WARNING

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

An order restricting publication in this proceeding under ss. 486.4 or 486.6 of the Criminal Code shall continue. These sections of the Criminal Code provide:

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

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

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

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

(a) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

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

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

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

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

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

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

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

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

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

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(c) a warning to the individual is not appropriate.

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

COURT OF APPEAL FOR ONTARIO

DATE: 20240228

DOCKET: COA-22-CR-0044

van Rensburg, Benotto and Copeland JJ.A.

BETWEEN

His Majesty the King

Appellant

and

C.B.

Respondent

Counsel:

Lisa Henderson, for the appellant Brian Snell, for the respondent

Heard: June 8, 2023

On appeal from the sentence imposed on July 26, 2022 by Justice Joseph A. De Filippis of the Ontario Court of Justice, with reasons reported at 2022 ONCJ 345.

van Rensburg J.A.:

A. INTRODUCTION

[1] This is a Crown appeal of an 18-month custodial sentence imposed on the respondent, C.B., who pleaded guilty to sexual offences in relation to two child victims, a five-year-old boy, J.P., and a one-year-old girl, N.H., that took place when C.B. was 18 years old.

[2] For the reasons that follow, I would grant leave to appeal sentence and dismiss the Crown’s sentence appeal.

B. FACTS

(1) The Guilty Plea

[3] C.B. pleaded guilty to one count each of making child pornography, distributing child pornography, and voyeurism. The convictions for making and distributing child pornography related to various images C.B. took of J.P and a photo of N.H. that she sent to her internet boyfriend, N.G., on April 27, 2021, while the conviction for voyeurism was in relation to the photo of N.H. The Crown withdrew several other charges, including sexual interference, sexual assault and voyeurism in relation to J.P.

[4] The facts to which the respondent pleaded guilty were read into the record at the sentencing hearing and are set out in the following paragraphs.

[5] C.B.’s mother ran a daycare out of the home where she lived with C.B. On April 27, 2021, J.P., who is C.B.’s cousin, was at the home and went to C.B.’s bedroom. C.B. was using her cell phone to communicate with her internet boyfriend N.G. over an unknown social media platform. N.G., with C.B., instructed J.P. to remove all of his clothing. C.B. took photos and other visual images of J.P., specifically of his penis and buttocks while he was naked, and sent them to N.G. using the same internet-based platform over her cellphone. In order to take the pictures, C.B. touched J.P. to assist in removing his clothes, and she directed J.P. so that the pictures could be taken.

[6] Later that day, J.P. told his parents what happened, and the incident was reported to the police. J.P. told police and his parents that he had to “listen to [C.B.] because she needed to take pictures of [him]”. C.B. and N.G. told J.P. to keep what had happened in the bedroom a secret.

[7] C.B.’s cell phone and laptop computer were seized by the police. On them, the police located multiple digital images of J.P who was naked, and photos and other files where his penis and buttocks were the main focus of the images. The photos and other files had been created on April 27, 2021. It was confirmed, with the assistance of the FBI, that the images were sent as datafiles to N.G., who was investigated and arrested in Kentucky shortly after these incidents were reported.

[8] Other files located on C.B.’s phone included a photo, also taken on April 27, 2021, of the bare buttocks of N.H., while she was having her diaper changed. There were additional images of J.P. from early April 2021, including a video and photos of him coming out of a shower.

[9] C.B. was arrested on May 4, 2021. N.G. was charged with several offences in the U.S., and pleaded guilty to sexual exploitation of J.P. At the time C.B. was sentenced, N.G. was expected to be sentenced in July 2022, and the court was advised that he was expected to face a custodial sentence of between 20 and 30 years. [1]

(2) The Sentencing Hearing

[10] The parents of J.P. and N.H. provided victim impact statements, attesting to the significant harm to the children and their families as a result of the offences. The victim impact statement in respect of J.P. spoke of the physical and emotional effects on J.P. and the effect on his parents from abuse by a family member. The victim impact statement of N.H.’s mother expressed a loss of trust and security with respect to anyone watching her children and the stress of losing a daycare provider.

