R. v. Foley, 2013 ONCJ 26

JUDGMENT – SENTENCE

Ontario Court of Justice

Her Majesty The Queen

and

John Foley

Court Information

Counsel:

• Ms. E.E. Evans, for the Crown
• Mr. D.W. Johnson, Q.C., for Mr. John Foley

Judge: Renaud, J.

Date: January 24, 2013

1) A Review of the Accusation and of the Offender's Situation

a) The Nature of the Accusation

1Mr. John Foley was charged with two counts of possession of child pornography and one count of accessing such material, prosecuted by indictment, contrary to s. 163.1 of the Criminal Code. He entered a relatively early guilty plea, having regard to the need for disclosure and pre-trial conferences in such cases. To be precise, the charge read as follows: "... between the 7th of January 2011 to the 8th of February 2011 ... unlawfully did have in his possession child pornography, to wit, computer graphic images, contrary to s. 163.1(4) of the Criminal Code.

b) The Nature of the Child Pornography in Question

2The police investigation revealed that on January 7, 2011, Mr. Foley obtained a number of electronic files containing, at least in part if not wholly in each instance, child pornography. The investigator reported, and this was not contested, that Mr. Foley eventually had access to as many as 616 files and he thus possessed images of quite young females, of preteen young persons, and of adolescents, involved in and subjected to a variety of quite exploitative and damaging sexual violence, it being understood that all sexual violence is inherently damaging and exploitative. Some of the images focused on a variety of young girls who were made to expose themselves. Suffice it to say that on a crude scale of harm, these were the least grave images. Counsel and I were provided with a sampling of the images involving far graver sexual violence and they included, regrettably, the usual types of child pornography in which children are depicted whilst being raped, including vaginal penetration, penetration of the anus, and also of the mouth. As noted, the range of ages embraces quite young babies and appeared to depict exploitation and harm mostly to children from 6 to 12 years of age but also included situations in which more than one male is harming the victim at the same time whilst other images depict bonding, or two children being made to touch each other.

3Mr. Foley was cooperative with the police officer at the time of the execution of a search warrant, facilitating the work of the police, and noted at the time of his arrest that he had accessed and downloaded the child pornography "out of curiosity and not for sexual purposes."

4Although it is difficult to compare cases, I find that the material possessed by Mr. Foley is as grave and vile as what is typically found, but he was not in possession of a particularly significant number of files or images, and in terms of the size only of his "collection", it tended towards the middle of the spectrum, all other aggravating factors being equal, and leaving aside the mitigating information which is not relevant to the objective nature and size of the child pornography in question.

c) The Legislative Sentence Range at the Relevant Time

5Counsel agreed that Mr. Foley must be sentenced to a jail term of at least 45 days and that the maximum term of imprisonment, in light of the Crown's election, is one of 5 years.

d) The Offender Possesses an American Criminal Record Which is Unrelated

6The two most important elements in mitigation in this case are the guilty plea, discussed below, and the fact that offender is a first offender in terms of such matters. By reason of the fact that the only prior crime was apparently disclosed by Mr. Foley and refers to felony theft in Florida in 1988, I elect to assign very little weight to this prior crime as he completed his lengthy community-based sentence successfully, including restitution.

e) The Guilty Plea

7The most important mitigating factor in this case is the recording of a guilty plea by an offender who assumed responsibility for his wrongdoing from the outset. Accordingly, great mitigating weight is assigned to this quite favourable element which is demonstrative of remorse and which suggests clearly a present and future resolve to act responsibly. That having been said, Mr. Foley did express regret not just for his crime but for the negative consequences which have resulted from his very public arrest in a small community and subsequent media coverage. I need not review the many well known cases justifying leniency as a result of his guilty plea.

f) The Positive Pre-Sentence Report

8A further mitigating factor of note is the positive pre-sentence report. Overall, the report of Ms. Lynda Bouchard, a quite experienced probation officer, may be summarized by repeating the information found at page 6 under the rubric "Recommendations": "Based on the above information, namely the offender's willingness to follow any recommendations set out by his psychiatrist and the steps he has taken thus far to obtain a better understanding of his behaviour, we believe the offender to be a manageable risk in the community ..." Mr. Foley has found new employment and his level of familial and community support is adequate, in the circumstances. A lengthy period of probation is required, as sought by the Crown and not vigorously opposed by the defence, and the offender may seek a variation and eventually a termination of the order of probation as his treatment is pursued and success is achieved.

9Again, it is not necessary to repeat here the many cases that underscore that a favourable pre-sentence report is highly advantageous in the sentencing equation and assists the offender to request an individualized and lenient sentence.

g) Dr. P. Fedoroff's Report and the Relatively Low Risk of Further Offending Conduct

10Dr. Paul Fedoroff, a very experienced psychiatrist and the Director of the Sexual Behaviours Clinic associated with the Faculty of Medicine of the University of Ottawa provided a well-reasoned, insightful and detailed 13 page report dated February 27, 2012, which sets out the results and the nature of a number of quite useful and invasive tests and assessments seeking to address the risk of further offending conduct. The report includes a number of comments made by Mr. Foley to the effect that he was never sexually aroused by images of children or by children themselves. In the final analysis, Dr. Fedoroff concluded that though he had not reviewed the materials seized by the police, which must be taken into account in assessing the degree and level of risk of future offending conduct which the testing otherwise disclosed, he was of the view that "... He presents as a person who earnestly accepts he did wrong and wishes to ensure that he never reoffends for the sake of his family" and "... Mr. Foley likely has a low risk of reoffending..."

2) A Review of the Legislation and the Case Law Relevant to Sentencing for the Offence of Possession of Child Pornography

a) The Preamble to s. 718 of the Criminal Code of Canada: The Emphasis on "a Just, Peaceful and Safe Society"

11In approaching this difficult sentencing case, I thought it best to begin by reviewing the preamble to s. 718 of the Criminal Code, to then address each of the codified sentencing objectives found at clauses a) to f). This will serve to introduce a number of the relevant societal goals that the sanction to be selected must seek to advance. It must be understood that certain of the elements of the discussion which follows are no longer as relevant in light of the recent amendments to the Criminal Code, notably the fact that a greater minimal jail term is mandated. Indeed, had Mr. Foley committed this offence on today's date, the minimum jail term would be one of six months. That being said, his sentence reflects only the law as it stood at the time of the offending conduct in early 2011.

12S. 718 is the section of the Code often described as the means whereby Parliament has expressed its intent or "purpose" in sentencing, referred to as "les objectifs de la peine" in French. In sum, the fundamental expression of purpose may be summarized aptly by stating: Parliament wishes the Courts to ensure a safe Canadian society.

13Indeed, the preamble to section 718 of the Criminal Code reads as follows:

Purpose and Principles of Sentencing

Purpose

The fundamental purpose of sentencing is 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:

14For ease of reference, I have listed below the objectives listed at clauses a) to f) of s. 718:

• a) to denounce 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;
• f) to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community.

15Evidently, the foregoing enumeration of the codified objectives enshrines in a formal way the expression by Parliament of the fundamental purpose of sentencing. More to the point, it is the first attempt by Parliament to consign in a systematic fashion the expression of a legislative design and thus these words are to be assigned signal importance. Accordingly, the words to be emphasized are obviously those addressing the objective of achieving "a just, peaceful and safe society".

16Notwithstanding the patent importance of the introduction on September 3, 1996, of this Parliamentary resolve to assist sentencing Courts, the preamble is not often referred to in the sentencing calculus itself, save when it is recited to ensure context to the enumeration of the sentencing objectives which are typically included in a sentencing judgment. A rare exception is seen in R. v. Rogers, 2008 NLCA 19. The judgment reminds us at para. 10 of the obvious objective of protecting the public: "Underlying these principles [found at s. 718.1 and s. 718.2 of the Criminal Code] are the objectives of protecting the public, implicit in s. 718's reference to maintenance of a just, peaceful and safe society', and promoting respect for the law by denunciation of unlawful conduct." Thus, the protection of the public is at the forefront of the concerns of the legislators and this implicit objective is made manifest in light of the preamble's reference to a "just, peaceful and safe society".

17In this vein, it will be of assistance to quote from a further case which also represents an exceptional contribution to our understanding of the wishes of Parliament as we find a direct reference to the preamble in the sentencing judgment. Indeed, para. 43 of R. v. McArthur, 2004 CanLII 8759 (ON CA) reads:

43Section 718 of the Criminal Code identifies the fundamental purpose of sentencing as being:

To contribute, along with crime prevention initiatives, to respect for the law and maintenance of a just, peaceful and safe society by imposing just sanctions...

18The Court of Appeal went on to add the following observations: "[44] That purpose is achieved by blending the various objectives of sentencing identified in s. 718. The proper blending of those objectives depends on the nature of the offence and the nature of the offender. In this case, the objectives of denunciation and specific deterrence must dominate almost to the exclusion of the other objectives recognized in s. 718."

b) Denunciation at Clause 718(a) of the Code and Child Pornography

19The first objective found in s. 718 of the Criminal Code is consigned at clause (a) and refers to denouncing unlawful conduct, within the context of the general objective of achieving a "just, peaceful and safe society". Indeed, the objective of denunciation may best be understood in these terms: by sentencing offenders to various sanctions, ranging from an absolute discharge to imprisonment for life, sentencing courts seek to make plain to all the members of the community the nature of unlawful conduct which is inimical to achieving a "just, peaceful and safe society". At bottom, this objective embraces and fosters the communication of our fundamental values to all of the members of the community and seeks in particular to demonstrate how unlawful conduct undermines our collective aspiration to fulfilling lives free of fear from offences, especially violent ones. In addition, the Courts seek to denounce conduct which assails our collective hopes for a future in which justice, peace and safety are of paramount importance.

i) Denunciation Defined: Communicating Values

20In the report of R. v. Latimer, 2001 SCC 1, para. 86 guides us in the following respect:

86Finally, this sentence is consistent with a number of valid penological goals and sentencing principles. Although we would agree that in this case the sentencing principles of rehabilitation, specific deterrence and protection are not triggered for consideration, we are mindful of the important role that the mandatory minimum sentence plays in denouncing murder. Denunciation of unlawful conduct is one of the objectives of sentencing recognized in s. 718 of the Criminal Code. As noted by the Court in R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 81:

81The objective of denunciation mandates that a sentence should communicate society's condemnation of that particular offender's conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law.

Furthermore, denunciation becomes much more important in the consideration of sentencing in cases where there is a high degree of planning and premeditation, and where the offence and its consequences are highly publicized, [so that] like-minded individuals may well be deterred by severe sentences': R. v. Mulvahill and Snelgrove (1993), 21 B.C.A.C. 296, at p. 300. This is particularly so where the victim is a vulnerable person with respect to age, disability, or other similar factors.

21When denunciation is viewed as an exercise in communication, one of the lessons that emerge is that a cardinal element of sentencing that is fundamental to the preservation of the Canadian community is the continued development of an unwavering understanding of what actions are positive in nature and which are inimical to the public weal. As stated earlier, sentencing must advance the societal goal of promoting "a just, peaceful and safe society". In this sense, judges are instructed to address the imperative need to denounce emerging threats to the well-being of the community and, as well, to alert the whole of the citizenry to the fact of new threats to the safety of all and in particular to the safety of many vulnerable potential victims. In this respect, R. v. Folino, 2005 CanLII 40543 (ON CA), 77 O.R. (3d) 641 (C.A.) includes these fundamental remarks on the nature of the sentencing exercise in cases of internet luring, as consigned at para. 25:

25...I wish to first make it clear that I fully agree with the sentencing judge that the offence of child luring must be dealt with seriously by the courts. The social policy underlying the enactment of this offence is clear. Many Canadian families have home computers with Internet access. Children are frequent users of the Internet. Children, as vulnerable members of our society, must be safeguarded against predators who abuse the Internet to lure children into situations where they can be sexually exploited and abused. In most circumstances involving the offence of child luring, the sentencing goals of denunciation and deterrence will require a sentence of institutional incarceration. Indeed, it will only be in the rarest of cases that a conditional sentence will be appropriate in a case involving this offence. In my view, however, this is one of those rare cases.

