Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
John Freeman
Before: Justice M.M. Rahman
Sentencing Hearing: July 15, 2019
Reasons for Sentence Released: October 7, 2019
Counsel:
- Tina Kim, counsel for the Crown
- Alan Richter, counsel for the offender, John Freeman
Reasons for Sentence
1. Overview
1On October 22, 2018, I found the offender, John Freeman, guilty of two counts of making written child pornography, and two counts of making an arrangement to commit an offence under s. 151 and s. 271 of the Criminal Code.
2One count of making child pornography (count 4) arises out of the offender's online chats in 2016 with an undercover police officer in Victoria, British Columbia. In those chats, the offender counseled the officer, whom he believed to be a mother with a five-year-old daughter, to sexually assault the child. The other child pornography offence (count 1), and the two making arrangement counts (counts 2 and 3), relate to the offender's online communication in 2017 with an undercover Peel Regional Police officer. That officer posed as a mother making her four-year-old daughter available for the offender to abuse.
3The Crown requests that one of the making arrangement counts (count 3, making an arrangement to commit sexual assault) be conditionally stayed and that the offender be sentenced on the remaining three counts.
4The offender argues that the one-year mandatory minimum sentence for the making arrangement offence is unconstitutional. He says that the mandatory minimum sentence is grossly disproportionate both to his circumstances and to the circumstances of a reasonable hypothetical offender. He argues that this court should find that the mandatory minimum sentence violates s. 12, and that he should be sentenced to a total sentence, for all offences, of 12 months. Alternatively, if this court does not find that the mandatory minimum sentence is unconstitutional, he should receive a sentence of no more than two years in the penitentiary.
5The Crown says that the offender should be sentenced to 42 to 48 months in the penitentiary. The Crown argues that this court need not decide the constitutionality of the mandatory minimum sentence, because the range of sentence for the offender's conduct exceeds one year in prison. The Crown also says that this court should impose consecutive sentences for all three offences, including consecutive sentences for the two counts relating to the 2017 Peel Region Police undercover communications. Finally, the Crown requests that court impose a SOIRA order, a DNA order and a s. 161 order.
2. Circumstances of the Offences
6The offender's crimes took place during two different time periods and involved two different undercover police officers. The more recent offences of making an arrangement to commit sexual interference, and making written child pornography (counts 1 and 2), took place during April and May 2017, when the offender communicated online with Peel Police Cst. Caroline Losier. The other offence took place from September through November 2016, when the offender communicated online with Det. Mark MacPhail of the Victoria Police Department. The offender met both undercover officers in an online forum called 0!!!!!!!!!!PEDOMOMS.
2.1. The 2017 Peel Regional Police Occurrence (Counts 1 and 2)
7The offender met Cst. Losier in the online forum mentioned above. The officer was posing as a mother of two, named Karen. After some brief chat in that forum, the offender suggested that they continue communicating through Yahoo messenger. Early on, the offender confirmed with Karen that she was not simply interested in fantasy but a real encounter. Over the next few weeks, the offender described in graphic detail what he wanted to do with Karen's four-year-old daughter and how Karen could groom and prepare her daughter for such an encounter. He eventually made an arrangement to meet Karen for the purpose of abusing her daughter, although he never followed through and attended their arranged meeting.
8The content of the chats between the offender and Karen constitute child pornography because they counselled the commission of sexual offences against a child. The offender recommended that Karen perform various sexual acts on her daughter. He would frequently ask for updates on what Karen had done and whether she was following his advice.
2.2. The 2016 Victoria Police Occurrence (Count 4)
9The offender met Det. MacPhail in the same online forum he met Cst. Losier. Det. MacPhail was posing as a mother named Lizzy, who had a five-year-old daughter. As he did with Cst. Losier, the offender told Lizzy he was not there for fantasy, but was "looking for real." The offender encouraged Lizzy to perform sexual acts with her daughter. He also asked Lizzy if she had told her daughter about him and whether she had asked her daughter about performing various sexual acts with him. The offender also encouraged Lizzy to show her daughter child pornography.
3. Circumstances of the Offender
10The offender is 59 years old and has a minor, dated and unrelated criminal record. He has been with his spouse, Ms Amey, for the past 32 years. They have two children together, both in their twenties. The offender also has two children from a previous relationship but is estranged from them. He has effectively been retired for over 10 years after taking a buyout from his employer, with whom he had worked for over 27 years. Ms Amey remains a supportive spouse. Indeed, she not only testified for the offender at trial, but I have seen her attend court for all significant trial appearances, including the sentencing hearing.