[11] There was a pre-sentence report that spoke to C.B.’s personal circumstances, her motivation for committing the offences, and her remorse. C.B. had no criminal or youth record and she had complied fully with the terms of her release. C.B.’s sister and mother reported that C.B. had been sexually touched as a three-year-old by her stepbrother, for which she had not received any counselling. There was tension in her home as a result of her parents’ conflict and separation. She had anxiety, depression, suicidal ideation and Tourette’s syndrome, and she had been cutting herself. She had started mental health counselling, and she had the support of her mother and sister. C.B. did not use drugs or alcohol. She admitted full responsibility for her actions, and explained they were the result of trying to remain connected with a man she had strong feelings for. She recognized the hypocrisy of victimizing another when she had been victimized as a child.

[12] The Crown, relying on the principles articulated by the Supreme Court in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, sought a global sentence of five years’ imprisonment. The Crown urged the court to focus on the gravity of the offences and the harm to the victims based on the various images and recordings that the sentencing judge had reviewed, and the victim impact statements. The Crown asserted that denunciation and specific and general deterrence were the paramount considerations, and that a five-year sentence would take into consideration C.B.’s rehabilitation and the relevant mitigating factors of her guilty plea, youth, difficult childhood and the fact that N.G. had likely taken advantage C.B.’s personal circumstances. The Crown submitted that C.B. was in a position of trust despite not being an employee of the daycare, because she was J.P.’s cousin.

[13] Defence counsel submitted that an appropriate global sentence would be less than two years, and that even a sentence of that duration would be a severe punishment for someone C.B.’s age. Defence counsel asserted that rehabilitation should also be an important concern in this case, and that a five-year sentence would serve no useful purpose and would not assist in C.B.’s rehabilitation.

[14] It was agreed that a probation order was warranted and that DNA and SOIRA orders were mandatory. It was also agreed that a prohibition order under s. 161 of the Criminal Code would be imposed.

[15] C.B. addressed the court. She was crying when she spoke. She said she wanted to apologize, that she really did not want to do this and that she knew how stupid she was.

(3) Sentencing Reasons

[16] The sentencing judge referred to the circumstances of the offences. He noted that C.B. was a young woman without a criminal record. She had met a man from Kentucky online and at his instruction she photographed a baby while her diaper was being changed at a daycare centre operated by her mother from their home. She also took several photographs and a video of her cousin who was five years old when he was being babysat at her home the same day and on earlier occasions. She was not employed by the daycare but was helping other staff on the day in question.

[17] The sentencing judge described the images, which he had viewed in his office: there was a video of a naked boy jumping on a bed, several photos of a naked boy holding his penis (obviously instructed to do so) and close-up shots of his penis and testicles; several photos of a boy’s naked buttocks; and one photo of C.B. spreading a boy’s buttocks. There was also an audio recording in which C.B., apparently on the telephone to N.G., had apparently been directed to masturbate the boy and said, “You are going to make me jack him? Fuck, fuck, fuck!” [2]

[18] The sentencing judge referred to the circumstances of C.B.: that she had been touched inappropriately by her stepbrother when she was three years old; that her parents had marital problems that caused immense tension in the home, as a result of which, together with the criminal proceedings, C.B. had resorted to cutting herself to deal with anxiety; and that she reported suicidal thoughts.

[19] The sentencing judge referred to the victim impact statements. He noted that the mother of N.H. had lost trust in others around her children and had many nights when she cried herself to sleep. He also noted that the parents of J.P. described in detail the physical and emotional effects on him and other members of the family as a result of the sexual abuse and exploitation of their young son across an international border.

[20] The sentencing judge set out the relevant principles. He stated that the cardinal principle of sentencing is proportionality: that the severity of a sentence will depend on the seriousness of the offence and the moral blameworthiness of the offender, and that personal circumstances are relevant to proportionality, but that they do not alter the seriousness of the offence. He noted that making available child pornography warrants longer sentences because allowing others to observe the images contributes to further victimization of the children. He also observed that, since the offences involved the abuse of a person under 18 years of age, he must give primary consideration to the objectives of denunciation and deterrence, and that in applying these principles he was guided by Friesen.