22In this respect, it will be of assistance as well to recall a passage from the judgment of the Supreme Court of Canada in R. v. M. (C.A.), 1996 CanLII 230 (SCC), 46 C.R. (4th) 269 (S.C.C.), at para. 81: "Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation [...]" Subsequently, the Court added these passages, also found at para. 81:

81[...] As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App. R. 74, at p. 77: 'society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass'. The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code. [Emphasis added]

23Turning next to the case of R. v. Morrisey, 2000 SCC 39, 36 C.R. (5th) 85, we are instructed at para. 46 as to the question of the constitutionality of a minimum sentence of four years provided by s. 220 (a) of the Criminal Code: "[...] I am convinced that this legislation survives constitutional scrutiny even if the sentence pursues sentencing principles of general deterrence, denunciation and retributive justice more than the principles of rehabilitation and specific deterrence [...]" [Emphasis added]

24More to the point of the present discussion in the context of possession of child pornography, para. 47 reads:

47Further, this minimum sentence serves the principle of denunciation, which Lamer C.J. described in M. (C.A.), supra, at para. 81, as being "a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values". One of the most fundamental of our basic code of values is respect for life. Although less morally blameworthy than murder, criminal negligence causing death is still morally culpable behaviour that warrants a response by Parliament dictating that wanton or reckless disregard for the life and safety of others is simply not acceptable. [Emphasis added]

ii) Denunciation Emphasized by a Minimal Jail Term

25Leaving aside these general comments in order to focus attention to the specific offence at Bar, it must be understood that the reach of denunciation in such prosecutions has been enhanced significantly by the imposition of a mandatory jail term of either 45 or 14 days, in accordance with the election of the prosecution (it being understood that Parliament has spoken again more recently and increased these terms quite dramatically).

26The recent judgment in R. v. Thurairajah, 2008 ONCA 91 discusses mandatory minimal jail periods in the following terms by Justice Doherty, at para. 26:

26Some criminal justice systems seek to achieve justice in sentencing by the extensive use of mandatory minimum sentences coupled with tightly calculated sentencing grids that all but dictate the sentence to be imposed by the trial judge in any given case. Historically, Canadian criminal law has taken a very different road to justice in sentencing. For the vast majority of offences, Parliament provides no minimum sentence and a broad spectrum of potential dispositions. Trial judges are given a very wide discretion to determine the appropriate disposition in each case. In exercising that discretion, Parliament provides guidance by way of the broadly worded objectives and principles in Part XXIII of the Criminal Code. Trial judges must apply those objectives and principles to the specifics of each case and, in the exercise of their discretion, fashion a sentence that is tailored to the circumstances of the offence and the circumstances of the offender. [Emphasis added]

iii) Discretion in Choosing Any Greater Period of Imprisonment to Further Denunciation

27Notwithstanding the requirement of a minimum jail term, the Court is still required to exercise discretion in the allocation of any greater period of imprisonment, in accordance with the objective of denunciation and all other sentencing objectives, principles, factors and circumstances. The Court in R. v. Thurairajah went on at para. 27 to underscore this "individualization of the sentencing process" by means of the judicial exercise of a broad discretion by trial judges, qualifying it as "the central feature of the sentencing process in Canada." Para. 27 also refers to R. v. Proulx, 2000 SCC 5, 30 C.R. (5th) 1 (S.C.C.), at para. 116 wherein Lamer C.J.C. described the central role of the trial judge in the sentencing process: "There is no easy test or formula that the judge can apply in weighing these factors. Much will depend on the good judgment and wisdom of sentencing judges, whom Parliament vested with considerable discretion in making these determinations."

28All in all, denunciation will be emphasized in certain cases by means of actual imprisonment, even if the Code does not command such a result. In this regard, note para. 43 of R. v. Thurairajah, 2008 ONCA 91:

43The aggravating circumstances surrounding this offence were such that the fundamental purpose of sentencing could only be properly served by a disposition that placed a heavy emphasis on general deterrence and particularly denunciation. I recognize that a conditional sentence can in some circumstances adequately address these objectives, particularly where the conditions imposed have a significant punitive element: Proulx, supra, at para. 41; R. v. Ijam, supra, 2007 ONCA 597 (CanLII), [2007] O.J. No. 3395 at p. 94. However, there will be circumstances in which the demands of denunciation and/or general deterrence are so pressing that incarceration is the only suitable disposition: Proulx, supra, at para. 106; Wells, supra, at para. 34.; R. v. Killam (1999), 1999 CanLII 2489 (ON CA), 29 C.R. (5th) 147 at 151 (Ont. C.A.). [Emphasis added]

29Of interest, the gravity of the offender's conduct in the above-noted case resulted in the conditional sentence being set aside, and a lengthy reformatory term selected instead, which would have been served within a penitentiary but for his rehabilitative potential.

iv) Exercising Discretion in Applying Denunciation: The Clash of Competing Objectives

30Turning then to the central fact that there will often be a clash of principles prior to the selection of the factor or factors set out at s. 718 that will be in ascendancy in the case at Bar, the Court in R. v. Thurairajah remarked:

28The sometimes competing principles that must be weighed by the trial judge in the exercise of his or her sentencing discretion can give rise to difficult problems for trial judges. This trial judge was faced with just such a problem. On the one hand, the circumstances of this offence cried out for a significant jail term. On the other hand, the respondent's personal circumstances strongly suggested that incarceration was unnecessary. The trial judge tried to balance these competing concerns by imposing a conditional sentence with punitive terms that included partial house arrest and a curfew. [Emphasis added]

v) Sentencing as an Exercise in Discretion and Denunciation

31Indeed, para. 29 of R. v. Thurairajah goes on to make plain that sentencing is a "profoundly subjective process" and the sentence ultimately imposed will reflect a multiplicity of considerations, some of which are beyond the reach of appellate review [...]" while para. 30 adds the important observation: "Strong appellate deference to the sentence imposed at trial also reflects the reality that in many cases there is no single correct sentence, but rather a range of appropriate sentences from which the trial judge must select one [...]"

32Quite recently, para. 18 of R. v. B. (R.), 2013 ONCA 36, reminded us of the guidance on this subject found in R. v. Hamilton, 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (C.A.), at para. 87: "Sentencing is a very human process. Most attempts to describe the proper judicial approach to sentencing are as close to the actual process as a paint-by-numbers landscape is to the real thing. I begin by recognizing, as did the trial judge, that the fixing of a fit sentence is the product of the combined effects of the circumstances of the specific offence with the unique attributes of the specific offender."

vi) Grading Denunciation: The Deeming Clause at s. 718.01

33In addition to directing sentencing Courts to mark denunciation of possession of child pornography by means of a mandatory minimal jail sentence, Parliament has directed by means of s. 718.01 of the Criminal Code that primary consideration must be given to the objectives of denunciation and deterrence in a case in which an offender abused a person under the age of eighteen. In other words, the injunction by our lawmakers found at s. 718.01 is mandatory. The language of s. 718.01 does evidence a strong condemnation of the ill-treatment of minors who are typically far less able to defend themselves and such vulnerability must be offset by means of a denunciatory message in sentencing, all other things being equal.

34In my view, with great respect to those who hold the contrary view, the mere fact of possessing (and of accessing) child pornography is to engage in the type of inimical conduct which s. 718.01 of the Code seeks to eliminate. The babies, toddlers, young children and adolescents whose victimization is captured forever by these images and technology are further harmed with each viewing and act of acquisition, leaving aside transmission which is not in issue in this case.

vii) Denunciation: An Objective and a Principle of Sentencing

35As noted, denunciation is an objective in sentencing as made plain by the very terms of s. 718 (a) of the Criminal Code. Nevertheless, denunciation is also widely understood and applied as a principle of sentencing, an expression which arises at s. 718.1 and s. 718.2 of the Criminal Code. In effect, as an objective, it is synonymous with a purpose of sentencing and it is also commonly perceived as a principle of sentencing even though this would fail in a strict sense to comply with the language of the legislation. No analytical difficulties arise in such circumstances.

36By way of limited example, R. v. Wust, 2000 SCC 18, [2000] S.C.J. No. 19, 32 C.R. (5th) 58 guides us as to a synonymous meaning of denunciation at para. 23, in the sense of the purpose of the legislation: "[...] In deciding on the appropriate sentence, the court is directed by Part XXIII of the Code to consider various purposes and principles of sentencing, such as denunciation, general and specific deterrence, public safety, rehabilitation, restoration, proportionality, disparity, totality and restraint, and to take into account both aggravating and mitigating factors [...]." [Emphasis added]

viii) Denunciation and Non-Custodial Sanctions

37I wish to be understood to have examined this issue by reason of the fact that I was called upon by the prosecution to decide whether an additional period of confinement was required in addition to the mandatory jail period. Thus, the cases examined below are relevant, though they address chiefly the issue of the fitness of a conditional sentence of imprisonment, which was not an available sanction in this instance, whether alone or as part of a blended sentence.

38The case of R. v. Wells, 2000 SCC 10, 30 C.R. (5th) 254, provides quite valuable guidance on the question of achieving the objective of denunciation in the context of non-custodial sanctions. A first passage of interest is found at para. 25:

25Section 718.2 (e) of the Criminal Code provides that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered, with particular attention to the circumstances of aboriginal offenders. As a general matter, this appeal raises the issue of whether a non-custodial sentence is reasonable, to use the language of s. 718.2(e), in circumstances where the paramount sentencing objectives are denunciation and deterrence. More specifically, this appeal must determine whether the trial judge properly applied s. 718.2 (e) when sentencing the appellant. [Emphasis added]

39The Court concluded, at para. 35:

35Therefore, depending on the severity of the conditions imposed, a conditional sentence may be reasonable in circumstances where deterrence and denunciation are paramount considerations. Ultimately, however, the determination of the availability of a conditional sentence depends upon the sentencing judge's assessment of the specific circumstances of the case, including a consideration of the aggravating factors, the nature of the offence, the community context, and the availability of conditions which have the capacity to properly reflect society's condemnation." [Emphasis added]

40In reaching that conclusion, the Supreme Court of Canada earlier commented at para. 26 of R. v. Wells on the interplay as between denunciation and non-custodial sanctions. In fact, the paragraph records: "[...] given that a conditional sentence is possible where the sentencing objectives are denunciation and deterrence [...]"

41Thereafter, the Court quoted extensively at para. 31 from Chief Justice Lamer's judgment in R. v. Proulx, 2000 SCC 5, 30 C.R. (5th) 1 (S.C.C.), to support the view that "[...] a conditional sentence can achieve both punitive and restorative objectives [...]" and pursued this analysis at para. 32 by noting "[...] Lamer C.J. indicated that the objectives of deterrence and denunciation could be well served with a conditional sentence. Indeed, he noted that certain conditions can create more onerous circumstances than those associated with incarceration (at para. 105)."

42Further, the Court in R. v. Wells, per Iacobucci J., added at para. 33:

33The amount of denunciation and deterrence provided by a conditional sentence varies depending on the nature of the conditions imposed and the duration of the sentence. Since the imposition of any sentence is determined on an individual basis, each conditional sentence needs to be crafted with attention to the particular circumstances of the offence, offender, and the community in which the offence took place (see M. (C.A.), supra, per Lamer C.J., at para. 92). Consequently, conditions will vary according to these factors with it being generally true that "the more serious the offence and the greater the need for denunciation, the longer and more onerous the conditional sentence should be" (Proulx, at para. 106). [Emphasis added]

43Of final interest for present purposes is the reference to para. 106 and following of Chief Justice Lamer's reasons in R. v. Proulx, which follows as consigned at para. 34:

34Nevertheless, Lamer C.J. pointed out that "there may be certain circumstances in which the need for denunciation [or deterrence] is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct" (Proulx, at para. 106). He further stated (at paras. 114 and 116):

This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence. Conversely, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of diminished importance, depending on the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to be served. [Emphasis added]

ix) Denunciation and s. 718.2(e)

44The interplay as between the objective of denunciation and s. 718.2 (e) of the Criminal Code must also be considered in selecting a fit and proper sanction. Although Mr. Foley is not a member of the First Nations, the principle of restraint on the resort to imprisonment is found in that disposition, and reinforces the same principle of restraint found in s. 718.2 (d).

