WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 212, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct 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) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
18-15001143
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
DWAINE ALBERT BARTLEY
Before Justice Beverly A. Brown
Heard on January 2, March 2, December 11 of 2020
and May 19 of 2021
Response to Constitutional Challenge and Reasons for Sentence
released on June 28, 2021
Mr. Nathan Kruger counsel for the Crown
Ms. Leah Shafran counsel for the accused
BROWN, B., J.:
Introduction:
1The defendant, Dwaine Albert Bartley entered guilty pleas on January 2, 2020, to on Sept 23, 2017, without lawful excuse, make available child pornography, contrary to s. 163.1(3), and on the same date, possession of child pornography, contrary to s. 163.1(4), of the Criminal Code. The Crown proceeded by indictment, and Mr. Bartley elected trial before this court. Although the court had the recollection that the court had made an order banning publication on a previous date, this order was not properly endorsed on the information. Accordingly, this court made a s. 486.4(1) Criminal Code order banning publication. An agreed statement of facts was filed in evidence.
2The investigation commenced after a child pornography image had been uploaded on Sept. 23, 2017 by Mr. Bartley via Kik, with his email address. Later investigation led the police to Mr. Bartley’s address, where a search warrant was executed. Police officers seized two Samsung phones, a tablet and disks. The images which are before this court were located on one of Mr. Bartley’s cell phones. The second cell phone of Mr. Bartley was seized, but was password protected. This phone has been unable to be accessed by the police.
3Essentially, there were images of child pornography on one of Mr. Bartley’s phones, together with videos, on the Kik application of his cell phone. Those images were admitted in evidence, and sealed as an exhibit. With respect to the charge of make available child pornography, there was one image. On the other count relating to possession of child pornography, there were 39 images and 55 videos.
4Submissions related to sentence were commenced on that date. The matter was put over for sentence, and subsequently adjourned on various dates during the Covid 19 pandemic. Subsequently, while the applicant has been awaiting sentence and as the court contacted the parties to impose the sentence, the applicant brought an application to challenge the mandatory minimum penalties for the offences in this case. Counsel have filed facta, and put before the court authorities, on this point.
5On a recent court date, the court advised the parties orally of the nature of its response to the constitutional challenge to the mandatory minimum penalty on the make available child pornography offence, and received further submissions from the parties regarding sentence.
6These reasons set out the court’s response to the constitutional challenge and as well the sentence imposed by the court upon Mr. Bartley.
Issues :
- Mandatory Minimum Penalty for Possession of Child Pornography:
7The Court of Appeal for Ontario has ruled, in its judgment in R. v. John, 2018 ONCA 702, that the mandatory minimum penalty for possession of child pornography, where crown proceeds summarily, is unconstitutional. Extending the reasoning of the Court of Appeal for cases where the Crown proceeds by indictment, this court would find that the mandatory minimum penalty of 12 months incarceration is unconstitutional, as it considers sentence for this offence. Both parties have agreed that this is the law following this judgment. This means that there is no mandatory minimum penalty for this offence, and the range of sentence extends to a maximum of 10 years incarceration. The court will consider the imposition of sentence related to this count, which relates to 39 images and 55 videos, later in the reasons.
- Mandatory Minimum Penalty for Make available Child Pornography:
8In this case, there is a mandatory minimum sentence of imprisonment for this offence before the court, of 12 months jail, and a maximum punishment of up to 14 years jail pursuant to s. 163.1(3) for the offence of making available child pornography. There is no doubt that this is a more serious offence than the offence of simply possessing child pornography. The process of making available to other people the child pornography which an accused possesses, is at the heart of the evil that has concerned the courts over the years, where children are re-victimized each time new people see child pornographic images.