[21] The sentencing judge set out the positions of Crown and defence counsel. The Crown sought a five-year prison term, asserting that it would be an error to elevate the appellant’s personal circumstances above the principles of denunciation and deterrence. The Crown suggested that the five-year sentence would account for the fact that C.B. was a young first offender.

[22] Defence counsel emphasized rehabilitation and suggested that a reformatory sentence of less than two years would address the principles of denunciation and deterrence for C.B. Defence counsel reiterated many of the facts set out in the pre-sentence report, including C.B.’s age, mental health issues, and past experiences.

[23] The sentencing judge acknowledged that the decisions referred to by the Crown reflected the Supreme Court’s message that mid-single digit penitentiary terms for sexual offences against children are to be the norm, and that upper-single digit and double-digit terms should be neither unusual nor reserved for rare or exceptional circumstances. He stated, “[h]owever, neither Friesen nor the subsequent cases brought to my attention concern an offender like the one before me; an 18-year-old at the time of the offence (without a criminal record, who pled guilty).”

[24] The sentencing judge referred to the principle of restraint with respect to young first offenders recognized in R. v. Priest (1996), 30 O.R. (3d) 538, R. v. Beauchamp, 2015 ONCA 260, 326 C.C.C. (3d) 280, and R. v. Randhawa, 2020 ONCA 668.

[25] The sentencing judge observed that jail was required to address the seriousness of the offences, including the harm caused to the victims. Having considered what the Supreme Court said in Friesen and what this court said about young first offenders, he concluded that the right sentence was 18 months in a provincial reformatory for each count, to be served concurrently, followed by probation for a period of three years on terms including reporting to a probation officer, taking counselling as directed, and having no contact with the victims or their immediate families. He made a DNA order, an order under s. 161 of the Criminal Code for life, and a SOIRA order for life. [3]

C. DISCUSSION

[26] Appellate courts must generally defer to sentencing judges’ decisions. The appellate court can only intervene to vary a sentence if (1) the sentence is demonstrably unfit or (2) the sentencing judge made an error in principle that had an impact on the sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at paras 48, 41; Friesen, at paras. 25-26; R. v. Bertrand Marchand, 2023 SCC 26, at para. 50.

[27] The Crown contends that there were errors justifying appellate intervention in this case. The Crown submits that the sentencing judge erred (1) in elevating C.B.’s age and rehabilitation potential above the paramount considerations of denunciation and deterrence; (2) in failing to recognize that the offences against J.P. were in breach of trust; and (3) in failing to impose consecutive sentences for the offences relating to the two victims. Overall, the Crown asserts that the sentence C.B. received was manifestly unfit. The Crown contends that this court should allow the appeal and impose a sentence of five years’ imprisonment.

[28] The respondent argues that the sentence C.B. received attracts deference. There were no reversible errors, and it was a fit sentence in all the circumstances. A custodial sentence of 18 months is a significant sentence for someone C.B.’s age, and the sentence proposed by the Crown at first instance and now would have been crushing. Contrary to the Crown’s submission, the sentence did not depart from the principles outlined in Friesen, which recognizes that other sentencing principles continue to play a role in sentencing for child sex offences. The respondent also submits that the trial judge did not err in failing to find as an aggravating factor that C.B. was in a position of trust in relation to her victims, and that, in the context of the global approach to sentencing, even if the trial judge departed from the statutorily mandated requirement to impose consecutive sentences, the overall sentence would not have been any different.

[29] I would not interfere with the sentence in this case.

[30] First, I do not agree that the sentencing judge failed to give meaningful effect to the teachings of Friesen. There is no question that denunciation and deterrence are the most important sentencing objectives in child sexual offence cases, including child pornography, and must be given primary consideration: Criminal Code, s. 718.01; Friesen, at paras. 44, 101, and fn. 2. Friesen also recognizes, however, that factors that might reduce an offender’s moral culpability continue to be relevant in child sexual offence cases. The Court stated that the proportionality principle requires that punishment be “just and appropriate … and nothing more”, observing that an offender’s conduct will be less morally blameworthy in some cases than in others, and that the personal circumstances of offenders can have a mitigating effect: at para. 91. The Court noted that, while deterrence and denunciation have priority, the sentencing judge retains discretion to accord significant weight to other factors, including rehabilitation, in exercising discretion in arriving at a fit sentence in accordance with the overall principle of proportionality: at para. 104. See also Bertrand Marchand, at para. 28.