45In this respect, I note para. 40 and para. 42 of R. v. Wells as they discuss in general terms the need for sentence severity in direct proportion to the severity of the harm occasioned to the victim and to the community. As will be seen, in certain instances but not all, an individualized approach will not be barred by means of this analytical approach.

42Notwithstanding what may well be different approaches to sentencing as between aboriginal and non-aboriginal conceptions of sentencing, it is reasonable to assume that for some aboriginal offenders, and depending upon the nature of the offence, the goals of denunciation and deterrence are fundamentally relevant to the offender's community. As held in Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 at para. 79, to the extent that generalizations may be made, the more violent and serious the offence, the more likely as a practical matter that the appropriate sentence will not differ as between aboriginal and non-aboriginal offenders, given that in these circumstances, the goals of denunciation and deterrence are accorded increasing significance. [Emphasis added]

46Ultimately, para. 44 reinforced this instruction in these words:

44Let me emphasize that s. 718.2 (e) requires a different methodology for assessing a fit sentence for an aboriginal offender; it does not mandate, necessarily, a different result. Section 718.2 (e) does not alter the fundamental duty of the sentencing judge to impose a sentence that is fit for the offence and the offender, and this instruction applies, of course, to non-Aboriginal offenders as well. Furthermore, in Gladue, as mentioned, the Court stressed that the application of s. 718.2 (e) does not mean that aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice and less weight to goals such as deterrence, denunciation, and separation (at para. 78). As a result, it will generally be the case, as a practical matter, that particularly violent and serious offences will result in imprisonment for aboriginal offenders as often as for non-aboriginal offenders (Gladue, at para. 33). [Emphasis added]

47R. v. Fice, 2005 SCC 32, 28 C.R. (6th) 201 (S.C.C.) is also of assistance in pursuing this analysis touching upon the need for severity in corresponding degrees to the harm or violence associated with an offence, and thus of the potential for denunciation to be applied even without a jail sentence.

x) Denouncing Child Pornography: A Summary

48Based on the foregoing, the denunciation of child pornography offences may be viewed as an attempt to prevent degrading and exploitative conduct which not only harms children but defiles the goals of a "just, peaceful and safe society". A first example, unfortunately one of far too many such prosecutions, is taken from R. v. E.O., 2003 CanLII 2017 (ON CA), [2003] O.J. No. 563, 169 O.A.C. 110 (C.A.). The Court of Appeal upheld the 18-month term, together with a concurrent jail term of six months for breach of probation, followed by three years' probation. In so doing, it advanced the comments that are set out below, at para. 7:

7Possession of child pornography is a crime of enormous gravity, both for the affected victims and for society as a whole. For that reason, the courts have repeatedly recognized that the most important sentencing principles in cases involving child pornography are general deterrence and denunciation. Further, the offence of possession of child pornography requires the imposition of sentences which denounce the morally reprehensible nature of the crime, deters others from the commission of the offence, and reflects the gravity of the offence: see R. v. Sharpe, 2001 SCC 2, [2001] S.C.J. No. 3, 150 C.C.C. (3d) 321 (SCC) and R. v. Stroempl, 1995 CanLII 2283 (ON CA), [1995] O.J. No. 2772, 105 C.C.C. (3d) 187 (Ont. C.A.). In this case [...] the record of the appellant disclosed actual abuse of children. His accumulation of violent pornographic material involving young children, and the timing of his access to such material, support the trial judge's conclusion that the appellant poses a danger to the community ... [Emphasis supplied]

49At para. 12, the Court remarked that the record of actual violence towards children included sexual violence towards a daughter and a boy, both under 5, who were forced to fellate him and a later conviction for abducting his 9-year old niece.

50R. v. Kim, 2004 CanLII 32118 (ON CA), [2004] O.J. No. 119 (C.A.) is also apposite as it provides additional guidance on the sentencing principles to be applied in the case of possession of child pornography and distribution of child pornography. The offender pleaded guilty to both offences, and admitted to having distributed pornographic material in exchange for more pornographic material, basically on a two-for-one' exchange: he had over 12,000 images on his server and received between 5,600 and 6,400 images over an eight-day period while sending out 2,800 to 3,200 images. The Court of Appeal remarked as follows at para. 2:

2The imposition of a non-custodial sentence in this case does not address the gravity of the offence or the need for denunciation and deterrence. The decision in R. v. Sharpe, 2001 SCC 2, 150 C.C.C. (3d) 321 (SCC) explicitly recognized the link between the possession and distribution of child pornography and the harm occasioned by the sexual abuse and exploitation of children. The Supreme Court accepted that child pornography may fuel cognitive distortions normalizing this harmful conduct. The overwhelming amount of child pornography seized, the ages of the children involved, the nature of the acts in which they were involved and the respondent's interest in the material, distinguish this case from R. v. Cohen and R. v. Weber where conditional sentences were imposed. In R. v. Lisk, 1998 CanLII 4737 (ON CA), [1998] O.J. No. 1456, this court stated, We agree that the principles of deterrence and denunciation could only be adequately reflected in a sentence involving incarceration.' As in Lisk, this offender distributed pornographic material in exchange for more pornographic material ... [Emphasis supplied]

51Thus, despite the fact that the respondent was a youthful first offender with no prior record, this was an inappropriate case for a conditional sentence. It called instead for a substantial reformatory sentence. However, in view of the fact that the offender has already served seven and a half months of his conditional sentence and that he has, with some difficulty, only recently obtained an appointment for counselling at a psychiatric facility, the Court was reluctant to interfere and impose a period of incarceration at this stage, and dismissed the Crown's otherwise meritorious sentence appeal. Refer to para. 3. Noteworthy as well is the case of R. v. Lea, [2005] O.J. No. 2665 (C.A.). The Court of Appeal upheld a jail term in the case of possession of a large quantity of child pornography, seemingly approving the emphasis placed by the trial judge on the principles of denunciation and deterrence, notwithstanding the guilty plea, the offender's remorse and the risk that incarceration could be counter-productive from the perspective of rehabilitation.

52Notwithstanding the foregoing, it must not be assumed that the reach of denunciation is inconsistent with a sentence other than one of lengthy imprisonment. As demonstrated in the case of R. v. Cohen, 2001 CanLII 3862 (ON CA), [2001] O.J. No. 1606, 144 O.A.C. 340 (C.A.) [referred to earlier in R. v. Kim, 2004 CanLII 32118 (ON CA), [2004] O.J. No. 119 (C.A.) at para. 2] involving an offender convicted of several counts of distribution and possession of child pornography, the Court observed at para. 15: "We share the concerns expressed by the trial judge about the need for a sentence that clearly denounces the distribution of child pornography and deters those who might be tempted to engage in its dissemination. However, meeting those concerns should not exclude consideration of other relevant sentencing factors." It found the sentence excessive and intervened in light of the intervening guidance from R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, to the effect that "conditional sentences are punitive sanctions capable of achieving the objectives of denunciation and deterrence and that they may be considered even where a sentence meeting those objectives is required." Refer to para. 16.

53Further guidance on the application of the objective of denunciation in selecting the range of sentencing for distribution of child pornography and possession of child pornography (prior to the recent legislative changes) is found in R. v. Weber, 2003 CanLII 28579 (ON CA), [2003] O.J. No. 3306 (C.A.). The Court of Appeal emphasized that both Mr. Weber and Mr. Cohen "... engaged in despicable activity. Because they operated through the Internet, the scope for the dissemination of the pornographic material was unbounded once it was sent out to one person ..." Refer to para. 16. In the final analysis, the Court of Appeal's guidance may be summarized by quoting para. 18: "As this court stated in Cohen, the offences of possession and dissemination of child pornography are very serious and require a sentence which clearly denunciates the conduct and deters others. As the court also stated in that case, a conditional sentence with strict house arrest conditions can adequately serve the objectives of general deterrence and denunciation and is appropriate for certain offenders." [Emphasis supplied]

54I pause to note that the more contemporary case law serves to underline that certain of these favourable comments are less apt in light of the changes to the legislation, but I do wish to be understood to find that all sentencing principles continue to be apposite, including rehabilitation.

55In the final analysis, and seeking to be as precise as possible, denunciation is not limited to a prospective function in sentencing as is served by the objective of deterrence which will be reviewed next, but serves a contemporary purpose of heightening our respect for the laws and institutions of our country, in an abstract sense, and of respect for the personal autonomy and integrity of all those who share our "just, peaceful and safe society" in a concrete sense. It is seeking to foster an expressive purpose, a communicative value that reinforces our basic socialization and education about respect for others.

c) Deterrence at Clause 718(b) of the Code and Child Pornography

56Deterrence is given legislative expression at clause (b) of s. 718 of the Criminal Code, and it is found immediately after clause (a) addressing denunciation. Nevertheless, it will be of assistance to begin with a reference to the pre-1996 case law. R. v. Lyons, 61 C.R. (3rd) 1, includes these observations at para. 26:

26[...] The imposition of a sentence which "is partly punitive but is mainly imposed for the protection of the public" (Re Moore and the Queen (1984), 1984 CanLII 2132 (ON SC), 10 C.C.C. (3d) 306 (Ont. H.C.)) seems to me to accord with the fundamental purpose of the criminal law generally, and of sentencing in particular, namely, the protection of society. In a rational system of sentencing, the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the nature of the crime and the circumstances of the offender. No one would suggest that any of these functional considerations should be excluded from the legitimate purview of legislative or judicial decisions regarding sentencing. [Emphasis added]

i) Deterrence and Denunciation: How to Distinguish

57The case law indicates that the objectives of deterrence and denunciation go hand in glove as they both seek to further the prime sentencing objective of ensuring the safety of the community. As noted, denunciation is not limited to a prospective function but serves a contemporary purpose of heightening our respect for the laws and institutions of our country, in an abstract sense, and of respect for the personal autonomy and integrity of all those who share our "just, peaceful and safe society". It is seeking to foster an expressive purpose, a communicative value that reinforces our basic socialization and education about respect for others. On the other hand, deterrence addresses quite concrete (and at times controversial) issues of convincing an offender to desist from further offending while discouraging such unlawful conduct in others. In effect, is often thought that they express both sides of a coin minted to ensure the collective safety of the community. The case of R. v. L.D., [2002] O.J. No. 4695 (C.A.) illustrates quite well the dynamics at play that tend to ally the two objectives but as well, it assists in showing how to distinguish them.

58For present purposes, the important fact is that I have instructed myself not to select a sentence which is more severe by reason only that I have added aggravating weight to both the objectives of denunciation and deterrence without being mindful of the totality principle and the over-lapping of these closely related aims. R. v. Woodward, 2011 ONCA 610, advances guidance on this element of sentencing as follows: "[48] I cannot be certain from reading the trial judge's reasons that she did not use the appellant's efforts at grooming the complainant to increase his punishment on both the luring offence and the sexual assault offence. Assuming she did engage in impermissible double counting, I consider the error to be harmless in the circumstances. At most, it would have warranted a slight reduction in sentence on either the luring count or the sexual assault count. Overall, as I shall explain, the global sentence of six-and-one-half years was within the appropriate sentencing range and I would not disturb it." [Emphasis added]

ii) Specific and General Deterrence

59It will be of assistance to define what is meant by deterrence and, of equal importance, what is not embraced by that expression. Deterrence, as crafted by Parliament at s. 718 (b) of the Criminal Code, is an objective of sentencing which has two components, described as "purposes" by the draughtsperson of the marginal note and as an "objective" by the legislators who approved of the text:

• individual or specific deterrence; and
• general or collective deterrence.