11The offender also relied on a Psychological Risk Assessment Report prepared by Peter Marquis. The assessment concluded, and both parties agree, that the offender is a low risk to re-offend. The offender also seems to have an issue with alcohol, given the amount of alcohol he says he drinks throughout the day. Mr. Marquis did note that the offender's alcohol use may lead to impaired judgment at times. The offender himself reported to Mr. Marquis that he believed his use of alcohol contributed to each of the offences he has committed.
4. Parties' Positions
4.1. Crown's Position
12The Crown argues that the offender should be sentenced to a total of 42 to 48 months imprisonment. Crown counsel, Ms Kim, argues that the offender should receive a total sentence of 24-30 months for the 2017 making arrangement offence and child pornography offences, and an 18-month consecutive sentence for the 2016 child pornography offence. Ms Kim argues that s. 718.3(7) applies to the offender and requires that the child pornography offences be imposed consecutively to the making arrangement charge. She says that, although no actual child was involved, the offence of making an arrangement constitutes an "offence committed against a child" requiring that the sentences run consecutively. She suggested that the sentences be broken down as follows: 12 months on count 1; 12-18 months consecutive on count 2; and 18 months consecutive on count 4. The Crown also seeks the following three ancillary orders: a DNA order, a SOIRA order and a s. 161 order (the latter orders both being for life).
13The Crown also argues that the court need not consider the offender's constitutional challenge to the one-year mandatory minimum sentence, because the sentence that the offender should receive exceeds that minimum sentence. Alternatively, Ms Kim says that the one-year mandatory minimum sentence does not violate s. 12, and is neither disproportionate to this offender or any reasonable hypothetical offender.
4.2. Offender's Position
14The offender argues that the one-year mandatory minimum sentence violates s. 12 of the Charter. Mr. Richter, on behalf of the offender, says that a one-year sentence is grossly disproportionate in both these circumstances, as well as those of a reasonable hypothetical offender. He points out that the offender is an older man who has lived a mostly positive life and who is a low risk to re-offend. Mr. Richter argues that mandatory minimum sentences, by their very nature, hinder the application of the principles of restraint and proportionality. He also argues that mandatory minimum sentences place too much emphasis on the separation of offenders from society, at the expense of the important goal of rehabilitation. He says that the minimum sentence would be crushing to his client's rehabilitation.
15Mr. Richter also says that, though the messages his client sent are clearly disturbing, this was not a longstanding problem that his client had and was a "singular incident." He argues that his client's blameworthiness falls at the lowest end of the spectrum. The offender did not actually show up to the arranged meeting, and was not caught with any additional child pornography, as many such offenders are. Mr. Richter argues that these factors, as well as the fact that no real child was involved, are mitigating when it comes to his client's blameworthiness.
5. Sentencing Principles and Objectives
16Although they are well known and routinely applied in criminal courts, it is helpful to set out the objectives and principles of sentencing.
17The fundamental purpose of sentencing is set out in s. 718 of the Criminal Code:
- 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:
(a) to denounce unlawful conduct and the harm done to victims or the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
18According to s. 718.1 of the Criminal Code, the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The principle of proportionality is central to the sentencing process. Unlike sentencing objectives, whose application and importance may vary depending on the offence and offender, sentencing principles like proportionality apply to all sentences. In R. v. Nasogaluak, the Supreme Court explained the dual role of restraint and censure that proportionality plays in sentencing offenders.
[42] For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused…Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.
19Section 718.2 sets out a non-exhaustive list of secondary sentencing principles that a court must consider in determining the appropriate sentence. Subsection 718.2(a) states that "a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender."
20Finally, ss. 718.2(b)-(e) set out the following four sentencing principles, including parity, totality, and restraint:
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
6. Analysis
21Before determining the appropriate sentence, I will resolve two preliminary issues. First, whether it is necessary to deal with the constitutional challenge; and second, whether s. 718.3(7) of the Criminal Code requires consecutive sentences in this case.
6.1. The Constitutional Challenge is Moot
22I agree with the Crown that it is unnecessary to decide the offender's challenge to the mandatory minimum sentence for the making arrangement offence.
23In R. v. Lloyd, the Supreme Court of Canada held that this court is not obligated to consider a mandatory minimum sentence's compliance with s. 12 where that sentence does not "materially exceed the bottom of the sentence range" applicable to the offender. I find that to be the case here.