9For the offence of make available child pornography, there has been no appellate ruling which is binding upon this court. Before dealing with this constitutional challenge, it is to be noted that as a judge of the Ontario Court of Justice, also known as a Provincial court, this court is not empowered to make formal declarations that a law is of no force or effect under s. 52(1) of the Constitution Act, 1982; only superior court judges of inherent jurisdiction and courts with statutory authority possess this power. However, this court has the power to determine the constitutionality of a law where it is properly before them. (See R. v. Lloyd, 2016 SCC 13). However, as set out in para. 16 of Lloyd, this court has the power to determine the constitutional validity of mandatory minimum provisions “when the issue arises in a case” that is before the court. In particular, the court stated, at para. 18 :
To be sure, it does not follow that a provincial court judge is obligated to consider the constitutionality of a mandatory minimum provision where it can have no impact on the sentence in the case at issue. Judicial economy dictates that judges should not squander time and resources on matters they need not decide. But a formalistic approach should be avoided. Thus, once the judge in this case determined that the mandatory minimum did not materially exceed the bottom of the sentencing [page147] range applicable to Mr. Lloyd, he could have declined to consider its constitutionality. To put it in legal terms, the doctrine of mootness should be flexibly applied. If an issue arises as to the validity of the law, the provincial court judge has the power to determine it as part of the decision-making process in the case. To compel provincial court judges to conduct an analysis of whether the law could have any impact on an offender's sentence, as a condition precedent to considering the law's constitutional validity, would place artificial constraints on the trial and decision-making process.
[emphasis added]
10As a result, prior to any consideration by this court of the applicant’s constitutional challenge to the mandatory minimum penalty for the make available child pornography offence, this court must deal with the question as to the lower end of the sentencing range applicable to Mr. Bartley. As directed by the Supreme Court of Canada in Lloyd, if the mandatory minimum penalty of 12 months jail does not materially exceed the bottom of the sentencing range applicable to Mr. Bartley, the court can decline to consider the constitutionality of the provision.
11This case is somewhat complicated in that both the Crown and defence have taken a global sentencing position, that there be one sentence imposed, and that it be concurrent on the other count. Originally, before the defence raised the challenge to the constitutionality of the 12 month minimum incarceration for the make available count, the defence had submitted that the 12 month minimum term of incarceration was appropriate for both counts, again, concurrent on the second count. The Crown had submitted that a 16 month term of incarceration was appropriate, concurrent on the second count.
12After the defence raised the constitutional challenge to both counts, the defence submitted that the sentence that should be imposed on Mr. Bartley is one of a 3 month intermittent sentence, after reducing its sentence position of 6 months jail as a result of the Covid 19 pandemic. The Crown maintains its original position at the time of the guilty plea, that there be a 16 month global sentence of incarceration imposed, together with probation and ancillary orders.
13The parties are quite far apart as to their sentencing positions at this time.
A. What is the appropriate range of sentence in this case :
14Following the guidance of the Supreme Court of Canada, and considering the approach to a global sentence in this case, the court starts its consideration by reviewing relevant facts regarding the sentence.
(i) Circumstances of the offence :
15As noted above, the court first considers the admitted facts in this case. The make available child pornography was a colour image of a little girl, approximately 6 years of age, who was nude. In the image, the girl is looking at the camera as she licks an adult penis. Mr. Bartley uploaded this image to Kik, using his user name, and the email address, on September 23, 2017.
16A police investigation was later commenced, and this led to the execution of a search warrant at the accused’s apartment on February 14, 2018, (approximately 5 months later). During that search, the police seized Mr. Bartley’s two Samsung phones. The newer of the two phones possessed by Mr. Bartley was password protected, and as a result the police have been unable to open the phone or look for images. Other seized devices consisted of a tablet, and discs, on which there were no child pornography images. On the older phone of Mr. Bartley that was able to be opened, police located the following child pornography:
- There were 20 videos of child pornography showing babies (children under the age of 2 years);
- Of those 20 videos, 2 videos showed babies subject to bondage who were tied up or wearing a “strap on” device;
- There were 35 videos of children over the age of 2 years;
- Of those 35 videos, 1 video shows a child engaged in bestiality. This child was blindfolded, naked and bound, with her extremities tied to the bed, showing bestiality (with a dog);
- There were 3 images of babies (children under the age of 2 years); and
- There were 36 images of children over the age of 2 years
17The bondage in one image involved white rope binding the child’s extremities, to facilitate a sex act being anal and vaginal intercourse, after which there was ejaculation on the child’s stomach, which is an example of heightened depravity.