60Stated otherwise, sentencing courts are directed and charged by Parliament to select fit and proper sentences having the dual objective of discouraging further and future wrongdoing by both the offender and by others who might emulate such anti-social behaviour. In this sense, s. 718 (b) of the Criminal Code directs the selection of what might best be described as forward-looking sanctions. After all, nothing can be done to prevent the commission of the offence that has already taken place and, moreover, the fact of an offence having been committed speaks to the relative failure of prior sentences to deter generally and in respect to the precise offender. Nevertheless, I suggest that the objective of deterrence does address the functional goal of preventing further wrongdoing in the case of a specific individual, while furthering the utilitarian goal of discouraging further offending amongst the offender's peers, the so-called group of those would-be individuals wishing to emulate the anti-social behaviour in question.

61It goes without saying that these concerns are quite pressing in the case of possession of child pornography.

iii) Deterrence as Punishment to Discourage Unlawful Acts

62The first quotation is selected from para. 107 of R. v. Proulx, 30 C.R. (5th) (S.C.C.) and serves to highlight the traditional view of the Courts that the unpleasant aspects of sentencing are visited upon the offender to discourage further offending. Note the repeated references to punishment in its various manifestations.

107Incarceration, which is ordinarily a harsher sanction, may provide more deterrence than a conditional sentence. Judges should be wary, however, of placing too much weight on deterrence when choosing between a conditional sentence and incarceration: see Wismayer, supra, at p. 36. The empirical evidence suggests that the deterrent effect of incarceration is uncertain: see generally Sentencing Reform: A Canadian Approach, supra, at pp. 136-37. Moreover, a conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences. There is also the possibility of deterrence through the use of community service orders, including those in which the offender may be obliged to speak to members of the community about the evils of the particular criminal conduct in which he or she engaged, assuming the offender were amenable to such a condition. Nevertheless, there may be circumstances in which the need for deterrence will warrant incarceration. This will depend in part on whether the offence is one in which the effects of incarceration are likely to have a real deterrent effect, as well as on the circumstances of the community in which the offences were committed. [Emphasis added]

63In short, deterrence is viewed first and foremost as an objective which serves to protect the community by inflicting punishment upon offenders with a view to making them wish to avoid further punishment by desisting from the unlawful conduct that resulted in the punishment and, by parity of reasoning, by discouraging others who might be tempted to offend by the fear of being similarly punished.

64Perhaps the best judicial expression of the meaning to be assigned to deterrence is found in the judgment of Justice Charron in R. v. B.W.P.; R. v. B.V.N., 2006 SCC 27, 38 C.R. (6th) 1 (S.C.C.). By reason of the remarkable concision with which Justice Charron reviewed the nature of deterrence, albeit in a different statutory context as the issue involved the Youth Criminal Justice Act, S.C. 2002, c. 1, I have elected to reproduce her instruction from para. 2 at length.

2Deterrence, as a principle of sentencing, refers to the imposition of a sanction for the purpose of discouraging the offender and others from engaging in criminal conduct. When deterrence is aimed at the offender before the court, it is called specific deterrence', when directed at others, general deterrence'. The focus of these appeals is on the latter. General deterrence is intended to work in this way: potential criminals will not engage in criminal activity because of the example provided by the punishment imposed on the offender. [Emphasis added]

iv) Deterrence Results in "Extra" Punishment

65Thus, the definition of the objective of deterrence embraces an inherent element of punishment which serves to further the instrumental goal of discouraging the offender from further unlawful conduct. In addition, it is obvious that in many instances, the Court will impose punishment that is greater than what is strictly required in order to discourage the offender. On the one hand, it is well-nigh impossible to judge such matters accurately given the dynamics of human behaviour and the limitations touching upon our ability to assess fully the unknown elements such as the offender's internal thought process and motivations. On the other, it is an inherent requirement that additional punishment be visited upon the offender if a general discouragement of unlawful conduct is to be achieved.

66As noted by Justice Charron in R. v. B.W.P.; R. v. B.V.N. at para. 2, "[...] When general deterrence is factored in the determination of the sentence, the offender is punished more severely, not because he or she deserves it, but because the court decides to send a message to others who may be inclined to engage in similar criminal activity." Of course, any such additional sanction must respect the fundamental sentencing principle of proportionality which is enshrined at s. 718.1 of the Criminal Code.

v) Does Deterrence Produce Worthwhile Results?

67It is noteworthy that in attempting to define deterrence, Justice Charron went on in R. v. B.W.P.; R. v. B.V.N. to comment on the controversial nature of this objective. The passage which follows captures the essence of this debate, and is found at para. 3 of the judgment:

3While general deterrence as a goal of sentencing is generally well understood, there is much controversy on whether it works or not. Those who advocate its abolition as a sentencing principle, particularly in respect of youth, emphatically state that there is no evidence that it actually works in preventing crime. Those who advocate its retention are equally firm in their position and, in support, point to society's reliance on some form of general deterrence to guide young people in making responsible choices on various matters, for example, about smoking, using alcohol and drugs and driving a motor vehicle. The question whether general deterrence works or not is not the issue before this Court [...]

68In light of the importance of the subject matter being the purported ineffectiveness of deterrence, it will be of signal assistance to reproduce at length the valuable contributions of Justice Rosenberg that were approved of without qualifications in R. v. Proulx. Thus, the following passages are taken from R. v. Wismayer, 1997 CanLII 3294 (ON CA), 5 C.R. (5th) 248 (C.A.), at para. 49:

49In my view, the enactment of the conditional sentence regime represents a concession to the view that the general deterrent effect of incarceration has been and continues to be somewhat speculative and that there are other ways to give effect to the objective of general deterrence. The Report of the Canadian Sentencing Commission (1987) (the Archambault Report) summarized the state of understanding of general deterrence. The Commission's first three conclusions, at pp. 136-37 were as follows: [Emphasis added]

a) Even if there seems to be little empirical foundation to the deterrent efficacy of legal sanctions, the assertion that the presence of some level of legal sanctions has no deterrent effects whatsoever, has no justification. The weight of the evidence and the exercise of common sense favour the assertion that, taken together, legal sanctions have an overall deterrent effect which is difficult to evaluate precisely.

b) The proper level at which to express strong reservations about the deterrent efficacy of legal sanctions is in their usage to produce particular effects with regard to a specific offence. For instance, in a recent report on impaired driving published by the Department of Justice, Donelson asserts that "law-based, punitive measures alone cannot produce large, sustained reductions in the magnitude of the problem" (Donelson, 1985; 221-222). Similarly, it is extremely doubtful that an exemplary sentence imposed in a particular case can have any perceptible effect in deterring potential offenders.

c) The old principle that it is more the certainty than the severity of punishment which is likely to produce a deterrent effect has not been invalidated by empirical research. In his extensive review of studies on deterrence, Beyleveld (1980; 306) concluded that "recorded offence rates do not vary inversely with the severity of penalties (usually measured by the length of imprisonment)" and that "inverse relations between crime and severity (when found) are usually smaller than inverse crime-certainty relations".

69Of note, Justice Rosenberg took pains to add at para. 50 further guidance to the effect that "This is not to doubt the theory of general deterrence, or its application to the manner of service of the sentence of imprisonment. Requiring some offenders to serve the sentence in a correctional facility as opposed to the community can reasonably be expected to deter some persons from offending: see R. v. Shropshire, supra, [1994] 4 S.C.R. 222 at p. 202." His Lordship further observed, however, that the remarks consigned above "[...] suggest that general deterrence is not a sufficient justification for refusing to impose a conditional sentence. In view of its extremely negative collateral effects, incarceration should be used with great restraint where the justification is general deterrence." Further useful references are found at para. 50.

70I will reproduce as well the following observations, consigned at para. 52, as they provide a powerful statement of the need to match the objective of deterrence with the likely responsiveness of the community at large to the message of dissuasion:

52General deterrence, as the principal objective animating the refusal to impose a conditional sentence, should be reserved for those offences that are likely to be affected by a general deterrent effect. Large-scale, well-planned fraud by persons in positions of trust, such as the accused in R. v. Pierce, 1997 CanLII 3020 (ON CA), [1997] O.J. No. 715, would seem to be one of those offences. Even then, however, I would not want to lay down as a rule that a conditional sentence is never or even rarely available. Each case will have to be determined on its own merits. As Donnelly J. noted in R. v. G. (K.R.), a judgment of the Ontario Court (General Division), delivered October 18, 1996, [1996] O.J. No. 3867 at para. 30, general deterrence may be achieved in a variety of ways:

30The stigma of trial and conviction is a major deterrent. A conditional order must be, and must be seen to be, more onerous than suspended sentence by way of probation. To achieve goals of denunciation and general deterrence, the punishment must be meaningful by being visible, sufficiently restrictive, enforceable and capable of attracting stern sanction for failure to comply with the conditions. [Emphasis added]

71The quite instructive judgment of the Court of Appeal for Ontario in R. v. C.N.H., 2002 CanLII 7751 (ON CA), [2002] O.J. No. 4918 (C.A.) is also apposite. The Court, under the pen of Justice Rosenberg, first drew attention to the views of the trial judge according to which the reach of general deterrence had been blunted somewhat in recent years. Thereafter, the Court remarked at para. 35: "I agree with the trial judge that general deterrence as the animating objective of any offence must be approached with caution." [Emphasis added] Reference was then made to R. v. Biancofiore, 1997 CanLII 3420 (ON CA), [1997] O.J. No. 3865, 119 C.C.C. (3d) 344 (Ont. C.A.) at 356: "The general deterrent effect of incarceration is somewhat speculative and I adhere to the view I expressed in R. v. Wismayer, supra, at p. 36 that incarceration should be used with great restraint where the justification is general deterrence. There are, however, offences that are more likely to be influenced by a general deterrent effect."

72Not surprisingly, importation of large quantities of cocaine was identified as one such offence. See para. 36.

73I note as well the recent scholarship on the issue of the utility of specific deterrence found in Vol. 36(3), June 2012, at pages 159-172 of the Criminal Law Journal: "The capacity of criminal sanctions to shape the behaviour of offenders: Specific deterrence doesn't work, rehabilitation might, and the implications for sentencing", by Mirko Bagaric and Theo Alexander. Nonetheless, I am bound to apply the law as set down by Parliament and the appellate courts.

74Hence, I entertain no doubt that general deterrence represents an objective which may be met in the case of the possession of child pornography for no other reason than the fact that these accusations attract great publicity.

vi) Deterrence and Proportionality

75As is well known, proportionality is the fundamental principle in sentencing, as made plain at s. 718.1 of the Criminal Code. Para. 43 of R. v. Rogers consigns these observations as to the interplay as between proportionality and deterrence:

43Increasing the length of a sentence for specific deterrence without regard to whether it is proportionate to the gravity of the offence and the degree of responsibility of the offender is an error of law. The proportionality principle may be informed by the requirement that sentences be similar, in that the sentences in prior similar cases provide a gauge as to the view of various courts concerning the gravity of a particular offence and the degree of responsibility calling for sanction in particular circumstances. [Emphasis added]

vii) Deterrence and Individualization of Sentences

76R. v. Wells discussed this element in the sentencing alchemy at para. 40 in particular.

