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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.
Corrected decision: The text of the original judgment was corrected on August 7, 2024 and October 31, 2024, and the description of the corrections is appended.
COURT OF APPEAL FOR ONTARIO
DATE: 20240729
DOCKET: COA-23-CR-1035
Miller, Favreau and Copeland JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Steven Parker
Appellant
Niclas Menzel, for the appellant
Peter Scrutton, for the respondent
Heard: April 5, 2024
On appeal from the sentence imposed on March 31, 2022 by Justice L.E. Chester of the Ontario Court of Justice.
Favreau J.A.:
A. Introduction
[1] The appellant, Steven Parker, was found guilty of making available child pornography, possession of child pornography, failing to comply with a probation order and breaching a prohibition order. Mr. Parker received a sentence of eight years for making available child pornography and a concurrent six-year sentence for possession of child pornography. He also received concurrent sentences of two years each for the failure to comply and breach of a prohibition order convictions. Mr. Parker received two years of Summers credit and no Duncan credit: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575; R. v. Duncan, 2016 ONCA 754.
[2] Mr. Parker seeks to appeal his sentence. He argues that the trial judge erred in principle by failing to have regard to any sentencing range and by failing to apply the jump principle. Mr. Parker also submits that the trial judge erred in his calculation of Summers credit and in refusing to grant Duncan credit.
[3] I agree that leave to appeal the sentence should be granted and that the sentence appeal should be allowed. The offences in this case were very serious, and the trial judge was correct in relying on the Supreme Court of Canada’s decision in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, for the purpose of recognizing that the primary objective in sentencing for child pornography offences is denunciation and deterrence. However, the trial judge failed to consider whether there was parity between the sentence imposed on Mr. Parker and sentences imposed for similar offences in similar circumstances. In addition, the eight-year sentence represented a dramatic jump from Mr. Parker’s previous highest sentence of two years and eight months for similar offences, and, yet, the trial judge did not provide an explanation for this dramatic jump. I would substitute a six-year sentence for the distribution of child pornography conviction, and a four-year sentence for the possession of child pornography conviction. I would also adjust the Summers credit by an additional 47 days, to reflect 1 to 1.5 credit for Mr. Parker’s pre-trial custody. I would not grant any Duncan credit.
B. Background
(1) Circumstances of Mr. Parker’s offences
[4] In 2019, in the context of a child pornography investigation, the police obtained a search warrant and executed a search at Mr. Parker’s residence. The police seized several electronic devices, including laptops, smartphones and hard drives.
[5] The police found 356 images and 30 videos containing child pornography on four of the seized devices. The images and videos consisted primarily of adult men engaging in sexually explicit acts with female children, most of whom were prepubescent and some of whom were toddlers.
[6] The police also found communications between Mr. Parker, using a pseudonym, and two other people that involved the distribution of pornography. In one case, Mr. Parker sent hyperlinks of images and videos to a person who expressed interest in finding child pornography. In the other case, Mr. Parker communicated with someone who identified herself as a 10-year old girl. Mr. Parker asked her whether she liked pornography, to which she responded “what’s porn?” Mr. Parker then replied with an image depicting adult pornography. He then sent an image of an adult male performing a sexual act on a toddler and further explicit and threatening messages.
[7] At the time of the search, Mr. Parker was subject to a probation order that included conditions prohibiting him from accessing social media or peer file sharing networks. He was also subject to a prohibition order that precluded him from using the internet or other digital networks.
[8] At trial, after the Crown presented its evidence, Mr. Parker conceded that he was guilty of the charges of breach of probation and breach of the prohibition order. Based on the evidence at trial, the trial judge also found him guilty of making child pornography available and possessing child pornography.
(2) Sentence imposed on Mr. Parker
[9] At the time of his sentencing, Mr. Parker was 30 years old. He had only obtained two or three high school credits and had not graduated from high school. He was described as suffering from significant learning disabilities.
[10] The pre-sentencing report (the “PSR”) submitted to the trial judge included detailed information about Mr. Parker’s childhood and background. The PSR highlighted the significant neglect and abuse Mr. Parker suffered as a child. Mr. Parker’s parents separated when he was four years old. Initially, he lived with his mother. His mother provided no care to him, and he was physically and emotionally abused by his mother’s boyfriend. He then went to live with his father, who also physically and emotionally abused him. At some point, the Children’s Aid Society became involved, and Mr. Parker was placed in various group homes, where he was yet again the subject of abuse. He later returned to live with his father.