[31] In R. v. B.M., 2023 ONCA 224, a case relied on by the Crown, this court overturned a conditional sentence imposed on an offender whose offences commenced when he was 18 years old, and substituted a custodial sentence of seven years less time served on the conditional sentence. The trial judge had erred in failing to give effect to the primary sentencing objectives of deterrence and denunciation in cases involving sexual offences against children and had elevated the consideration of collateral immigration consequences and the respondent’s rehabilitative prospects above the statutorily required primary sentencing objectives: at para. 12. The Crown contends that the same occurred in this case.

[32] I disagree. In B.M. the trial judge’s reasons did not advert to the priority of denunciation and deterrence. And there were other errors, including the trial judge’s conclusion that there was a significant causal connection between the respondent’s mental illness and his criminal conduct, which was not supported by the evidence. The two-year conditional sentence was also manifestly unfit where the offences involved four years of sexual interference, including repeated acts of anal and vaginal penetration of two children who were groomed and exploited while the respondent lived in their home, and they were entrusted to his care.

[33] In this case, by contrast, the sentencing judge explicitly adverted to the need to give primary consideration to the objectives of denunciation and deterrence, and the principles from Friesen. He also recognized the principle of restraint in dealing with young first offenders, noting that he did not consider the strong message in Friesen to displace this principle.

[34] This was not an error. As noted above, Friesen specifically recognizes that, while deterrence and denunciation have priority in child sexual offences, the sentencing judge retains discretion to consider factors mitigating moral culpability and to accord significant weight to other sentencing objectives, including rehabilitation. See also R. v. M.V., 2023 ONCA 724, where Paciocco J.A., in allowing an appeal of an eight-year sentence for sexual interference and child luring and related charges, observed that an offender’s guilty plea, expressions of remorse and rehabilitative efforts, and the principle of restraint in sections 718.2(d) and (e) continue to be relevant in sentencing child sex offenders: at paras. 70-71, 83. And, contrary to the submissions of the Crown, I do not read the sentencing judge in this case as having made the error identified in R. v. T.J., 2021 ONCA 392, of having given priority to the personal circumstances of the offender while paying little attention to the harm suffered by the victim. The trial judge addressed the respondent’s personal circumstances only after acknowledging in some detail the harm to the victims and addressing the serious circumstances of the offences.

[35] The Crown also contends that the sentence was unfit because it was less than the five-year sentence received by K.R., who (in unrelated charges) was sentenced by the sentencing judge the same day as C.B., and whose case had been described by the judge as “similar” (see the reasons for sentence in R. v. K.R., 2022 ONCJ 344). According to the Crown the only difference between the two cases was in the age of the offenders at the time of the offences.

[36] I disagree. The circumstances of the offences and the offenders in the two cases warranted different sentences. Although both offenders were involved online with child predators, K.R. was 30 years old when she was arrested. K.R. had made and sent to her online friend pornographic images of two of her children over a period of 20 months. There were photos of her and the children naked, messages about teaching the children to masturbate and claiming that she had assisted her son in masturbating, and images of the children dancing naked in front of one another. Indeed, the sentencing judge, after providing his reasons in both cases, briefly explained why he had imposed different sentences in the two cases.

[37] Second, I turn to the Crown’s submission that the trial judge erred in failing to take into consideration in sentencing C.B. that she was in a position of trust with the victims. Section 718.2(a)(iii) of the Criminal Code identifies abuse of trust or authority as an aggravating factor in sentencing. The Crown points to numerous authorities where courts have found serious breaches of trust in relation to child victims by daycare providers (see, e.g., R. v. S.C., 2019 ONCA 199, 145 O.R. (3d) 711, leave to appeal refused, [2019] S.C.C.A. No. 38625), volunteers (see, e.g., R. v. Stuckless, 2019 ONCA 504, 146 O.R. (3d) 752), and offenders who were related to their victims (see, e.g., R. v. R.H., 2021 ONCA 236 and R. v. P.S., 2019 ONCA 637).