40However, the scope of s. 718.2 (e), as it applies to all offenders, restricts the adoption of alternatives to incarceration to those sanctions that are "reasonable in the circumstances". Again, as was expressly stated in Gladue, the Court in no way intended to suggest that as a general rule, the greatest weight is to be given to principles of restorative justice, and less weight accorded to goals such as denunciation and deterrence. Indeed, such a general rule would contradict the individual or case-by-case nature of the sentencing process, which proceeds on the basis of inquiring whether, given the particular facts of the offence, the offender, the victim and the community, the sentence is fit in the circumstances. [Emphasis added]

77In the course of R. v. Berry, 2012 ONCA 621, an endorsement signed by Doherty, Hoy and Pepall J.A., we read: "[4] We do not agree that the trial judge erred in imposing a sentence beyond the settled range. Ranges exist to promote parity. Parity is premised on treating 'like' offenders in a comparable manner. To the extent that the circumstances distinguish an offender, be they mitigating or aggravating from the typical offence, ranges will have less significance. Sentencing is an individualized process. The appellant's extensive and related criminal record and the total absence of anything by way of mitigation drove this sentence somewhat beyond the usual range. We cannot say that the sentence is manifestly unreasonable."

78The majority opinion in R. v. Brooks, 2012 ONCA 703, provides signal assistance on the question of the individualization of sentences.

12The trial judge also considered the serious nature of the offence, the limited connection the appellant had to his Aboriginal heritage, and the absence of any connection between the offence and the Aboriginal community. He considered these factors not to exclude any consideration of s. 718.2 (e), but rather to determine what effect that section would have in the specific circumstances of this case. As pointed out in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 68-73, sentencing of all offenders, including Aboriginal offenders, is an individualized process. Section 718.2 (e) must be addressed in all cases involving Aboriginal offenders. That is not to say, however, that the circumstances relevant to s. 718.2 (e) do not have to have some connection to the offence and/or the offender before they will impact on the sentence. As explained in Ipeelee, at para. 83:

viii) Deterrence and s. 718.2(e) of the Criminal Code

79In this respect, the most helpful case with which to begin our review is R. v. Wells, at para. 40, quoted in the preceding paragraph. Further, para. 42 insists on the need for sentence severity in direct proportion to the severity of the harm occasioned to the victim and to the community.

80Ultimately, para. 44 reinforced this instruction in these words:

44Let me emphasize that s. 718.2(e) requires a different methodology for assessing a fit sentence for an aboriginal offender; it does not mandate, necessarily, a different result. Section 718.2(e) does not alter the fundamental duty of the sentencing judge to impose a sentence that is fit for the offence and the offender. Furthermore, in Gladue, as mentioned the Court stressed that the application of s. 718.2(e) does not mean that aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice and less weight to goals such as deterrence, denunciation, and separation (at para. 78). As a result, it will generally be the case, as a practical matter, that particularly violent and serious offences will result in imprisonment for aboriginal offenders as often as for non-aboriginal offenders (Gladue, at para. 33). Accordingly, I conclude that it was open to the trial judge to give primacy to the principles of denunciation and deterrence in this case on the basis that the crime involved was a serious one. [Emphasis added]

ix) Deterrence May Not Be Achieved Without Actual Imprisonment in Certain Prosecutions

81In this regard, I refer to para. 106 and following of Chief Justice Lamer's reasons in R. v. Proulx, which follows as consigned at para. 34 of R. v. Wells:

34Nevertheless, Lamer C.J. pointed out that "there may be certain circumstances in which the need for denunciation [or deterrence] is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct" (Proulx, at para. 106). He further stated (at paras. 114 and 116):

This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence. Conversely, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of diminished importance, depending on the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to be served. [Emphasis added]

82And, as noted throughout, deterrence serves an overall salutary purpose to protect future victims from future offending. This objective is discussed in particular in the case of R. v. Camuso, [2004] O.J. No. 4606 (Sup. Ct.).

83I am of the view that the successful application of the objective of deterrence, from the perspective of the general discouragement of such odious conduct as possession of child pornography, requires the assignment of a period of imprisonment greater than the minimum period provided by Parliament in this instance notwithstanding the many mitigating features. With respect to individual deterrence, it is not necessary that any period of imprisonment greater than the minimum period of 45 days be selected to deter Mr. Foley in light of his guilty plea and overall acceptance of responsibility. The period of detention selected reflects the need to emphasize the objectives of denunciation and deterrence and to respect s. 718.01 of the Criminal Code.

d) The Objective of Separating Offenders from Society, Where Necessary: Clause 718(c)

84As is well understood separation of offenders from society typically occurs as a result of a jail sentence. Nevertheless, I note that Parliament in crafting the language of this legislative provision did not choose the verb to imprison' or a similar word. Instead, Parliament elected to include the far more neutral expression to separate' offenders. Hence, separation not only must not occur unless it is necessary, it should not be understood to be achieved only through the vehicle of imprisonment.

85Of course, in this instance, the offender Mr. Foley must be detained but this clause continues to apply as the objective of the "further" or "enhanced" separation above the minimal period may only occur "if necessary".

i) Separation and the General Principle of Restraint

86Without assigning too much ink to the subject, it may be said that the objective of separating offenders from society where necessary without actual imprisonment is not inconsistent with the general restraint in sentencing and in the recourse to jail. Consider the guidance advanced by Chief Justice Lamer for the unanimous Supreme Court of Canada in R. v. Proulx, 2000 SCC 5, 30 C.R. (5th) 1 (S.C.C.), at para. 1: "By passing the Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22 ("Bill C-41"), Parliament has sent a clear message to all Canadian judges that too many people are being sent to prison. In an attempt to remedy the problem of over-incarceration, Parliament has introduced a new form of sentence, the conditional sentence of imprisonment."

ii) Jail is Often Necessary

87Indeed, R. v. M. (R.T.), 2008 ONCA 47, provides the following instruction in this respect:

1The respondent was convicted on charges of sexual exploitation, sexual interference, indecent act, gross indecency, sexual assault, and failure to comply with an undertaking. Following a preliminary inquiry, he pled guilty and was sentenced to two years imprisonment having regard to time served of 7.5 months for which he was given one year credit. In addition, the sentencing judge ordered three years probation. The Crown is appealing this sentence.

2In our opinion, the sentencing judge failed to appreciate the seriousness of the offences and the appropriate range of sentence for them. When the sentencing judge said, that in relation to the range of sentence suggested by the Crown, a "sentence of five to seven years in the penitentiary is overreaching a lot" for this type of offender and these offences, he was simply wrong. Moreover, even for a first-time offender convicted of this type of offence taking place over a large number of years, the sentencing principles to be accorded the greatest weight are deterrence, denunciation and the separation of the offender from society: R. v. D. (D.), 2002 CanLII 44915 (ON CA), [2002] O.J. No. 1061, 163 C.C.C. (3d) 471, 58 O.R. (3d) 788, 157 O.A.C. 323 (C.A.) at paras. 34-35.

88In effect, the Court of Appeal for Ontario made plain that s. 718 (c) of the Criminal Code operates together with the earlier noted objectives of denunciation and deterrence in order to punish, where apt, offenders as this will denounce the anti-social behaviour, deter this offender and others who might be like-minded and protect the community as a whole be removing the offender from a position of further violent behaviour, at least as it touches upon vulnerable children.

89The codified objective of separating offenders from society, where necessary, is an expression of Parliament's will that imprisonment must be resorted to if required in the interests of protecting the community. A review of the text of the legislative scheme introduced in September of 1996, as a whole, makes plain that Parliament did not consider it necessary that imprisonment be resorted to in all cases as the concurrent introduction of the conditional sentence of imprisonment makes it obvious that the legislators did not envisage that offenders would be totally separated from society unless this action was necessary, leaving aside cases of minimum jail sentences.

e) Clause (d) of s. 718 of the Criminal Code: Assisting in the Rehabilitation of Offenders in Order to Protect Society

90In light of the presence of a minimum period of imprisonment, this clause has limited scope in this prosecution. Not unlike what I noted in the case of the separation of offender clause, the strong rehabilitative elements in this case, notably the guilty plea and the acceptance of responsibility, and the lack of a clear indication of any undue or evident risk of recidivism, leads me to conclude that rehabilitation is an obvious objective to be pursued in this case, and that it serves to temper the reach of the punitive objectives of denunciation and deterrence. Stated otherwise, but for the strong prospects of rehabilitation, the sentence would have been greater to foster the objective of individual deterrence.

91In reaching this conclusion, I have found that my review of the authorities demonstrates that rehabilitation will tend to dominate the sentencing calculus in any instance in which the immediate need for the promotion of the safety of the community by separating the offender as a result of the application of the principles of denunciation and deterrence does not trump the long-term requirements of the community's safety as best ensured by the rehabilitation of an individual who is capable of being reformed and returned to take a productive place within society notwithstanding prior offending conduct. Typically, leniency to enable rehabilitation to be achieved is displaced in cases in which the gravity of the criminal conduct calls for imprisonment. Given the reality of a minimum jail sentence, however, and the need to respect s. 718.01, a jail sentence is required but it has been crafted to promote rehabilitation. In the same vein, as will be seen, the objective of restorative justice has been given less importance in order to permit the offender to pursue his rehabilitation by focusing on treatment and counselling.

f) Clause (e) of s. 718 of the Criminal Code: The Objective of Reparation for Harm Done to Victims or to the Community

92This objective is not relevant to this sentence in the absence of any known victim. That being said, there are hundreds of victims in this case, but Mr. Foley cannot assist any of them, or advance an apology, in the circumstances.

g) Clause (f) of s. 718 of the Criminal Code: The Objective of Promoting a Sense of Responsibility in Offenders and of Acknowledgement of Harm

93S. 718 (f) of the Criminal Code reads: "to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community".

94Thus, the sentencing Court must seek to:

• a) promote a sense of responsibility for offenders with respect to the harm visited upon the victim(s) and the community, and
• b) promote the acknowledgement and recognition by offenders of that harm, as it touches the precise victim(s) and the community which has been victimized.

95Typically, it is considered consonant with the classification of the animating principles of sentencing to group this objective with the other "restorative" or attenuating objectives of rehabilitation and reparation, in opposition to the so-called "punitive" ones of denunciation, deterrence and separation. Hence, it will be instructive to refer to para. 24 of R. v. Folino, 2005 CanLII 40543 (ON CA), [2005] O.J. No. 4737, 77 O.R. (3d) 641, 203 O.A.C. 258, 202 C.C.C. (3d) 353 (C.A.): "In my view, in the circumstances of this particular offender, the sentencing judge overemphasized the punitive sentencing objectives of denunciation and deterrence and failed to consider the restorative objectives of rehabilitation, reparations and promotion of a sense of responsibility [...]" [Emphasis added]

i) Clause 718(f) as Interpreted by Chief Justice Lamer in R. v. Proulx

96In R. v. Proulx, the Supreme Court of Canada first addressed the meaning to be given to this section at paras. 18 to 20 in the course of discussing the expansion of the use of restorative justice principles in sentencing.