24The range of sentence for the offender's conduct here does not fall much below the mandatory minimum sentence (if at all). Indeed, the bottom end of the range appears to be around the minimum sentence itself. At the very lowest, the low end of the range would be nine months' imprisonment. I note that this is the same conclusion that Hockin J. reached in R. v. Wheeler. In Wheeler, Hockin J. found that the range of sentence for the offender was 9 to 12 months. As I will explain in more detail below, the offender's conduct here seems to fall within the mid-reformatory to upper reformatory range.
25Consequently, I find that I do not have to consider the offender's constitutional challenge to the mandatory minimum sentence.
6.2. Consecutive Sentences and the Application of s. 718.3(7)
26The Crown asks this court to impose consecutive sentences for all three offences. In written submissions (filed before the sentencing hearing), the Crown had originally submitted that sentences on counts 1 and 2 (the Peel Occurrence) be concurrent and that only the sentence on count 4 (the Victoria Occurrence) be consecutive. At the sentencing hearing, the Crown raised the application of s. 718.3(7)(a) of the Criminal Code. That provision requires the court to impose consecutive sentences where the court sentences an offender for a child pornography offence and a "sexual offence committed against a child." The Crown says that s. 718.3(7)(a) applies to the offender's circumstances, requiring this court to make the child pornography sentences consecutive to the sentence for making an arrangement. While the offender agrees that the 2016 Victoria Occurrence should be consecutive, he does not agree that s. 718.3(7)(a) applies in these circumstances, because he says a "sexual offence committed against a child" does not include offences committed against a fictional child.
27Whether s. 718.3(7) applies depends on whether the making arrangement offence here constitutes a "sexual offence committed against a child." For ease of reference, the provision is set out below:
(7) When a court sentences an accused at the same time for more than one sexual offence committed against a child, the court shall direct:
(a) that a sentence of imprisonment it imposes for an offence under section 163.1 be served consecutively to a sentence of imprisonment it imposes for a sexual offence under another section of this Act committed against a child; and
(b) that a sentence of imprisonment it imposes for a sexual offence committed against a child, other than an offence under section 163.1, be served consecutively to a sentence of imprisonment it imposes for a sexual offence committed against another child other than an offence under section 163.1
28Ms Kim argues that the phrase "sexual offence committed against a child" does not require an offence to be committed against an actual child. She argues that the purpose of the provision is to capture all sexual offences against children, including those involving someone the offender believes is a real child.
29I cannot accept the Crown's submission that the making arrangement offence here constitutes a "sexual offence committed against a child." In my view, Parliament chose the language "committed against a child" to refer to a sexual offence involving a real child and not a fictional child. That is apparent when one considers the language of s. 718.3(7)(b). That paragraph says that where a court sentences an offender for a sexual offence committed against a child that is not a child pornography offence, it shall impose that sentence consecutively to the sentence "for a sexual offence committed against another child" (emphasis added). The reference to "another child" strongly favours an interpretation that the provision is aimed at offences "committed against" real children as opposed to fictional ones.
30I am fortified in my conclusion by the comments made in the House of Commons by then Minister of Justice, Hon. Peter MacKay when introducing Bill C-26, which would later pass as the Tougher Penalties for Child Predators Act. The Minister said that the purpose of s. 718.3(7) was to ensure that child pornography sentences would run consecutively to sentences for "contact sexual offences."
The purpose of these proposed amendments on consecutive versus concurrent sentencing is to try to bring about a greater sense of consistency and understanding as to when and why consecutive sentences apply to certain circumstances and to certain offenders. In particular, for multiple child sex offences, including child pornography offences, we believe that sentences should not receive a sentencing discount, as it is sometimes described, whereby a court directs that the sentences imposed are served concurrently, meaning that the offender only has to serve the longest sentence that is imposed for a series of convictions.
Put another way, this proposed amendment would require that sentences for child pornography offences and others would be served consecutive to any sentence imposed at the same time when there has been what is called a contact child sex offence or when there have been multiple victims. Sentences imposed at the same time for contact sexual offences committed against one victim would be served consecutively to those imposed for contact sexual offences committed against any other victim.
The bill sends a clear message to child sex offenders that there will be no more discount and that they will serve jail time for each and every victim, each and every offence. We believe this is a just result, given the seriousness of the type of offence and the fundamental injustices that have occurred when there have been multiple victims.