[38] In this case, although Crown counsel at the sentencing hearing initially argued that C.B. was in a position of trust because she was J.P.’s cousin and an employee of her mother’s daycare, in the course of the hearing he corrected himself and stated that C.B. was not in fact an employee. In his sentencing reasons the judge did not make reference to whether C.B. was or was not in a position of trust. After reading out the sentence for K.R., however, he noted, as a distinguishing feature, that, as her victims’ mother, K.R.’s actions were an egregious breach of trust.

[39] Whether a person stood in a relationship of trust or authority in relation to a victim is a question of fact, which is entitled to appellate deference unless it is shown that the finding rests on an error of law or principle: R. v. Aird, 2013 ONCA 447, 307 O.C.A. 183, at para. 31; R. v. R.D., 2020 ONCA 23, at para. 48. The facts read in and admitted in support of C.B.’s guilty pleas did not include an admission that she was in a position of trust towards either child. As an aggravating factor in sentencing, a breach of trust would have to be established by the Crown beyond a reasonable doubt.

[40] In the circumstances of this case, it was not, in my view, an error for the sentencing judge to fail to make a finding that C.B. was in a position of trust with respect to either or both of the child victims, or to identify this as an aggravating factor. C.B. was not an employee of the daycare, and other than the statement that she “sometimes helped out” at the daycare, there was nothing in the facts read in at the guilty plea hearing to indicate that she was providing care to either victim at the relevant times, or how she came to be in their presence when she created the child pornography. Although C.B.’s family relationship to her younger cousin might have provided a basis for a finding of a breach of trust, there was no evidence in this case about that relationship that would mandate a finding that C.B. was in a position of authority or trust in relation to J.P. at the time of the offences.

[41] Finally, the Crown submits that the sentencing judge erred when, after imposing sentences of 18 months for each count, he directed the sentences to be served concurrently. The Crown asserts that consecutive sentences were appropriate and warranted under common law because C.B. engaged in separate and distinct acts involving two different victims at different times. The Crown also relies on s. 718.3(7) of the Criminal Code which requires sentences for child pornography to be served consecutive to any other sexual offence against a child.

[42] I would not give effect to this ground of appeal.

[43] Dealing first with the Crown’s common law argument, I note that all of the submissions at the sentencing hearing were based on a global sentence for C.B.’s offences in relation to both victims, without reference to the allocation of the sentence between the offences, and whether the sentences for particular offences would be served consecutively or concurrently. The Supreme Court, in Bertrand Marchand, has recently directed that the preferred approach to sentencing in respect of child sexual offences is to determine a fit sentence for each offence, and then to impose consecutive sentences, subject to the principle of totality, in which case the sentences can be made concurrent (except where consecutive sentences are required by statute), or individual sentences can be reduced to achieve a just and appropriate sentence: at para. 99. Nevertheless, it was not an error for the trial judge to fix the global sentence first, and then to assign sentences for each individual offence, designating them concurrent or consecutive to fit within the already determined global sentence: see R. v. Jewell (1995), 83 O.A.C. 81; R. v. Ahmed, 2017 ONCA 76, 136 O.R. (3d) 403; and R. v. J.H., 2018 ONCA 245. As in J.H. (which involved the appeal of concurrent sentences for offences against more than one child victim), while I would not endorse the sentencing judge having applied concurrent sentences across the board without differentiating between the conduct underlying the counts, I am not persuaded that the overall sentence was unfit: see J.H. at paras. 51, 53.

[44] Turning to the sentencing judge’s failure to comply with the requirements of s. 718.3(7), I agree that the strict application of this provision would have required a consecutive sentence for the voyeurism offence. I would not, however, rely on s. 718.3(7) to interfere with the sentence in the circumstances of this case. First, C.B. has served the custodial portion of her sentence. Second, I have determined that there was no reversible error in the overall global sentence of 18 months, and that the sentence is fit. Finally, considering the particular circumstances of the offences, the sentencing submissions and the sentencing judge’s reasons, I am confident that, had the sentencing judge turned his mind to the statutory requirement, he would have applied the principle of totality and allocated the global sentence between the child pornography offences and the voyeurism offence, or, because the same facts supported the offences in relation to N.H., he would have considered whether the voyeurism conviction should be conditionally stayed under Kienapple v. The Queen, [1975] 1 S.C.R. 729.