[11] By the time of the trial, both of Mr. Parker’s parents had died. He had no familial or social ties to anyone, other than to his stepmother and her adult daughter. His stepmother was his father’s first wife. She provided information about Mr. Parker’s childhood, including that he had been horribly physically and emotionally abused by his father and probably also exposed to child pornography at a young age by his father. She indicated that she and her children would be prepared to provide support to Mr. Parker and have him live close to them.
[12] The trial judge also received a community impact statement. The statement consisted of testimonials by women who had been sexually exploited as children, and whose images had been used in child pornography. They talked about the trauma of the sexual exploitation and the exacerbation of the trauma due to the ongoing availability of their images on the internet.
[13] At the time of his sentencing, Mr. Parker had a prior record which included offences involving child pornography. On May 9, 2017, Mr. Parker was convicted of possessing child pornography and making available child pornography. He committed these offences in 2012. He received a sentence of two years and eight months and three years of probation. On May 9, 2017, he was also convicted of accessing child pornography between November 20, 2015 and January 5, 2016. He received a sentence of six months and three years of probation for this offence. He committed this offence while he was out on bail on his own recognizance, so he was also found guilty of breach of recognizance.
[14] In his sentencing reasons, the trial judge noted that he was not optimistic about the prospects of deterring Mr. Parker from committing further similar offences, because he was not deterred by the sentence imposed in 2017 which he described as a “considerable period of incarceration”. The trial judge also found that there was a serious risk that Mr. Parker would reoffend.
[15] The trial judge reviewed the circumstances of the offences, describing Mr. Parker’s crimes as “horrible”. He emphasized that the offences involved “hardcore” child pornography, that there were multiple images and videos and that the offences spanned over a six-month period. He viewed the seriousness of the offence as an aggravating factor and noted that the Criminal Code, R.S.C. 1985, c. C-46, requires that offences involving sexual violence against children be treated as an aggravating factor. The trial judge further observed that Mr. Parker did not show remorse or take responsibility for his offences.
[16] The trial judge acknowledged Mr. Parker’s difficult personal history, including his abuse as a child, and viewed this as a mitigating factor. He described Mr. Parker’s life as follows:
I can best describe his life, his background, his history as horrible, traumatic, and chaotic. He has been neglected and abused in many different ways – as a youth, child, teenager, and as a young man.
[17] In his reasons, the trial judge placed significant emphasis on the Supreme Court of Canada’s decision in R. v. Friesen, observing that the starting point for sentences involving sexual offences against children are to be “elevated”. He stated that, given the nature of the “hardcore” pornography in this case, the offences were at the “high-end” of the Friesen factors.
[18] Ultimately, the trial judge imposed a sentence of eight years for the count of making child pornography available. He deducted two years of Summers credit from the eight years, for a net six-year sentence. He then imposed a six-year concurrent sentence for the possession of child pornography conviction. Finally, he imposed concurrent sentences of two years each for the breach of prohibition order and breach of probation order. The trial judge refused to grant any Duncan credit, stating that Mr. Parker was “the author of his own misfortune” regarding the length of his pre-trial custody and that he was already receiving “basically, a full Summers credit.”
C. Issues Raised on Appeal and Analysis
[19] Mr. Parker raises the following two issues on appeal:
a. The trial judge failed to determine the appropriate sentencing range for child pornography offences and failed to consider the jump principle; and
b. The trial judge erred by miscalculating and failing to grant the full Summers credit, and by failing to grant any Duncan credit.
[20] This court owes considerable deference to the trial judge’s sentencing decision. It is only appropriate for the court to intervene if the sentence imposed by the trial judge is demonstrably unfit or if he erred in principle, such that there was a failure to consider a relevant factor or an erroneous consideration of an aggravating or mitigating factor that has had an impact on the sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 44, 51; Friesen, at para. 26.
[21] I am satisfied that the trial judge erred in principle in imposing a sentence of eight years and in his calculation of the Summers credit, and that this had an impact on the sentence. I address both issues as follows.