18It is the Crown’s submission that the image of the child who was bound and involved in bestiality, a sex act with a dog, is at the extreme end of the range of depravity.
19Another video submitted by the Crown to be particularly horrific shows the child being either anally or vaginally penetrated from behind while hunching over, while her face was in the toilet. It is unclear as to whether there was water or other contents in the toilet. In any event this is another example of heightened depravity.
20There was also an image of a fairly young pre-pubescent boy involved in forced fellatio with an adult male, who appears to express some amount of discomfort, another example of violence and depravity. One image was of a baby in a crib, with the diaper removed, where an adult male was involved in vaginal stimulation, by touching the baby with the fingers and licking the baby, which the Crown submits is potentially at the lower end of the range of images in this collection. Many videos of pre-pubescent females showed oral sex on adult males, anal penetration of the child by a male penis, and oral sex on the girl. One of the images depicted a pre-pubescent female involved with 3 nude adult males.
21The characterization of the child pornography material relating to children who were not babies (children under the age of 2 years), was that generally the gender of the subjects is female, and the general age range is between 6 and 11 years.
22A further examination of the cell phone which contained these images, revealed that some videos and images which were child pornography had been manually deleted, however some were still able to be recovered forensically. A representative sample of the images and videos were shown and played in court, prior to those being sealed by the court. This court would note that many of those images showed the faces of the children.
23It is to be noted, by this court, that these images were not classified pursuant to what has been referred as a classification system in the U.K. caselaw in Oliver & Ors, R. v. Oliver, Hartrey and Baldwin, [2003] 1 Cr App R 28, [2002] EWCA Crim 2766. Some of the cases which have referred to this classification approach in Canada are set out below in the reasons. However, this court would note as it has reviewed the consideration of that approach, that there were images in the case at bar in categories I, iii, iv and v, including the bestiality in the most extreme category of this classification system.
24Overall, the Crown takes the position that in the spectrum of child pornography images in the case law, the images at the lower end are those of children modelling, potentially with the image focusing on a sexual organ or area, as opposed to a sexually explicit act. The collection in this case was not at the lower end of the spectrum, but more towards showing overt sexual activity, and as well heightened depravity arising from the many images and videos relating to babies, bestiality, bondage, causing pain or heightened degradation. While the image of bestiality appears to show the child laughing, the Crown submits that it is not clear as to whether the child was being tickled at the time, and that the laugh should not be interpreted as the child having a good time or experience.
(ii) Circumstances of the offender :
25The defence did not want a pre sentence report for Mr. Bartley. At that time the parties agreed as to a range of sentence, 12 months by the defence, and 16 months by the Crown. Accordingly, no presentence report was ordered by the court.
26The court obtained fulsome information relating to Mr. Bartley from the report of Dr. Mark Pearce, a forensic psychiatrist who did a very thorough report, and as well provided an addendum to that report, relating to some residual issues. The court also has additional information from the defence which is before the court.
27Mr. Bartley is approximately 36 years of age. He also has a 9 year old son, whom he has not seen since his arrest.
28Mr. Bartley’s parents, Beatrice and David, are still alive. He has a twin brother and a half brother. His family is supportive of him. However, he described that his relationship with his parents “really isn’t much of a relationship”. He indicated they were very hands off, very strict. He explained he thought there was resentment, from being thrown out of the home at the age of 16 years. It appeared that his parents had become separated at one point, although appeared to continue living together. There were issues in their relationship. He and his twin brother had been asked to leave the family home “sometimes for the smallest things”. Some of this information came from the report of Dr. Pearce, the contents of which are also noted below.
29Mr. Bartley stopped school in grade 12, when he and his brother moved out of the family home, and he commenced working. At one point he worked as a security guard, and also at a grocery store. He later had a position working at Shopper’s Drug Mart, where he worked for 8 years before losing that job after there was a press release related to the subject charges. In that sense, he has suffered the loss of what was for him a long term position of employment, as a result of these charges. While on bail, he attended George Brown College, the HVAC program, which he completed.