31Where the principal sponsor of legislation deliberately uses the phrase "contact sexual offence" more than once in describing the provision, that statement carries some weight in confirming what seems to be the logical and plain meaning of the provision. I also note that, in the last paragraph excerpted above, the Minister referred to an offender serving jail time "for each and every victim." This appears to be a direct reference to s. 718.3(7)(b), which refers to consecutive sentences where "another child" is involved. Again, the implication of the Minister's remarks is the existence of a real child victim.
32In coming to my conclusion, I have also considered the interpretation of s. 161 of the Criminal Code. That provision, which does apply here, is triggered where an offender is convicted or discharged of certain designated offences "in respect of a person who is under the age of 16 years." That phrase has been interpreted as including offences that do not involve real children. In R. v. Barnes, Stribopoulos J. concluded that a purposive interpretation of s. 161 does not require the commission of an offence against an actual child, since the purpose of the provision was to protect children against the risk posed by offenders who have a sexual interest in children.
[80] Interpreting the words in section 161 (1) – "a person who is under the age of 16 years" – as requiring an actual child would insert an arbitrary distinction into the legislative scheme governing the availability of section 161 orders. Although offenders who commit a listed offence involving an actual child could be subject to a prohibition order, other offenders, who may also pose a significant risk to children, would not be. For example, someone who possessed child pornography in the form of vile animated images, or who committed one of the listed offences by communicating with an undercover police officer who the offender believed to be a child, would be ineligible …. Drawing such a distinction, which lacks any correlation to either an offender's culpability or the threat they pose to children, would give rise to incoherence within the statutory scheme governing section 161 orders. This counsels against reading the words "a person who is under the age of 16 years" as being limited to an actual person. Such an outcome would also be difficult to justify from a purposive standpoint.
[82] In summary, understood in isolation, the plain meaning of the words "a person who is under the age of 16 years" suggests an interpretation that does not reach situations where an offender commits an offence listed in subsection (1.1) by communicating with an undercover police officer posing as a child. But plain meaning alone is not decisive. Read as required by the modern approach, in context, remembering the purpose of section 161, supports an interpretation that makes a prohibition order available to a sentencing judge where an offender commits a listed offence believing that their interlocutor was "a person under the age of 16 years." Importantly, this interpretation best achieves a harmonious reading of the whole of section 161. Accordingly, this is the correct interpretation.
33There is an important difference between the language used in s. 161 and s. 718.3(7). The language of s. 161 – "in respect of a person who is under the age of 16 years" – is broader. It does not use the more direct and specific phrase, "committed against a child." Indeed, the Supreme Court has commented that the words "in respect of" are of the "widest possible scope" and are "probably the widest of any expression intended to convey some connection between two related subject matters."
34More importantly, unlike s. 718.3(7), which has a punitive purpose, the purpose of the s. 161 order is to protect against those who pose a risk to children. As Stribopoulos J. observed in Barnes, even an offender who commits an offence involving a fictional child poses a risk to children and should be subject to an order that prohibits the offender from places and activities where he may come into contact with children. Subsection 718.3(7) serves a different purpose. Its purpose is to increase the punishment an offender receives, ensuring that an offender is punished separately for offences committed against a child and child pornography offences, or two sexual offences against two different children.
35I conclude that s. 718.3(7) does not require the court to impose consecutive sentences where an offender is convicted of a child pornography offence and a sexual offence involving a fictional child.
6.3. The Range of Sentence
6.3.1. The Making Arrangement Offence
36There is a dearth of sentencing cases for this offence. The parties relied on the following four decisions.
37In R. v. Cooper, Miller J. sentenced the offender to four years imprisonment for making an arrangement to sexually assault a four-year-old girl. The offender answered an ad posted by an undercover looking for individuals to meet the girl. The offender described in graphic detail the sexual acts he wanted to perform on the child. He arranged to meet the child's "mother" and was ultimately arrested with a teddy bear, lubricant and condoms. The offender had also already rented a motel room before attending the meeting. The offender was on probation at the time of the offence and had a minor criminal record.
38In R. v. Rodwell, the offender was sentenced to two years for making an arrangement to sexually assault a three-year-old child. The offender met an undercover officer posing as the mother of a child in an online incest chat room. The offender discussed a number of sexual acts with the undercover officer as well as discussing details of the offender's travel to California (where he believed the mother to be). The offender was also found with photographic and video child pornography and a significant amount of written child pornography involving 4000 pages of online chats with other people. He received consecutive two year sentences for making and possessing child pornography (for a total sentence of six years).