Issue 1: Did the trial judge err in principle in imposing a sentence of eight years?
[22] Mr. Parker raises two issues in relation to the length of his sentence: (1) the trial judge failed to determine the appropriate sentencing range for child pornography offences; and (2) the trial judge failed to apply the jump principle.
(a) Proportionality and parity
[23] Mr. Parker argues that the trial judge failed to determine the sentencing range that applies to the child pornography offences for which he was convicted. Although I agree that the trial judge erred in this context, I would characterize the error differently. In my view, the trial judge erred in failing to consider whether there was parity between the sentences imposed on Mr. Parker as compared to sentences imposed on similar offenders in similar circumstances.
[24] Before addressing this issue directly, it is important to emphasize the seriousness of the offences in this case. This court has repeatedly stated that denunciation and deterrence are the paramount sentencing objectives for offences involving child pornography: R. v. McCaw, 2023 ONCA 8, 165 O.R. (3d) 179, at para. 28; R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, at paras. 16, 25; R. v. J.S., 2018 ONCA 675, 142 O.R. (3d) 81, at para. 57, R. v. M.M., 2022 ONCA 441, at para. 15. This is consistent with s. 718.01 of the Criminal Code, which provides:
718.01 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.
[25] This is also consistent with the Supreme Court’s decision in Friesen, where the court stated that sentences for sexual offences committed against children must increase in order to denounce the wrongfulness of such conduct and to recognize the serious harm it causes: at para. 74. While the court in Friesen was explicitly dealing with sentencing for the offence of sexual interference and what the court described as closely related offences, namely invitation to sexual touching, sexual exploitation, incest and sexual assault, the court stated that the principles it was establishing should also apply to sentencing for other sexual offences against children: at para. 44. The court acknowledged that technology has created conditions that allow for the proliferation of sexual violence against children, including through the distribution of child pornography, which the court stated “repeats the original sexual violence since the child has to live with the knowledge that others may be accessing the films or images, which may resurface in the child’s life at any time”: Friesen, at para. 48.
[26] In Friesen, the court declined to establish a specific range of sentences for sexual interference and the closely related offences it identified, stating instead that each province should establish its own range: at para. 106. The court nevertheless stated that, regardless of existing sentencing ranges, sentences for violent sexual offences against children should increase to reflect society’s enhanced understanding of the harm caused by these offences. The court also stated that, while it was not establishing a range, “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”: at para. 114.
[27] Mr. Parker argues that it was an error for the trial judge to sentence him to eight years for making child pornography available and six years for possession of child pornography without regard to the sentencing range for child pornography offences in Ontario. In making this argument, Mr. Parker relies on the court’s statement in Friesen that each province should establish its own ranges to suggest that the trial judge should have had regard to the applicable range for offences involving the making available and possession of child pornography in Ontario.
[28] I disagree. It is well established that the failure to refer to or rely on a sentencing range is not an error in principle: Friesen, at para. 37. However, sentencing judges are nevertheless bound by the principles of proportionality and parity. Sentencing judges may commit an error in principle if the sentence imposed does not comply with the principles of proportionality and parity: R. v. Lin, 2020 ONCA 768, 97 C.C.C. 768, at para. 20.
[29] It is a fundamental principle of sentencing that sentences must be proportionate to the gravity of the offence and the responsibility of the offender: Friesen, at para. 30. In addition, parity, an expression of proportionality, requires that “similar offenders who commit similar offences in similar circumstances should receive similar sentences”: Friesen, at paras. 31-33.
[30] In this case, the trial judge had no regard to whether the sentence he imposed on Mr. Parker was proportionate to other sentences imposed for offences involving the making available and possession of child pornography in similar circumstances. The trial judge carefully reviewed the circumstances of the offence, Mr. Parker’s circumstances, and the mitigating and aggravating factors, and concluded as follows:
When I weigh the aggravating and mitigating factors, the aggravating factors far outweigh any mitigation….
I have considered the nature of the offence, the conduct of the accused, the seriousness of the offences, the child torture, the quantity of the images, the quantity of the video tapes, the hardcore nature of most of the material, his criminal record of prior similar offences, and similar offences for breaches. The effect of the change as a result of the impact of Friesen and I have also considered the Community Victim Impact Statement, the harm done to the children depicted in the images and the videos, the harm that was done to them when they were children, the harm done now and the harm that will be done. I have taken that all into consideration.