30Mr. Bartley has worked, as noted by the exhibits, at Food Basics and Chicken Fil A. The defence provided to the court evidence relating to his prior employment positions, from Chicken fil A, from the fall of 2019, and from Food Basics, from May of 2019.
31The defence has also filed a letter to Mr. Bartley from the Family Responsibility Office, with respect to his agreement to pay towards support arrears for his child, effective Nov. 8, 2019.
32The defence submits that Mr. Bartley submitted himself to a voluntary and invasive procedure relating to this assessment by Dr. Pearce. This report, dated April 30, 2019, was filed in evidence.
33There is no indication of Mr. Bartley suffering from any disabilities or addictions. However in Dr. Pearce’s report, Mr. Bartley indicated he had been diagnosed with ADHD, although he was not prescribed any medication. He was not diagnosed with a learning disability. According to Dr. Pearce’s report, he has average intellectual abilities.
34Mr. Bartley reported that he started smoking marihuana at the age of 15 years, and began smoking 1 to 2 grams a day after that, that he came to rely on it, but he did not think it was involved in the offences. He described having used cocaine on a handful of occasions, and last used it a year or so prior to the interview with Dr. Pearce. Mr. Bartley reported that he suffered from depression. He self-harmed between ages 9 and 10, and 16 years. He also reported suffering from social anxiety. He is medically healthy except for suffering from mild asthma.
35When asked to describe himself, by Dr. Pearce, Mr. Bartley stated “I don’t really like myself to be honest with you”. He indicated he did not really have any friends. He indicated he has had a problem with his temper, and that his self esteem is very low.
His mother described him as someone who needed treatment for depression, but not pedophilia.
36He saw Dr. Halman, a psychiatrist at Mt. Sinai Hospital, in August 2018. He reported a persistent depressed mood since he was the age of 10. He stated he got caught up in social media as an adult and was ashamed of the charges, and suffered from low self esteem.
37When asked questions about the offence by Dr. Pearce, Mr. Bartley denied an attraction toward children, and had trouble explaining why he had sent child pornography. He said he “wanted to belong” and that perhaps that was why he “traded” the material. He spoke about depression, he knew it was wrong and he “fucked up”. He also stated that he had made a horrific mistake and that it would never happen again. He indicated he was amenable to treatment.
38He reported that he viewed internet pornography as an adolescent, including his fetish of wanting women to urinate on him. He also engaged in cross-dressing from time to time, once or twice a month, but stated he had not done so since he had enrolled in school. He had posted images of himself dressed up as a woman. He had an altar name, “Nicole”.
39Mr. Bartley admitted he had first viewed child pornography on Kik n 2015 or so. He stated he located it through the groups where he used to post pictures of himself. He used a cell phone when using Kik. He stated he probably should have been more disgusted with it than he was, that it just seemed so commonplace after a while. He admitted to trading the images, in the groups. He sent it because he felt other users wanted to see it. His alternate explanations for doing what he did including seeking attention online, maybe it was to be accepted by those people, that he really did not have any good explanation for doing it. He saved the images and videos to his phone. When asked if he has an attraction to children, by Dr. Pearce, he responded he likes to think he does not but the fact he was involved in trading it worries him. He was involved in several chat groups. When asked, as noted on pg 11 of the report of Dr. Pearce why child porn is problematic, Mr. Bartley replied :
“because it is morally reprehensible. They’re exploiting innocence and especially in this world, we need all the innocence we can get. It is just wrong to take advantage of someone who doesn’t know any better”. It was “definitely harmful” to the victims, physically and psychologically. He planned to avoid viewing CP ever again; he stated “I’ll never have anything to do with it.”
40In terms of relationships, he indicated he has had 2 or 3 serious relationships, but not been married or engaged. He had lived with 2 partners. He had had about 5 sexual partners, one of which had been a male, although he reported being of heterosexual orientation. A little over a month ago, defence counsel advised the court that Mr. Bartley is in a relationship with a woman, and the two are expecting a child in October of 2021. He has been living with this woman, and the plan is for him to resume living with her after he serves his sentence, and the baby is born.