39In Wheeler, supra, the offender's constitutional challenge was dismissed, and the trial judge found that the appropriate sentencing range for the offender was between 9-12 months. The actual sentencing portion of the decision did not form part of the transcript of the reported reasons on the constitutional decision.
40Finally, in R. v. Duplessis, Javed J. sentenced the offender to 12 months imprisonment. The offender communicated with an undercover officer posing as the mother of a three-year-old daughter. Over the course of a week, the offender and officer exchanged text messages and agreed to meet so that the offender could assault the child. The two discussed having the child perform sexual acts on both the offender and her mother. The offender was arrested with alcohol, condoms, and sexual paraphernalia, and a doll for the child, shortly before the arranged meeting.
41The moral blameworthiness for an offender who makes an arrangement to sexually assault a child is high, even where, as here, the offender does not follow through on attending the meeting. An offender who makes such an arrangement intends to take the first step towards meeting with an adult and a child for the purpose of committing a sexual offence against that child. The conduct is criminalized for the very reason that it "occurs on the way toward the commission of the designated crimes." Also, as Hockin J. observed in Wheeler, where an offender communicates with someone he believes is the mother of a child, the offender is encouraging the breach of trust in mother's relationship with her child.
42Moreover, the fact that the offence involved a fictional child does not diminish the offender's blameworthiness. I cannot agree with Mr. Richter that the fact that no real child was involved, or at risk of being harmed, is a mitigating factor. The offender believed he was communicating with a real person about abusing a real child. The fact that there was no real child involved does not make the offender any less blameworthy than a drug trafficker who sells drugs to a police officer rather than a real drug addict. While the presence of a real child might have the effect of increasing an offender's sentence, because it would increase the gravity of the offence, the absence of a real child is not a mitigating factor. Miller J. addressed this very point in R. v. Cooper. Miller J. rejected the defence submission that there should be a different range of sentence for crimes involving fictional children because the moral blameworthiness of the offender is the same as if there had been a real child:
In respect of the submission by counsel for Mr. Cooper that courts should be developing two levels of sentence, or different ranges of sentence differentiating between these types of cases in which there are real and fictitious victims, I respectfully disagree. There is room to recognize, as an aggravating factor, tangible harm done to a real victim, which is likely to result in a higher sentence but in my opinion it would be inappropriate to establish distinct ranges of sentences for offences such as these which are inchoate offences. As the Crown pointed out in her submissions, the moral culpability of an individual who engages in this behaviour is the same whether the victim is real or fictitious.
43I agree with Ms Kim that the offender's conduct here falls somewhere between the Duplessis and Rodwell cases. The offender engaged in chats for a longer period of time than in Duplessis and he also encouraged Karen to groom her daughter and sought updates about the progress of that grooming. However, unlike Rodwell, the offender here did not also possess a large amount of child pornography, and was not as involved in the child pornography subculture as Mr. Rodwell was.
44Based on the range of sentence for this offence, and in the interests of parity, I find that the offender's sentence falls in the mid to upper reformatory range.
6.4. The Child Pornography Offences
45The chats with both undercover officers in this case constitute child pornography because they advocate or counsel sexual activity with a child.
46At the outset, it is important to note that the child pornography offences here are subject to a one-year mandatory minimum sentence. That sentence has not yet been found in any reported decisions to be unconstitutional. In R. v. Joseph, McKinnon J. declared that the mandatory minimum sentence of six months imprisonment for making child pornography to be unconstitutional. It stands to reason that if the shorter, six-month minimum sentence violates s. 12, the longer, 12-month sentence also does. The decision in Joseph seems to stand for the proposition that any mandatory minimum sentence exceeding six months for this offence violates s. 12. However, because Mr. Richter submitted that a 12-month sentence would be appropriate for this offence, I need not decide whether I am required to, or should follow the decision in Joseph. As I will explain, I agree that a sentence of at least 12 months is appropriate in any event.
47The parties relied on two sentencing cases involving written child pornography.
48In R. v. Levin, McArthur J. sentenced the offender to 12 months for making written child pornography. He was sentenced to a further 18 months imprisonment for counselling the commission of sexual assault and six months for possession of child pornography. The making child pornography offence involved online chats with an undercover officer who posed as the mother of an eight-year-old girl. The offender created a fictional story about a woman sexually abusing a child with the help of the child's mother. The counselling offences involved the offender instructing the undercover officer how to get her daughter used to sex and to expose the girl to pornography. The offender encouraged the undercover officer to sexually assault the child.