97In addition, para. 19 is also apposite:

19Canadian sentencing jurisprudence has traditionally focussed on the aims of denunciation, deterrence, separation, and rehabilitation, with rehabilitation a relative late-comer to the sentencing analysis: see Gladue, at para. 42. With the introduction of Bill C-41, however, Parliament has placed new emphasis upon the goals of restorative justice. Section 718 sets out the fundamental purpose of sentencing, as well as the various sentencing objectives that should be vindicated when sanctions are imposed. In Gladue, supra, Cory and Iacobucci JJ. stated (at para. 43):

43Clearly, s. 718 is, in part, a restatement of the basic sentencing aims, which are listed in paras. (a) through (d). What are new, though, are paras. (e) and (f), which along with para. (d) focus upon the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. The concept of restorative justice which underpins paras. (d), (e), and (f) is briefly discussed below, but as a general matter restorative justice involves some form of restitution and reintegration into the community. The need for offenders to take responsibility for their actions is central to the sentencing process ... Restorative sentencing goals do not usually correlate with the use of prison as a sanction. In our view, Parliament's choice to include (e) and (f) alongside the traditional sentencing goals must be understood as evidencing an intention to expand the parameters of the sentencing analysis for all offenders. [Emphasis added - citation omitted]

98The question of restorative justice was pursued subsequently, at paras. 109 to 112, under the rubric "(iv) Restorative Objectives". In light of the significance of the information advanced by the Supreme Court on this topic at paras. 109 and 112 in particular, these two paragraphs are reproduced in full:

109While incarceration may provide for more denunciation and deterrence than a conditional sentence, a conditional sentence is generally better suited to achieving the restorative objectives of rehabilitation, reparations, and promotion of a sense of responsibility in the offender. As this Court held in Gladue, supra, at para. 43, [r]estorative sentencing goals do not usually correlate with the use of prison as a sanction'. The importance of these goals is not to be underestimated, as they are primarily responsible for lowering the rate of recidivism. Consequently, when the objectives of rehabilitation, reparation, and promotion of a sense of responsibility may realistically be achieved in the case of a particular offender, a conditional sentence will likely be the appropriate sanction, subject to the denunciation and deterrence considerations outlined above. [Emphasis added]

112The objectives of reparations to the victim and the community, as well as the promotion of a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community may also be well served by a conditional sentence. For example, in some cases, restitution orders to compensate the victim may be made a condition. Furthermore, the imposition of a condition of community service can assist the offender in making reparations to the community and in promoting a sense of responsibility. An interesting possibility in this regard would be an order that the offender speak in public about the unfortunate consequences of his or her conduct, assuming the offender were amenable to such a condition. Not only could such an order promote a sense of responsibility and an acknowledgment of the harm done by the offender, it could also further the objective of deterrence, as I discussed above. In my view, the use of community service orders should be encouraged, provided that there are suitable programs available for the offender in the community. By increasing the use of community service orders, offenders will be seen by members of the public as paying back their debt to society. This will assist in contributing to public respect for the law. [Emphasis added]

ii) Community Service Orders and Fostering a Sense of Responsibility

99The corollary proposition to the prior ones is that community service orders may be particularly apt in fostering the promotion of this sense of responsibility, especially where offenders speak publicly of their crimes. Indeed, para. 112 of the reasons of judgment of Chief Justice Lamer in R. v. Proulx provides signal instruction in this respect.

100A signal example of such a condition is seen in R. v. Kutsukake, 2006 CanLII 32593 (ON CA), [2006] O.J. No. 3771, 216 O.A.C. 317, 213 C.C.C. (3d) 80, 36 M.V.R. (5th) 174 at para. 23 and para. 24, which highlight the assumption by the offender of the punitive condition of public speaking in which he would lay bare his terrible conduct as well as the pro-social result of shocking other would-be offenders in avoiding such terrible deeds:

23The appellant does not pose a risk of re-offending and it is not necessary, therefore, to separate her from society. Her rehabilitation would plainly be better served by a conditional sentence. With respect to reparation, no sentence we can impose could ever make up for the devastating loss of Derek Cameron. The promotion of a sense of responsibility would, in my view, be served by a sentence that requires the young person who caused his death to acknowledge publicly her wrongdoing through a form of community service that will warn others of the devastating consequences of participating in reckless thrill-seeking behaviour. [Emphasis added]

24[...] I would substitute a conditional sentence of eighteen months, taking into account the fact that the appellant has already served forty-one days in custody. The first nine months of the conditional sentence are to be served in the form of house arrest, [...] In addition, I would require the appellant to perform 240 hours of community service as directed by her probation officer and direct that, to the extent possible, a significant portion of that community service be in the form of speaking at schools or other like institutions about the dangers of her conduct [...]

101In this instance, I will order Mr. Foley to perform 100 hours of community service during the first 12 months of his period of probation, and this order serves to mitigate the rigours of the jail sentence which would have been slightly more severe otherwise. Nonetheless, even an order for the maximum number of hours would not assist in avoiding a significant increase of the minimum jail term mandated by Parliament due to the significant nature of this type of offence in all of the circumstances.

j) S. 718.01 and Emphasizing Denunciation and Deterrence

i) In General

102The next element I wish to address concerns the sentencing objective found at s. 718.01 of the Criminal Code, in force as of November 1, 2005. In effect, it establishes and promotes the objective of protecting children by emphasizing that primary consideration must be given to the objectives of denunciation and deterrence in a case in which an offender abused a person under the age of eighteen. Of note, the legislation refers to "[...] deterrence of such conduct", as opposed to deterrence of the offender. Accordingly, primacy is assigned to both denunciation, the objective consigned at s. 718 (a) of the Criminal Code and to deterrence, the objective found at s. 718 (b).

103I note that this section was selected by Parliament well after the reforms introduced in 1996 and known as Bill C-41. In this vein, I wish to refer to the superb judgment of my colleague Justice Lane in R. v. Welsh, 2007 ONCJ 651. Her Honour's instruction is found under the rubric: "The Law relevant to Sentences for Sexual Assault on Children and Young People" and begins at para. 2. By reason of the lucid and immensely helpful overview of the legislation at hand, it will be opportune to quote at length from the following paragraphs.

2The Supreme Court of Canada in R. v. Proulx, 2000 SCC 5, 140 C.C.C. (3d) 449 has indicated that conditional sentences can be considered for all offences that meet the statutory criteria as set out in s. 742.1 of the Criminal Code: there is no minimum term of imprisonment, a sentence of less than two years is appropriate, and the court is satisfied that a conditional sentence would not endanger the community and would be consistent with the fundamental principles of sentencing set out in sections 718 - 718.2 of the Criminal Code.

3Those provisions defined by Parliament indicate the factors to be considered on sentencing: including denunciation, specific deterrence of the offender, general deterrence, the need to separate offenders from society, rehabilitation, reparations and need to promote a sense of responsibility and an acknowledgment of the harm to the victims and to society. Section 718.01 specifically directs that 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. In addition, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentencing court must also take into consideration deemed aggravating factors including evidence that the offender abused a person under the age of eighteen years, and evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim. In addition, the sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances; the offender should not be deprived to liberty, if less restrictive sanctions may be appropriate in the circumstances, and all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders. It is these principles that I am obliged to consider in this sentencing. [Emphasis added]

104This quotation demonstrates ably the path to judgment to be followed by the sentencing Court and the interplay linking all of the related objectives. In addition, the two passages which I have underlined refer to the twin objectives of s. 718.01 and s. 718.2 (a)(ii.1) of the Criminal Code. This latter provision reads as follows: "A court that imposes a sentence shall take into consideration the following principles: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstance relating to the offence or the offender, and, without limiting the generality of the foregoing [...] (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years [...] shall be deemed to be aggravating circumstances."

105The two material elements which distinguish the former provision from the latter are firstly that s. 718.01 of the Criminal Code requires only that the unlawful conduct "[...] involved the abuse of a person under the age of eighteen [...] while the latter refers to what might be described as direct abuse. Secondly, Parliament saw fit to designate that the broad conduct described in s. 718.01 was to be both denounced and deterred while the narrower conduct described at s. 718.2 (a)(ii.1) was an aggravating circumstance.

106As may be easily understood, Parliament's concern was to protect children and the enactment of s. 718.01 of the Criminal Code was meant to further this objective. In this vein, consider R. v. M. A.P., 2007 NBQB 407 at para. 26: "Parliament is also concerned about offences against children and in Section 718.01 emphasizes: 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.'"

107By way of summary, s. 718.01 of the Criminal Code makes plain that in the situation described therein, that is to say the abuse of a person under the age of eighteen, the objectives of denunciation and deterrence of such conduct are to be assigned primary consideration in the sentencing calculus.

108It will be of assistance to consider this legislative objective in context. By way of example, the offender in the case of R. v. Oliver, 2007 NSCA 15, appealed without success the two year term of imprisonment, followed by 12 months of probation, selected to sanction three acts of sexual violence involving a twelve year old, including vaginal intercourse leading to a pregnancy. The victim was a friend of the family. Of interest, para. 20 reads in part:

20[...] it seems clear to me that in [the eyes of the trial judge] the appellant remains a substantial risk to the community. Given the age of the complainant and the circumstances surrounding the offence it was - as the judge said - a case that called for very strong denunciation with an emphasis on deterrence. In this Judge Digby's approach was obligatory. Denunciation and deterrence are given the highest ranking among all of the principles of sentencing in cases involving the abuse of children. Parliament's intention is clearly stated. The Criminal Code provides: 718.01 –

Objectives - offences against children - 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. [Emphasis added]

109Leaving aside the above noted comment setting out the highest ranking to the objectives of denunciation and deterrence, para. 45 of R. v. G.D.C., 2006 ABQB 832, is instructive in pointing to the actual selection of priority in a given case. In this instance, grave sexual violence was perpetrated by a father towards his under eighteen child. Accordingly, "[...] The primary goals to consider in sentencing this Accused are deterrence, both individual and general, and denunciation: s. 718.01. These would not be adequately achieved by imposition of the four year global sentence jointly submitted by counsel." [Emphasis added]

110Expressed otherwise, s. 718.01 of the Criminal Code does not bar consideration to other objectives of sentencing: It directs the selection of the relative ranking. R. v. Michel, [2005] N.W.T.J. No. 105, 2005 NWTSC 94 is apposite to the solution of this issue. As we read at para. 62: "The priority objectives of a sentence in the case of the sexual violation of a young person must always be denunciation and deterrence. The sentence must be sufficient punishment so as to reflect society's abhorrence of such conduct so as to discourage others who might engage in similar conduct. Courts have long said that those are the important objectives." [Emphasis added]

111Of further note, the Court added at para. 63: "Now recent amendments to the Criminal Code of Canada in the form of Section 718.01 require that when a Court imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. This does not mean that other objectives such as in an appropriate case rehabilitation are to be disregarded but it does mean that denunciation and deterrence have to be the first consideration." [Emphasis added]

112In other words, both objectives are given equal priority as between each other, but in priority to the other objectives and the ranking to be assigned to the six sentencing objectives listed in s. 718 of the Criminal Code are case specific and their relative importance will be determined by the nature of the offence and of the offender at the conclusion of an exercise of discretion by the sentencing judge. By way of contrast, there is no exercise of discretion in the case of abuse of one under the age of eighteen: the Court begins by assigning pride of place to both denunciation and deterrence. That is not to say, of course, that the resulting sentence must be one in which imprisonment is selected or emphasized but the likelihood of such a result is enhanced given the dictates of Parliament.

113Para. 22 of R. v. M. S.M., 2006 BCSC 1938 includes these comments: "[...] it is worth noting that s. 718.01 now mandates the primacy of the objectives of denunciation and deterrence in sentencing for offences involving the abuse of persons under the age of 18 years. This is consistent with longstanding case law." [Emphasis added]

114Note as well R. v. G.J.O., 2006 NLTD 90, at para. 26: "As to general deterrence, s. 718.01, a recent amendment to the Criminal Code, codifies the existing sentencing law in mandating that in sentencing for offences, such as these, which involved the abuse of persons under 18 years of age, primary consideration is to be given to the objectives of denunciation and deterrence." [Emphasis added]

115That s. 718.01 of the Criminal Code codifies well understood sentencing principles was also the subject of instruction in the case which follows. In R. v. Cazon, 2006 NWTTC 11, a case of an adult repeat offender supplying alcohol to a 15 year old, the Court pointed out at para. 26 that Parliament codified existing and well understood concepts in sentencing when it enacted s. 718.01 of the Criminal Code: "[26] Neither of these provisions changed the law when they were enacted; denunciation and deterrence have always been prime considerations in sentencing for offences against children. But I refer to this legislation to show that the legislators have made a clear and cogent statement - children will be protected. It is the responsibility of us all."

116Noteworthy as well is the recent judgment of the Court of Appeal for Ontario, R. v. M. (P.), 2012 ONCA 162. At the outset, I recognize and emphasize that the fact situation is different from the case at Bar to a signal degree both in terms of the nature of the offending conduct and the moral blame to be assigned to the offender in each case. Further, that the passages I wish to underscore are consigned within the dissenting judgment. Nonetheless, the general guidance put forward by Justice Epstein in respect to the gravity of the offence of possession of, and accessing, child pornography was advanced as well by the majority, albeit in a fashion less conducive for incorporation in a subsequent judgement. Thus,

118As noted by my colleague, recent amendments to the Criminal Code and decisions of this court have signalled a determination to address, in a more powerful and effective fashion, the need to denounce and deter crimes that involve the sexual victimization of children.