41Overall, in terms of diagnosis, Dr. Pearce indicated in his report that it does not appear that Mr. Bartley suffers from a major mental illness, such as schizophrenia or bipolar disorder. He likely suffers from persistent depressive disorder, and alternatively could be suffering from an adjustment disorder. As well, Dr. Pearce opined that he suffers from a mild cannabis use disorder. He has admitted to an interest in transvestism and autogynephila, and may also suffer from urophilia. He has no personality disorder.
42A very key aspect of the report of Dr. Pearce relates to testing and risk. Phallometric testing directed by Dr. Pearce was uninterpretable. A diagnosis of pedophilia or hebephilia could not be excluded. Dr. Pearce indicated that it is not clear what risk he presents if any for committing a hands-on sexual offence. Nonetheless Dr. Pearce opined that Mr. Bartley is at a low risk for re-offence (future possession of child pornography charges). The court is somewhat of a loss in having carefully read, multiple times, the report of Dr. Pearce and the addendum, in terms of understanding the basis for this opinion of low risk. Nonetheless, Dr. Pearce recommended sexual offender treatment programming, geared to those with possession of child pornography charges. If Mr. Bartley is permitted to use a computer, Dr. Pearce opined that his online activities should be routinely and randomly monitored to ensure he does not re-offend. It is notable that despite the low risk opinion of Dr. Pearce, there is a suggestion that there be treatment and that monitoring of computer use by Mr. Bartley be performed. Dr. Pearce also indicated that Mr. Bartley would benefit from ongoing counselling to deal with his mood and proclivity towards marihuana. An antidepressant would help with his mood.
43The defence has put before the court numerous character references, which include letters of support from his mother (Beatrice Bartley), his father (David Bartley), his brother (David Bartley), and his sister in law, Stephanie Gowlett.
44Mr. Bartley has no prior criminal record.
45Mr. Bartley has also expressed remorse to this court.
(iii) Impact on victim and/ or community:
46Pursuant to s. 718.2(a)(iii.1) of the Criminal Code, after January 14, 2013, the court must consider the impact of a crime on the victim, and as considered by the Court of Appeal for Ontario, in R. v. A.G., 2015 ONCA 159 at para 69, and R. v. Taylor, 2004 CanLII 7056 (ON SC), [2004] O.J. No. 3429 at paras 41 and 42. In Taylor, the court held that a victim impact statement helps the judge to understand the circumstances and consequences of the crime more fully, and to apply the purposes and principles of sentencing in a more textured context. Specifically, s. 718.2(a)(iii.1) provides that the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.
47The Crown has submitted that in the vast majority of child pornography cases, children who are depicted in the images are not identified, and therefore there is no ability to obtain victim impact statements from them. In this case, while many of the images of the children show their faces, their identities are not known to law enforcement and to the Crown. As a result, the Crown is not in a position to obtain victim impact statements from the victims shown in the pornographic images.
48The Crown has proceeded to tender community impact statements, which have been entered in evidence as Exhibits. 3 and 4. This is permitted, pursuant to s. 722.2(1) of the Criminal Code, which provides :
When determining the sentence to be imposed on an offender or determining whether the offender should be discharged under section 730 in respect of any offence, the court shall consider any statement made by an individual on a community’s behalf that was prepared in accordance with this section and filed with the court describing the harm or loss suffered by the community as the result of the commission of the offence and the impact of the offence on the community.
This evidence was not contested by the defence.
[49][ In the community impact statement, prepared by the Canadian Centre for Child Protection Inc., by its General Counsel, Monique St. Germain, it is noted that many victims of this exploitation have not been identified by police. Some may still be experiencing sexual abuse, some may not. Some may still be children and some may now be adults. Some may be deceased. The creation of child sexual abuse material has a lasting impact on the community of victims, because the imagery is a permanent record of that abuse, and those awful moments can be and are often seen by others. Once created, images and videos are permanent in nature as they are often stored electronically or converted to electronic format. Many victims struggle with the knowledge that the content is permanent. There is often no way for a victim to know who might have a copy of it, or to prevent it being seen by others. In that way, the abuse continues, as people want to see the child abused. The online exploitation of sexual abuse exists in perpetuity and is limitless given the internet.