I have taken into consideration that he has basically thumbed his nose at the prohibition order and the probation order of Justice Green, of May of 2017.
I am satisfied, based on that what I have reviewed and the assessments and in the Pre-Sentence Report and what I heard at trial, he is a risk to re-offend.
[31] The trial judge then went on to impose an eight-year sentence for the conviction for making available child pornography and a six-year sentence for the conviction for possession of child pornography. In imposing these sentences, it appears that the trial judge may have been influenced by the numbers referred to in Friesen for sexual offences against children. As reviewed above, in Friesen, the Supreme Court was explicitly dealing with sentences for sexual interference and the listed related offences. In that context, the court clearly stated that offences involving child pornography are also very serious and that sentencing for such offences should increase in recognition of the wrongfulness of the conduct and the serious harm caused to children. However, the decision cannot be read as suggesting that sentencing for offences involving the making available and possession of child pornography should necessarily be in the same range as sentencing for sexual interference and the other related offences.
[32] More importantly, since Friesen, this court has recognized and endorsed the need to increase sentences for offences involving child pornography but has never suggested that the guidance in Friesen for sexual interference sentences applies directly to sentences for making available or possession of child pornography. I now turn to reviewing six recent decisions of this court that make this point clear.
[33] In R. v. Walker, 2021 ONCA 863, the offender was found guilty of accessing child pornography, possessing child pornography and distributing child pornography. The materials at issue involved prepubescent children, including toddlers, and the offender was found to have made these widely available on a peer-to-peer sharing platform. This court upheld a three year custodial sentence.
[34] In R. v. Olivetti, 2022 ONCA 142, the offender pled guilty to possession of child pornography. The police had found 11,000 images and 88 videos of child pornography on the offender’s hard drive, consisting primarily of depictions of prepubescent girls. The appellant had a prior conviction for sexual offences against children. The trial judge accepted a joint submission for a four year custodial sentence. This court upheld the sentence as fit.
[35] In R. v. Brown, 2022 ONCA 516, the youthful first-time offender was convicted of accessing, possessing and making available child pornography. The trial judge erroneously found there were 2,500 files, when there were in fact 500 relevant files. Many of the files were characterized as “severe”, meaning they depicted sexual violence against children. The offender was sentenced to three years. This court did not interfere with the imposed sentence, as 500 files was considered a very large quantity warranting a significant sentence.
[36] In McCaw, the offender pled guilty to possession of child pornography. When executing a search warrant, the police found seven images and three videos depicting adult men performing sexual acts on male children between the ages of 1 and 12 years old. The offender had previously been convicted twice of distributing and possessing child pornography. This court allowed a Crown appeal of an 18-month conditional sentence and, instead, substituted a custodial sentence of 3 years.
[37] In R. v. M.V., 2023 ONCA 724, 196 O.R. (3d) 321, the offender pleaded guilty to several offences, including sexual interference, child luring and possession of child pornography. This court set aside a global sentence of 8 years because it did not accord with the parties’ joint submission, and instead imposed a sentence of 5.5 years, which included a consecutive sentence of 1 year for possession of child pornography. In his reasons, Paciocco J.A. noted that no range has been established for sentencing for possession of child pornography, but that, generally, post-Friesen sentences varied between one year and three years. He held that the circumstances of the offence in that case fell on the lower end of the spectrum, on the basis of which he concluded that the one year consecutive sentence was appropriate.
[38] In R. v. Covil, 2024 ONCA 292, the offender pled guilty to breaching a prohibition order, mischief and obstructing a peace officer, and he was found guilty of distributing child pornography. The trial judge imposed a global six year sentence. This court found the reasons of the trial judge inadequate, in part because there was no explanation for the marked departure from the sentence imposed in McCaw. The court substituted a global sentence of five years.
[39] I find that it was an error in principle for the trial judge to fail to have regard to whether there was parity between the sentence he imposed and sentences imposed for similar offences in similar circumstances. Of course, as previously noted, this would not be an error in principle if the error had no impact on the appropriate sentence in this case. However, as reviewed above, the eight-year sentence for making child pornography available and the six-year sentence for possession of child pornography far exceed the sentences upheld or imposed by this court since Friesen. The trial judge did not consider these decisions, nor did he provide an explanation for the departure from sentences imposed by this court for making child pornography available and possession of child pornography since Friesen.