122In R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at para. 92, the Supreme Court spoke to the nature and significance of the harm caused by the production of child pornography:

92The link between the production of child pornography and harm to children is very strong. The abuse is broad in extent and devastating in impact. The child is traumatized by being used as a sexual object in the course of making the pornography. The child may be sexually abused and degraded. The trauma and violation of dignity may stay with the child as long as he or she lives. Not infrequently, it initiates a downward spiral into the sex trade. Even when it does not, the child must live in the years that follow with the knowledge that the degrading photo or film may still exist, and may at any moment be being watched and enjoyed by someone else.

117Justice Epstein then remarked: "[124] In addition, as my colleague noted, ss. 718.01 and 718.2 of the Criminal Code identify certain factors, relevant to this case, as aggravating circumstances."

ii) Vulnerability as the Hallmark of the Need for Protection

118The judgment of Daniel J. in the case of R. v. M. (R.), 2008 ABPC 22, makes plain at para. 16 that Parliament introduced this specific provision in order to both acknowledge the heightened vulnerability of those under the age of eighteen and to concomitantly increase the potential protection they may receive from sentencing Courts. As noted,

16The aggravating factors are that the accused was in a position of trust, being a guest/tenant in the girl's home for a month prior to this incident. He took advantage of the trust placed in him by the girl's father and the girl herself, as this was not the first time he was alone in the house with her. He took advantage of a situation where detection of his actions was unlikely. The very young age of the victim made her particularly vulnerable, thus bringing in s. 718.01, 718.2 (a)(ii.1) and 718.2 (a)(iii) of the Criminal Code. Serious psychological harm and emotional trauma of the young girl is assumed [...]

119Further, I have considered the endorsement of Moldaver, Feldman and MacFarland JJ.A. in R. v. Nisbet, 2011 ONCA 26, which begins with these words: "[1] Sadly, possession of child pornography facilitated through the internet is on the rise. It is an abhorrent crime that victimizes the most vulnerable members of our society and hence the need for sentences to reflect denunciation and deterrence." [Emphasis added]

120The Court noted at para. 2 that the offender's computer contained "… a number of files which showed children aged 4 to 14 being depicted in all types of sexual activity with other children and adult males. Many of those files bore titles suggestive of child pornography." See para. 2. In the result, the Court concluded at para. 3: "The appellant argues that the sentence imposed was too high. We disagree. In our view, a sentence of six months was not inappropriate in all the circumstances of this case. A message must go out that this sort of conduct will not be tolerated…"

iii) S. 718.01 Considered Together with s. 718.1

121The next subject to be considered is the interplay of s. 718.01 with s. 718.1 of the Criminal Code, the fundamental principle of sentencing. Expressed succinctly, by its very terms, the fundamental principle of sentencing expressed at s. 718.01 of the Criminal Code, that "a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

122The Queen's Bench of Manitoba considered this issue in the case of R. v. D.W.N., 2007 MBQB 274. As we read at para. 11 and para. 12:

11Sentencing principles are set out in s. 718 of the Code. The fundamental principle is to impose a sentence proportionate to the gravity of the offence and to the degree of responsibility of the offender. To do so, I must take into account the circumstances of the offence and the offender including what may be considered as aggravating and mitigating circumstances, and then consider and balance the objectives of sentencing in the sentence I impose.

12In balancing those objectives, I am also cognizant of the provisions of s. 718.01 of the Code which states:

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.' [Emphasis added]

iv) S. 718.01 Considered with s. 718.2(ii.1)

123The interplay between s. 718.01 and s. 718.2 (ii.1) of the Criminal Code illustrates a further question of balance. In this respect, R. v. Mebrate, [2007] N.S.J. No. 171, 2007 NSPC 17, 253 N.S.R. (2d) 360 includes this observation at para. 24:

24Despite our cultural diversity, I am reminded that this was an offence against a vulnerable young child where the primary consideration must be given to the objectives of denunciation and deterrence of such conduct.' See: Criminal Code, s. 718.01, s. 718.2(a)(ii.1). These provisions highlight the sentencing principle that in considering the circumstances of the offence and the offender and taking into account any relevant aggravating and mitigating factors, I must impose a sentence that would denounce his unlawful conduct; deter him from committing a similar or other offence; assist in his rehabilitation; promote in him a sense of responsibility and an acknowledgment of the harm that he has done to B.D. and to the community; and to separate him from the society, where necessary. See: Criminal Code, s. 718. [Emphasis added]

124Recall that s. 718.2 (ii.1) reads as follows:

A court that imposes a sentence shall also take into consideration the following principles: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing [...] (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years [...]

125Note as well the following passages taken from R. v. C.H., 2008 ABPC 71, at para. 4, following the recitation by the trial judge of the text of ss. 718.01 and s. 718.2 (a)(ii.1) of the Criminal Code: "[...] Accordingly, the abuse of F.H., a child under the age of eighteen, by the Accused is by virtue of statute, deemed to be an aggravating factor in sentencing of the Accused [...]"

v) S. 718.01 Considered with s. 163.1 (Child Pornography)

126It must be noted that all cases of child pornography necessarily violate the sexual integrity of children under the age of eighteen and thus, engage s. 718.01 of the Criminal Code. Although due effect must be assigned to s. 718.01, sight must not be lost of the need for a balanced approach, but in the ultimate analysis, it seems that severity appears to be of the highest importance, all things being equal. A sound example is the case of R. v. Aylesworth, 2008 ONCJ 68 which reminds us at para. 34 that "[...] Child pornography is a rampant problem nationally and internationally. It involves the abuse of young children for the selfish, egotistical sexual pleasure of the offenders [...]"

127Having set out this aggravating element, the trial judge remarked at para. 38:

38Section 718.01 states that, "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." I consider possession of child pornography "an offence that involved the abuse of a person under the age of eighteen years" because our courts have pointed out quite forcefully that even mere possession of child pornography victimizes indirectly young children.

vi) Loss of Discretion and the Operation of s. 718.01

128R. v. B.D., 2008 ONCJ 21 reminds us of the following legislative limitation of sentencing discretion at para. 46 and para. 47:

46Ordinarily, a sentencing court has discretion to determine which sentencing objectives should be considered paramount in light of all of the circumstances of the case. That discretion is not available in the case at bar because all of the offences (save for the production of marihuana) involved the abuse of persons under the age of eighteen years. Section 718.01 of the Code provides that in imposing sentence for an offence involving the abuse of persons under the age of eighteen years, a sentencing court shall give primary consideration to the objectives of denunciation and deterrence of such conduct'. [Emphasis added]

47Section 718.2(a) provides that the quantum of sentence should be increased or reduced to reflect the presence of aggravating or mitigating circumstances, and specifically provides [at clause (ii.1)] that "evidence that the offender, in committing the offence, abused a person under the age of eighteen years, [or] evidence that the offender in committing the offence abused a position of trust or authority in relation to the victim ... shall be deemed to be aggravating circumstances" [...] [Emphasis added]

vii) The Mandatory Nature of the Legislative Injunction

129Briefly, note the case of R. v. Innes, 2007 ABPC 237, at para. 70: "Section 718.01 is a sentencing objective that is specific to offences against children. The provision makes it mandatory for a sentencing judge to place primary emphasis upon the objectives of denunciation and deterrence in such cases: "[w]hen 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". [My emphasis]."

viii) S. 718.01 Was Introduced Subsequent to R. v. Proulx

130I know of no case which has considered this issue but it must be noted that the seminal case of R. v. Proulx, 2000 SCC 5, 30 C.R. (5th) 1 (S.C.C.), and the four other cases including R. v. R.A.R., 2000 SCC 8, [2000] 1 S.C.R. 163, and R. v. R.N.S., 2000 SCC 7, [2000] 1 S.C.R. 149, which considered the sentencing reform of 1996 did not have to apply this remedial legislation. Accordingly, may it be argued that Parliament intervened in order to reduce the application of the instruction of the Supreme Court of Canada, especially as it pertains to the selection of a conditional sentence in the case of abuse of children?

131In the final analysis, as expressed by Madam Justice L'Heureux-Dubé of the Supreme Court of Canada in R. v. R. (D.), 197 N.R. 321, at para. 107: "Sexual abuse of children is, sadly, one of the more prevalent crimes in our society: R. v. D.O.L., 1993 CanLII 46 (SCC), [1993] 4 S.C.R. 419; 161 N.R. 1; 88 Man.R.(2d) 241; 51 W.A.C. 241, at p. 439 [S.C.R.], per L'Heureux-Dubé, J.; Paciocco, supra, at p. 346. It is also notoriously difficult to prosecute. Because of the power imbalance between the victim and the perpetrator, and the fact that there are usually no witnesses to the crime other than the assailant and the young victim, it has been called the perfect crime' [...]" Not surprisingly, Parliament has sought to repress the incidence of such misconduct by means of a sentencing objective which serves to heighten the importance of punitive factors in sentencing.

k) S. 718.1 of the Criminal Code: Proportionality is the Fundamental Principle in Sentencing

i) In General

132By reason of the numerous references to this principle in the course of the earlier themes discussed, it is not necessary to review this fundamental principle. Suffice it to say that I have concluded that the sentence selected is proportionate to the mitigating factors identified in this case including the guilty plea, the acceptance of responsibility, the favourable pre-sentence report, the absence of any prior offending conduct which is germane, the neutral medical information suggesting a relatively low risk of further offending in light of the dangers associated with any form of predictive analysis, the favourable prospects for rehabilitation including amenability to treatment and a good work record. The term of imprisonment selected, together with the period of probation and ancillary orders, reflects the need to denounce and to deter in general, including the need to mark the gravity of this offending conduct in particular, including the number of the images in question which is found to be in the middle of the spectrum of gravity and closer to the favourable end of the spectrum, all other things being equal.

133The judgment of Justice Epstein in R. v. M. (P.), 2012 ONCA 162, dissenting in the result but not in this vein, is also helpful in making plain that "[117] The quantum of sentence must be proportional to the gravity of the offences and the moral blameworthiness of the offender: see Criminal Code, s. 718.1; R. v. C.A.M., 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at p. 529; Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, Wilson J., concurring, at p. 533."

ii) Possession of Child Pornography is a "Sex Offence": Assessing Gravity

134In evaluating the objective gravity of the offence charged, I note that para. 19 of R. v. Dyck, 2008 ONCA 309, includes this valuable guidance in the course of discussing Christopher's Law and S.O.I.R.A.:

19A "sex offence" for the purposes of the Act is quite broadly defined. It includes convictions for sexual assault, sexual assault with a weapon, aggravated sexual assault, sexual interference, invitation to sexual touching, sexual exploitation, incest, bestiality, parent or guardian procuring sexual activity, exposure, luring a child by means of a computer system, living off the avails of prostitution of a person under the age of eighteen, purchasing sexual services of a person under the age of eighteen, and making, distributing, possessing, or accessing child pornography [...] [Emphasis added]

iii) The Dangers Associated with Viewing and Possessing Child Pornography: Assessing Gravity

135Many examples might be cited to support the link between risk of sexual violence, especially directed at children, and the possession and viewing of pornography. One illustration is found in R. v. Saddlemire, 2007 ONCA 36 at paras. 53 and 54.

l) The Evolution of the Case Law in Respect to Possession of Child Pornography

i) In General

136Noteworthy in this vein is the judgment of the Court of Appeal in the case of R. v. F. (D.G.), 2010 ONCA 27. Justice Feldman, Blair and Watt JJ.A. concurring, remarked at para. 1 that "The respondent pled guilty to seven sexual offences against children, including two counts of sexual assault of his four-year old daughter, three counts of making child pornography using his four-year old daughter, one count of possession of child pornography and one count of distributing child pornography. The horrific details will be described below, but the culminating act was a live sexual assault of his daughter transmitted by webcam in an internet chat room set up for pedophiles." Once again, in attempting to apply the Court's instruction in terms of sentencing for the offence for which Mr. Foley has acknowledged guilt, I have instructed myself that the offender in the case being discussed at present was guilty of far more serious crimes and deserving of special condemnation. Nevertheless, the passages quoted below are quite helpful in the case of Mr. Foley, in a general fashion.