49In R. v. A.R., the offender was sentenced to seven months imprisonment for making written child pornography. He was also sentenced to a further three months concurrent for possession of child pornography. The offender engaged in an online chat with an unknown person on one occasion. The chats involved discussion of "daddy-daughter roleplay and ageplay." The offender also sexualized his two stepdaughters, who were eight and eleven years old, and shared their photographs.
50In the instant case, both of the child pornography offences involve counselling or advocating the sexual assault against a child. The offender was not just writing stories like the offender in A.R. In both cases, the offender was encouraging a mother to engage in sexual activity with her child. In the case of the 2017 offence, he was asked for updates about what Karen had done with her daughter. In the case of the 2016 offence, he encouraged Lizzy to have her child gratify her by penetrating her. He was not just normalizing this conduct in his discussions with the undercover officers. He was actively encouraging both officers, even when they expressed hesitation. Again, as mentioned above, these offences involved the offender encouraging a mother to breach her position of parental trust.
51It is worth repeating that, as with the making arrangement offence, even though no real child was involved, the offender's blameworthiness is significant. As Latimer J. observed in A.R., "the possession of illicit material that does not involve the actual abuse or exploitation of real children remains a grave crime." In the same vein, in Levin, McArthur J. stated that the making child pornography offence "aims to prevent offenders from sending the message that sex with children can and should be pursued."
52I find that the appropriate range of sentence for the child pornography offences is between 12 and 18 months. I find that the sentence for the 2016 Victoria offence should be lower because it did not involve as prolonged or as involved a discussion of abuse as the 2017 Peel offence did.
6.5. The Appropriate Sentence
53The parties agree that the offender should receive a consecutive sentence for the Victoria Police child pornography charge. Where a court imposes consecutive sentences, the totality principle requires that the total sentence not be disproportionate to the offender's overall culpability. There are two ways to give effect to the totality principle. One method involves fixing a sentence for each count, and then adjusting the sentences if necessary. Another method involves identifying the most serious offences or conduct, determining the total or global sentence to be imposed, and then imposing sentences for each offence that add up to the global sentence. The latter method is the one usually followed in this province and approved by the Court of Appeal.
54The 2017 Peel Police Occurrence is clearly the most serious of the two separate offences. I say that both because the offender engaged in longer chats about sexually abusing a child, suggested how the child could be prepared and groomed for abuse, and arranged to meet the child and her mother to carry out the abuse. The 2016 Victoria Police Occurrence, while serious, did not involve as much encouragement and counselling.
55There is no question that deterrence and denunciation are the primary sentencing objectives. The offender's conduct here was serious. These offences call out for a significant sentence to give effect to those important objectives. However, the principle of restraint applies to all offences. The principle of restraint, a component of proportionality, requires a court to impose the shortest sentence that will fulfill the fundamental principle, and objectives, of sentencing. This is also the offender's first sentence of imprisonment. That means that the experience of incarceration for him will likely be more significant and severe than it would be for someone who has been imprisoned before. In my view, a sentence at the high end of the range being suggested by the Crown is beyond what is required to fulfill the principles and objectives of sentencing here.
56Having regard to all of the offender's conduct, I consider a global sentence of 30 months to be appropriate. The offender's conduct is serious enough to warrant a penitentiary sentence, but not as long as the one suggested by Crown counsel, which would be disproportionate in the circumstances.
57I would apportion that sentence among the counts as follows: on the counts of making child pornography and making an arrangement to commit sexual interference (counts 1 and 2), I would impose sentences of 18 months imprisonment on each count concurrent; on count 4, making child pornography, I would impose a sentence of 12 months consecutive.
7. Conclusion
58The offender is sentenced to a total term of imprisonment of 30 months. That sentence results from an 18-month sentence for making arrangement, an 18-month concurrent sentence for making child pornography, and a further 12 months consecutive for the 2016 making child pornography offence.
59I am also imposing the following ancillary orders:
(1) An order under s. 487.051 requiring him to provide a bodily sample today for inclusion of his DNA profile in the DNA databank.
(2) An order under ss. 490.012 requiring him to comply with the Sex Offender Information Registration Act for life.
(3) An order under s. 161 of the Criminal Code for life, prohibiting him from doing the following:
(a) Attending a public park or public swimming area where persons under the age of 16 years are present (except for his grandchildren) or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;
(b) Seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming a volunteer in a capacity that involves being in a position of trust or authority towards a person under the age of 16 years;
(c) Having contact – including communicating by any means – with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate, with the exception of his grandchildren.
Released: October 7, 2019
Justice M.M. Rahman