(b) Jump principle
[40] I also find that it was an error for the trial judge to have no regard for the jump principle.
[41] The jump principle cautions a court against imposing a dramatically more severe sentence than the sentences imposed upon the offender for similar offences in the recent past, provided the subsequent offence is not significantly more serious: R. v. Borde (2003), 63 O.R. (3d) 417, at para. 39; R. v. Green, 2021 ONCA 932, at para. 11. The court has clearly explained that the jump principle “has little application where the severity of the offender’s crimes shows a dramatic increase in violence and seriousness”: Borde, at para. 39; Green at para. 12.
[42] In this case, the trial judge had no regard to the jump principle nor did he provide an explanation for the substantial increase in Mr. Parker’s subsequent sentence for distributing child pornography from 2 years and 8 months to 8 years.
[43] There are certainly justifications for a significant increase in the sentence in this case. Mr. Parker was a repeat offender who committed the same offences while on probation and while subject to a prohibition order. In addition, Friesen was released between the sentencing for his earlier offences and the sentencing for these offences. However, while these circumstances justified an increase in sentence, even a significant increase, the dramatic increase from 2 years and 8 months to 8 years was not justified, especially since, as reviewed above, it was not rooted in any range or sentences imposed in similar circumstances.
(c) Appropriate sentence
[44] Given that the trial judge made two errors in imposing a sentence of eight years, it falls to this court to impose a fit sentence on Mr. Parker: Friesen, at para. 27. In doing so, the trial judge’s findings of fact, and identification of mitigating and aggravating factors are owed deference: Friesen, at para. 28.
[45] In my view, sentences of six years for making child pornography available and four years for possession of child pornography are appropriate in this case. While these sentences are at the high end or higher than the ones upheld or imposed by this court in the cases reviewed above, they are nevertheless appropriate in this case. They are proportionate to the gravity of the offences and the circumstances of the offender.
[46] As identified by the trial judge, there are numerous aggravating factors in this case:
a. Mr. Parker already had a record for similar offences involving child pornography;
b. Mr. Parker committed the offences while he was on probation for previous convictions involving child pornography and while he was subject to a prohibition order that precluded him from accessing the internet;
c. The prospect that Mr. Parker can be rehabilitated is low and the likelihood that he will reoffend is high;
d. The offences were committed over several months; and
e. Mr. Parker had a large collection of images and videos, which depicted horrendous acts of sexual abuse against prepubescent girls, including toddlers.
[47] The only mitigating factor is Mr. Parker’s abusive childhood.
[48] It is also relevant that Mr. Parker did not plead guilty to these offences. While this is not an aggravating factor, it disentitles him to the mitigating effect of the remorse shown by a guilty plea.
[49] There are significant points of distinction between the other decisions of this court dealing with similar charges that justify the higher sentence to be imposed on Mr. Parker. For example, in Olivetti and McCaw, where the sentences imposed were respectively four and three years, while the offenders also had prior records, they pled guilty and were only convicted of possessing child pornography, not of distributing child pornography. In Walker, this court upheld a three-year sentence for convictions that included distribution of child pornography, but there was no indication that the offender had a prior record.
[50] In this case, while the eight-year and six-year sentences imposed by the trial judge respectively for making available and possession of child pornography were significantly disproportionate to sentences previously imposed, including since Friesen, this does not mean that significant sentences are not appropriate. The six and four year sentences I would impose are significant compared to pre-Friesen sentences for child pornography offences. As such, these sentences recognize the seriousness of the offences and the primacy of denunciation and deterrence. However, at the same time, they respect the parity principle and the jump principle.
[51] Accordingly, I would substitute a sentence of six years for the conviction of making child pornography available and four years for the conviction of possessing child pornography.
Issue 2: Did the trial judge err in the calculation of Summers credit and in refusing to grant Duncan credit?
[52] As mentioned above, the trial judge deducted two years from the eight-year sentence for distribution of child pornography as Summers credit. He refused to give Mr. Parker any Duncan credit.