D. DISPOSITION

[45] For these reasons, although I would grant leave to appeal the sentence, I would dismiss the appeal.

“K. van Rensburg J.A.”

“I agree. J. Copeland J.A.”

Benotto J.A. (dissenting):

[46] I respectfully disagree with my colleague and would allow the appeal.

[47] In my view, the sentencing judge erred in principle by giving priority to the offender’s age thereby diminishing what should be the primary sentencing objectives of denunciation and deterrence. The sentencing judge further failed to address important factors demonstrating the offender’s heightened moral blameworthiness – particularly that one of the child-victims was a family member. In the result, the sentence imposed of 18 months for making and distributing child pornography is demonstratively unfit.

I. The primary sentencing objectives

[48] Child pornography is a vile crime that victimizes the most vulnerable members of society and causes them, their families and society lasting trauma. For decades, courts have recognized this. In R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at para. 92:

The 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.

[49] The long-lasting corrosive effects of child pornography permeate the family and society: see R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 61-64. Parliament and the courts have been clear that when sentencing for offences against children, the primary objectives are denunciation and deterrence.

[50] Section 718.01 of the Criminal Code provides:

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.

[51] This provision requires that the sentencing judge not elevate other sentencing principles to displace denunciation and deterrence. In Friesen at para. 104:

Section 718.01 thus qualifies this Court’s previous direction that it is for the sentencing judge to determine which sentencing objective or objectives are to be prioritized. Where Parliament has indicated which sentencing objectives are to receive priority in certain cases, the sentencing judge’s discretion is thereby limited, such that it is no longer open to the judge to elevate other sentencing objectives to an equal or higher priority… [Emphasis added.]

[52] Sentencing judges are required to reflect the recognized harm to children and their families with significant sentences, as outlined at para. 76 of Friesen:

Courts must impose sentences that are commensurate with the gravity of sexual offences against children. It is not sufficient for courts to simply state that sexual offences against children are serious. The sentence imposed must reflect the normative character of the offender’s actions and the consequential harm to children and their families, caregivers, and communities.

[53] And sentences can and should depart from prior sentencing ranges as the Court stated at para. 114 of Friesen:

That message is that mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances.

[54] With these principles in mind, I turn to the reasons by the sentencing judge.

II. Reasons of the sentencing judge

[55] The sentencing judge made two errors in principle in sentencing the offender: (i) he failed to give effect to the heightened moral blameworthiness of the offender; and (ii) he elevated her youth to higher priority than denunciation and deterrence.

a) Moral blameworthiness of the offender

[56] The sentencing judge failed to address several aggravating factors which elevate the moral blameworthiness of the offender. The most significant is that the 5-year-old victim was her cousin. The child was at a daycare operated by the offender’s mother in their home.

[57] The sentencing judge determined, because the offender was not an employee in her mother’s daycare, she was not in a position of trust. He did not address the fact that she was a family member. When sexual violence against children is committed by a family member, the violence is often accompanied by breach of a trust relationship. Family members are in “classic breach of trust situations”: Friesen paras. 60, 126.

[58] Courts have repeatedly found that family members are in a position of trust, including this court in R. v. R.H., 2021 ONCA 236, where the offender was a cousin of the victim’s stepfather; and R. v. P.S., 2019 ONCA 637, where the offender was a cousin to the victim’s son.

[59] In R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, at para. 28, (cited in Friesen) this court referred to R. v. Audet, [1996] 2 S.C.R. 171, and set out a test for a position of trust in the context of the offence of sexual exploitation (which has a position of trust as one of its elements). Laskin J.A. listed the following as factors that may suggest a position of trust, at para. 28:

• The age difference between the accused and the young person;
• The evolution of their relationship;
• The status of the accused in relation to the young person;
• The degree of control, influence or persuasiveness exercised by the accused over the young person; and
• The expectations of the parties affected, including the accused, the young person and the young person’s parents.