137The first passage of interest is found at para. 18: "In order to determine a fit sentence, the sentencing judge must consider and assess the overall gravity of the offence or offences committed and the circumstances in which they were committed. This reflects the basic tenet of fairness that the punishment fit the crime." The Court then advanced these further comments of interest, again at para. 18:

In his text, Sentencing, 7th ed. (Markham: LexisNexis Canada Inc., 2008), Clayton Ruby puts it this way at p. 27:

The nature or gravity of the offence is, properly, the central factor in sentencing. It is and must be the "first rule that prompts the magistrate". Our basic notion of fairness demands that every sentence be primarily and essentially appropriate to the offence committed, having regard to the nature of the crime and the particular circumstances in which it was committed.

138Of special interest are the comments found at para. 21:

21Over the last two decades, courts have been on a learning curve to understand both the extent and the effects of the creation and dissemination of child pornography over the internet and to address the problem appropriately: see, for example, R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; R. v. Kwok, 2007 CanLII 2942 (Ont. Sup. Ct.). A number of relatively lenient sentences had been imposed in cases where child pornography was downloaded or distributed, there was no sexual abuse or making of child pornography involved, and there were many mitigating circumstances: see for example, R. v. Schan, 2002 CanLII 41613 (ON CA), 155 O.A.C. 273; R. v. Weber, 2003 CanLII 28579 (ON CA), 175 O.A.C. 138; R. v. Kim, 2004 CanLII 32118 (ON CA), 181 O.A.C. 88. However, in cases that involved making child pornography and child sexual abuse, significant custodial sentences were imposed: see, for example, R. v. Jewell; R. v. Gramlick, 1995 CanLII 1897 (ON CA), 100 C.C.C. (3d) 270 (O.C.A.); R. v. R.W., [2001] O.J. No. 2810.

139Justice Feldman then insisted on the contemporary understanding of the increased prevalence of this type of offence at para. 22: "Unfortunately, the incidence of this behaviour appears to be increasing and expanding as technology becomes more sophisticated, encouraging the production of child pornography and greatly facilitating its distribution. The victims are innocent children who become props in a perverted show, played out for an ever-wider audience not only of voyeurs but of perpetrators."

140Further, valuable guidance on the overall philosophy to sentencing in cases in which children are victimized is found beginning at para. 23:

23Since the respondent was sentenced, the Supreme Court of Canada delivered its decision in R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, upholding a sentence of 15 years for an accused who sexually assaulted his four year old daughter and used her and her friend for making child pornography, which he distributed for profit over the internet, and who also possessed a huge collection of other child pornography.

24In his reasons, LeBel J. made an important observation about the proper approach to sentencing in a situation involving multiple charges of sexual assault of a child and making, disseminating over the internet and possessing child pornography at para. 31:

31The judge also correctly understood the close relationship between the offences, the overall situation they gave rise to and the need to impose a global sentence suited to that situation. Viewed as a whole, the crime was complex. The offence of sexual assault was closely connected with three other offences of making, possessing and distributing child pornography that are subject to express sanctions under the Criminal Code. Each aspect of the offender's conduct could be considered only in light of all these charges, viewed as a whole. As Judge Wilhelmy concluded, the global sentence was the crucial factor in determining the sentence in the case at bar.

141In light of the reference to Justice Molloy's judgment in Kwok, it will be of utility to quote from the following paragraphs, with emphasis being assigned to the factors found at para. 7:

5Counsel accurately identified the range of sentence for the crime at issue as being between six and eighteen months. There are cases in which longer terms have been imposed, but those have typically involved either the making and distribution of pornography or a prior criminal record for sexually assaulting children, or both: R. v. E.O., 2003 CanLII 2017 (ON CA), [2003] O.J. No. 563 (C.A.); R. v. Willard, [2004] O.J. No. 4717 (S.C.J.), aff'd [2004] O.J. No. 5585 (C.A.). The main difference between the position taken by the Crown and the defence in the case before me is not so much the appropriate length of sentence, but rather whether it is appropriate that a term of imprisonment be imposed, rather than a conditional sentence to be served in the community.

6It is well recognized in the case law that a primary focus for sentencing in cases of this nature must be denunciation and general deterrence: R. v. Neilly, [2006] O.J. No. 1588 (C.A.); R. v. E.O., 2003 CanLII 2017 (ON CA), [2003] O.J. No. 563; R. v. Stroempl, 1995 CanLII 2283 (ON CA), 105 C.C.C. (3d) 187 (Ont.C.A.). There is case authority to support the position advanced by both parties. There are cases in which a conditional sentence has been found to be sufficiently denunciatory and appropriate in the circumstances: R. v. Cohen, 2001 CanLII 3862 (ON CA), [2001] O.J. No. 1606 (C.A.); R. v. Weber, 2003 CanLII 28579 (ON CA), [2003] O.J. No. 3306 (C.A.); R. v. Schan, 2002 CanLII 41613 (ON CA), [2002] O.J. No. 600 (C.A.). There are cases in which imprisonment has been determined to be the only fit sentence in light of the requirements of deterrence and denunciation: R. v. Neilly; R. v. Kim, 2004 CanLII 32118 (ON CA), [2004] O.J. No. 119 (C.A.); R. v. Lisk, 1998 CanLII 4737 (ON CA), [1998] O.J. No. 1456 (C.A.); R. v. Fox, [2002] O.J. No. 3548 (Ont. C.J.).

7Not surprisingly, each case turns on its own particular facts. However, an analysis of the case law does reveal an emerging consensus on the relevant factors to be taken into account: see, in particular, R. v. Parise, [2002] O.J. No. 2513 (Ont.C.J.); R. v. Mallett, [2005] O.J. No. 3868 (S.C.J.). Generally speaking, any of the following are considered to be aggravating factors:

(i) a criminal record for similar or related offences;

(ii) whether there was also production or distribution of the pornography;

(iii) the size of the pornography collection;

(iv) the nature of the collection (including the age of the children involved and the relative depravity and violence depicted);

(v) the extent to which the offender is seen as a danger to children (including whether he is a diagnosed pedophile who has acted on his impulses in the past by assaulting children);

and

(vi) whether the offender has purchased child pornography thereby contributing to the sexual victimization of children for profit as opposed to merely collecting it by free downloads from the Internet.

Generally recognized mitigating factors include:

(i) the youthful age of the offender;

(ii) the otherwise good character of the offender;

(iii) the extent to which the offender has shown insight into his problem;

(iv) whether he has demonstrated genuine remorse;

(v) whether the offender is willing to submit to treatment and counseling or has already undertaken such treatment;

(vi) the existence of a guilty plea;

and

(vii) the extent to which the offender has already suffered for his crime (for example, in his family, career or community).

ii) The Range Principle and Possession of Child Pornography

142I am mindful that the range is evolving in that Parliament has increased the minimum penalties in this type of case, but that this new "floor" is not relevant to my decision. At all events, the Court is bound to consider the correct range within a process requiring an individualized sanction. In the course of R. v. Berry, 2012 ONCA 621, an endorsement signed by Doherty, Hoy and Pepall J.A., we read: "[4] We do not agree that the trial judge erred in imposing a sentence beyond the settled range. Ranges exist to promote parity. Parity is premised on treating 'like' offenders in a comparable manner. To the extent that the circumstances distinguish an offender, be they mitigating or aggravating from the typical offence, ranges will have less significance. Sentencing is an individualized process. The appellant's extensive and related criminal record and the total absence of anything by way of mitigation drove this sentence somewhat beyond the usual range. We cannot say that the sentence is manifestly unreasonable."

143In addition, I have sought to apply the case of R. v. Gringel, 2012 ONCA 48. Feldman and Watt JJ.A. with Dambrot J. (ad hoc) endorsed these remarks at para. 1: "The appellant appeals his sentence of 15 months for possession of child pornography. The basis of the appeal is that this reflects a sentence closer to the high end than the middle of the appropriate range. The appellant submitted at trial and reiterates here that he should have received the low end of the mid range of 9 – 12 months."

144The Court of Appeal added, at para. 2: "In our view, the trial judge took into account all of the mitigating factors and made no error in imposing a 15-month sentence which is not at the top end of the range. The appellant is to be commended for seeking treatment and recognizing his problem. This factor was considered by the trial judge." Thus, the sentence appeal was dismissed.

145A further factor to consider involves the prevalence of the offence. In light of the fact that no statistical information was filed by the prosecution, I cannot find that the offence in question is becoming more prevalent in this community, or generally within the region. Nevertheless, I am in a position to note that such offences are certainly not any less common judging by the number of pre-trials I took part in at the time of the commission of this offence. In this vein, I note that in para. 26 of R. v. B. (R.), 2013 ONCA 36, Justice LaForme quoted Justice of Appeal Feldman in R. v. Badhwar, 2011 ONCA 266, at para. 44: "To conclude on the issue of the proper range of sentence, although sentencing is always an individualized process of decision-making, where there is prolonged sexual abuse and assault of a child, including penetration, by an adult in a position of trust, the minimum sentence will be five or six years in the penitentiary." Of particular note to the case of Mr. Foley is the passage which follows: "It is important to recall that Feldman J.A. observed that the reason the courts were being called upon to focus on sentencing in this type of case is because of the increasing number of them over the past 20 years. Partly because of this increase, the courts' strict sentencing has evolved to respond to it [...]" Refer to para. 28.

146It is my view that stricter sentencing is required to address this scourge as prior more lenient levels of sanctions do not appear to have resulted in a general lessening of this type of crime. Thus, I would impose a more severe sentence on offenders guilty of this offence today had their offending conduct taken place recently, as opposed to the jail terms I meted out in the recent past. All that being said, greater severity is required in order to repress such crimes, and to check the potential for an increase in this type of offending conduct.

147Indeed, I have considered the endorsement of Moldaver, Feldman and MacFarland JJ.A. in R. v. Nisbet, 2011 ONCA 26, which begins with these words: "[1] Sadly, possession of child pornography facilitated through the internet is on the rise. It is an abhorrent crime that victimizes the most vulnerable members of our society and hence the need for sentences to reflect denunciation and deterrence." [Emphasis added]

148The Court noted at para. 2 that the offender's computer contained "… a number of files which showed children aged 4 to 14 being depicted in all types of sexual activity with other children and adult males. Many of those files bore titles suggestive of child pornography." See para. 2.

149In the result, the Court concluded at para. 3: "The appellant argues that the sentence imposed was too high. We disagree. In our view, a sentence of six months was not inappropriate in all the circumstances of this case. A message must go out that this sort of conduct will not be tolerated…"

m) The Sentence to be Imposed

In the circumstances, in light of the mitigating and aggravating elements found on the record, I sentence Mr. Foley as follows:

a) A jail term of 9 months;

b) A period of probation of twenty-four months, with the optional conditions found at page 6 of the pre-sentence report to further his rehabilitative potential and to reduce even further the risk of further offending conduct, including 100 hours of community service to be performed within the first 12 months of the term of probation;

c) A weapon's prohibition of five years as this represents a violent sexual offence;

d) A s. 161 prohibition under clauses a and b for 3 years from today's date and a 10 year term in respect to clause c;

e) A SOIRA order for 20 years;

f) A DNA order, and

g) A victim fine surcharge of $100.00, to be paid within the next six months.

Renaud, G.