornography. There were an additional 92,984 images which were not categorized by police, but the Crown indicated that a portion of these also constituted child pornography.

5Approximately two thirds of the materials focused on the genital regions of the children depicted. The remaining one third showed children engaged in graphic sexual activity including vaginal and anal penetration by male penises, objects and digits. There were pictures of babies in diapers and the children appeared to range from one to 15 years of age. The trial judge described the images as “disgusting and heartbreaking”, and that the “utter defilement and destruction of these innocent lives cannot be overstated.”

6Dr. Klassen described the appellant as afflicted with heterosexual hebephilia, meaning his main interest is girls between the ages of 9 and 13. He has been viewing images like these since he was 60 years old, almost on a daily basis over seven years. Dr. Klassen indicated that these sexual preferences are immutable.

7Three of the children depicted were identified and provided victim impact statements describing the horrors they have experienced as a result of circulation of the images on the Internet. There was however no indication the appellant produced or circulated any of the images found in his possession.

8We are satisfied that the sentencing judge appropriately considered the appellant’s health challenges. Some of the issues that afflicted him at the time of sentencing have since been resolved. We are satisfied that having regard to the nature of the offence, the size of the collection, the duration of possession and frequency of examination of the images, it was appropriate for the sentencing judge to rule out a conditional sentence which would have been inconsistent with the fundamental purposes and principles of sentencing, despite the appellant’s health problems: see R. v. McCaw, 2023 ONCA 8, at paras. 28-29; R. v. M.M., 2022 ONCA 441, at para. 15. The evidence does not establish that his medical conditions could not be treated in a custodial institution.

9The sentencing judge was correct to conclude that denunciation and deterrence were of primary importance. There were real victims here; these were not imaginary representations such as cartoons, or paintings. As this court observed in R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, at para. 22, those who view and amass large amounts of child pornography participate in the abuse of the children portrayed.

10In our view, a 22-month sentence is fit and appropriate and we see no basis to alter that sentence.

11We do allow the appeal in one respect, on consent. The sentencing judge made an order under ss. 490.012(1) and 490.013(2.1) of the Criminal Code, R.S.C. 1985, c. C-46, for lifetime registration in the national sex offender registry created under the Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”). The former Criminal Code provision mandates registration upon conviction of a designated sexual offence; the latter mandates lifetime registration upon conviction of more than one such offence, as in this instance. In R. v. Ndhlovu, 2022 SCC 38, 474 D.L.R. (4th) 389, the Supreme Court of Canada declared that ss. 490.012 and 490.013(2.1) were unconstitutional. The declaration in respect of the former was suspended for one year and applies prospectively; the declaration of invalidity regarding the latter was granted with immediate effect and applies retroactively: Ndhlovu, at para. 143. The Supreme Court suggested that the appropriate remedy for persons subjected to a mandatory lifetime order under s. 490.013(2.1) was to seek a s. 24(1) Charter remedy to change the length of their registration: Ndhlovu, at para. 142. Here the Ontario Crown waives the need for service of a Notice of Constitutional Question. The federal Crown has indicated that they are content that this court deal with the remedy here and has no intention of intervening.

12The appellant and the Crown agree that the duration of the order mandated here by s. 490.013(2) of the Criminal Code is twenty years and asks this court to allow the appeal to substitute twenty years for the lifetime SOIRA order and we so order as a Charter remedy pursuant to s. 24(1).

13The appeal is otherwise dismissed.