[53] Mr. Parker argues that the trial judge erred in his calculation of Summers credit. The trial judge gave Mr. Parker 2 years of Summers credit, whereas giving him full Summers credit for pre-trial custody on a 1 to 1.5 basis would have amounted to 2 years and 47 days. The trial judge justified limiting credit to two years and not giving Mr. Parker any additional credit by saying that the delays in getting to trial were caused by Mr. Parker:
And the reason for that is that part of the delay caused in this trial and the time spent in custody falls on his shoulders as well, from time to time. The delays were cause by what he did or didn’t do. And so, that is why I enhanced it to two years, but it didn’t go to the two years one-month.
[54] It is worth noting that the trial judge erroneously started from the premise that the full 1 to 1.5 Summers credit for pre-trial custody amounted to 2 years and 1 month. However, a proper calculation of 1 to 1.5 credit is 2 years and 47 days. Regardless, the trial judge limited Mr. Parker’s entitlement to Summers credit to 2 years.
[55] In any event, it was an error for the trial judge not to grant Mr. Parker full Summers credit. A full Summers rate of credit of 1 to 1.5 is considered to be the general rule: R. v. Evans, 2019 ONCA 715, 147 O.R. (3d) 577, at para. 289; R. v. Hussain, 2018 ONCA 147, 140 O.R. (3d) 593, at para. 20. The rate of credit may be reduced in cases where the Crown demonstrates the detention resulted from the offender's bad conduct or the offender is not likely to obtain early release nor parole: Summers, at para. 71; Evans, at para. 315.
[56] In this case, in explaining the one month reduction, the trial judge cited the fact that the procedural delays were partly “caused by” Mr. Parker. The fact that there may have been a delay in getting to trial because Mr. Parker’s lawyer sought to get off the record or that he originally pled guilty and then successfully changed his plea does not constitute the type of conduct contemplated in Summers, at para. 71, that would warrant reducing the normal pre-sentencing credit.
[57] I would therefore give Mr. Parker additional credit of 47 days, for a total of 2 years and 47 days, and I would apply the now 2-year-and-47-day credit to both the six-year sentence for the making available child pornography conviction and the concurrent four-year sentence for the possession of child pornography conviction to ensure that Mr. Parker receives the benefit of the additional credit in the sentence calculation.
[58] It was not an error for the trial judge not to grant Duncan credit. Duncan credit is discretionary and entitled to deference on appeal: R. v. U.A., 2019 ONCA 946, at para. 15; R. v. McLean, 2023 ONCA 835, at para. 4. The trial judge explicitly considered and rejected granting additional credit beyond the Summers credit. He explained that he declined Mr. Parker’s claim for enhance credit because he was the “author of his own misfortune” with regards to the length of time of custody. Mr. Parker has not identified any error in principle that would justify reversing the trial judge’s decision not to grant Duncan credit.
D. Disposition
[59] I would grant leave to appeal the sentence, and allow the sentence appeal. I would substitute a six-year sentence for the eight-year sentence on the making available child pornography conviction and a four-year sentence for the six-year sentence for the possession of child pornography conviction. The credit to be applied for pre-trial custody is to be increased by 47 days to 2 years and 47 days, and this credit is to be applied to both the six-year sentence and the four-year sentence.
Released: July 29, 2024 “B.W.M.”
“L. Favreau J.A.”
“I agree. B.W. Miller J.A.”
“I agree. J. Copeland J.A.”
Corrections made on August 7, 2024: In the only sentence of paragraph 57, the following was added to the end of the sentence: “, and I would apply the now 2-year-and-47-day credit to both the six-year sentence for the making available child pornography conviction and the concurrent four-year sentence for the possession of child pornography conviction to ensure that Mr. Parker receives the benefit of the additional credit in the sentence calculation”. In the second sentence of paragraph 59, the following was added to the end of the sentence: “on the making available child pornography conviction and a four-year sentence for the six-year sentence for the possession of child pornography conviction”. In the third sentence of paragraph 59, the words “to the sentence” were replaced with “for pre-trial custody” and the following was added to the end of the sentence: “to 2 years and 47 days, and this credit is to be applied to both the six-year sentence and the four-year sentence”.
Correction made on October 31, 2024: In the fifth sentence of paragraph 13, the date “January 5, 2021” was changed to “January 5, 2016”.