[60] The victim here was 5 years old. He was dropped off at the offender’s home where the offender’s mother (the victim’s aunt) operated a daycare. The child was in the offender’s bedroom where he did what she told him to do. He told police and his parents he “had to” listen to his cousin. He was also told to keep what happened “a secret”. The child now does not understand “why his family hurt him.” His mother referred to the fact that he was “sexually abused and internationally exploited by a family member.” Both the 5-year-old child and the baby’s mothers believed that their children would be safe at the daycare.

[61] The sentencing judge referred to none of the factors listed in Aird. Whether or not he would have concluded that there was in fact a trust relationship, the familial relationship, akin to that of trust, is a significant aggravating factor.

[62] Nor did the sentencing judge consider other aggravating factors including that:

• The offender clearly understood the sexual nature of the poses she was putting the child in. This was evident from her reaction when asked to masturbate the child;
• She took 82 photos and a video;
• She photographed the baby (not her cousin) while she was having her diaper changed;
• The photos show her hands touching the children;
• She abused the children for her own selfish reasons: to accommodate a man she had never personally met;
• She sent the photos across the border to the U.S. be distributed.

[63] These were aggravating factors that should have been considered in the sentence.

b) Failure to prioritize denunciation and deterrence

[64] Although the sentencing judge referred to Friesen, he did not give effect to its directives. Instead, he concentrated on the age of the offender. He said:

In R v Priest it was held that in the case of a first offender, the court should explore all other dispositions before imposing a custodial sentence and that if a custodial sentence is appropriate, a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence. This principle of restraint with respect to young first offenders was reiterated by the Court of Appeal for Ontario in R. v. Beauchamp, 2015 ONCA 260 and again, more recently, in R v Randhawa 2020 ONCA 668.

None of these cases I cite in the previous paragraph involved the sexual abuse of children. However, I do not consider the strong message in Friesen to displace the established principle of restraint when dealing with a youthful first offender.

[65] That the sentencing judge gave the offender’s age a higher priority that effectively overcame denunciation and deterrence can be demonstrated by the sentence imposed on another offender sentenced the same day. The sentencing judge advised counsel that he received a guilty plea to similar charges by another woman, also without a criminal record. He advised all counsel that he would hear submissions with respect to both cases before deciding sentence and delivering reasons.

[66] He sentenced that other offender, K.R., to five years. In oral reasons he distinguished the cases as follows:

The offences committed by [C.B.] are similar to those committed by [K.R.] who I just sentenced to five years. The greatly different sentence needs to be explained, and it is in the reasons, but I will make two brief oral comments. Unlike [C.B.], [K.R.] engaged in an egregious breach of trust because she sexually interfered with her own children to create and distribute child pornography and she was 30 years old. [C.B.] sexually interfered with the victims, with one victim. There are two, but one she has sexually interfered with to create and distribute child pornography, but she was not in a position of trust and, significantly, she was 18 years old at the time. The law is clear that a youthful first offender is treated differently than others. There is a principle of restraint, and in applying that principle I have determined that the appropriate sentence is 18 months and not a penitentiary sentence the Crown sought. That will be followed by three years of probation. [Emphasis added.]

[67] The only distinguishing feature is the breach of trust and the age.

[68] These two errors in principle resulted in a sentence imposed that is demonstratively unfit.

c) Fit sentence

[69] The sentence of five years for the similar offence with a guilty plea in the K.R. case is in the range of appropriate sentences. To reflect this offender’s youth in a proportionate way, and give the principle of restraint the appropriate weight, and having regard to the aggravating factors, a fit sentence here is three to four years.

III. Conclusion

[70] I would grant leave to appeal, allow the appeal and impose a sentence of three and a half years.

Released: February 28, 2024 “K.M.v.R.”

“M.L. Benotto J.A.”

Footnotes

[1] N.G. received a sentence of 240 months (twenty years) in jail on December 20, 2022.

[2] There was no evidence to suggest that C.B. had masturbated J.P.

[3] Following the release of the Supreme Court of Canada’s decision in R. v. Ndhlovu, 2022 SCC 38, the SOIRA order was amended on consent to reflect a registration term of 20 years.