50This statement describes some of the impacts experienced by victims who have been the subjects in child pornography. This group is described as the Phoenix 11. In the summary of this report, it was noted that when the hands-on sexual abuse began for the members of this group, 56% were under the age of 4 years, and 31% were between 5 and 11 years of age. Some 12% in the group were over the age of 12 years. Other aspects of the demographics of this group were disclosed in great detail in the summary.
51Of the victims in the group, many have difficulty later in life with their own children as the victims suffer from post traumatic stress disorder. They have issues with respect to their online identity. Victims develop social anxiety, and difficulty encountering strangers fearing that a stranger might have seen their sexual abuse online. Some victims never want to have their picture taken for any purpose, even including participating in a group picture. Some cannot enjoy social media or being in public places.
(iv) Evolution of sentencing for offences related to
child pornography :
52Both parties have submitted case law from many years ago for sentences which have been imposed for possession of child pornography, and make available child pornography. The court must be mindful however of the changes in law, both statutory and common law, over the last 10 years or so.
53In 2003, Parliament provided that both possession and make available child pornography offences were hybrid. For the offence of make available child pornography, the penalty provisions were either as a summary conviction offence, or if a procedure by indictment to a maximum of 10 years incarceration.
54For the offence of make available child pornography, two years later, in 2005, Parliament amended the sentencing provisions to provide that where there was a summary election, a minimum penalty of 90 days, and a maximum of 18 months incarceration. If the Crown proceeded by indictment, Parliament also introduced a minimum punishment of 1 year, and kept the maximum punishment at 10 years incarceration.
55Seven years later, in 2012, Parliament increased the penalty for this offence where the Crown proceeded summarily, being a minimum punishment of 6 months, and an increased maximum punishment of 2 years less a day incarceration. Parliament did not change the sentencing range for an indictable election for this offence.
56In 2015, Parliament passed Tougher Penalties for Child Predators Act., which raised the penalty for this offence to make it a straight indictable offence, with a maximum penalty of 14 years and a minimum penalty of 1 year incarceration.
57For the offence of possession of child pornography, from 2003, the offence was subject to the summary conviction range of punishment, or if by indictment to a maximum of 5 years incarceration. In 2005, Parliament increased the penalty for summary conviction election to a minimum punishment of 14 days incarceration, and a maximum of 18 months incarceration. Where the Crown proceeded by indictment, the range was a minimum punishment of 45 days incarceration, and a maximum of 5 years incarceration. In 2012, Parliament again sent a signal by increasing the minimum penalty, for both summary and indictable elections. For a summary election, an offender was subject to the similar maximum of 18 months incarceration, but the minimum punishment was increased to 90 days incarceration. Where the Crown proceeded by indictment, the minimum penalty was increased to 6 months incarceration, and the maximum was kept at 5 years incarceration. In 2015, Parliament passed the Tougher Penalties for Child Predators Act, which amended the penalty provision for this offence. Although it remained a hybrid offence, where the Crown proceeds summarily, the maximum punishment remained at 2 years less a day, and the minimum punishment was increased to 6 months incarceration. Where the Crown proceeds by indictment, the penalty was increased to a maximum of 10 years, with an increase to the minimum penalty of one year incarceration.
58Parliament has sent recurring very strong signals, that it seeks to have higher sentences imposed for make available child pornography, and possession of child pornography, over the many years that these offences have been in existence. There is no doubt that Parliament has by the amendments indicated that these offences must be considered for the imposition of greater penalties as a result of increased penalties. There is no doubt that deterrence and denunciation are the paramount principles in relation to sentencing for these offences.
59Similarly, there is no doubt that the Court of Appeal for Ontario and the Supreme Court of Canada have also by their pronouncements sent a clear message to courts that the penalties for these offences should reflect the seriousness of these offences. Implicitly the message is that prior sentences were not sufficient to address the paramount sentencing principles of deterrence and denunciation.
60The Court of Appeal for Ontario considered the quantum of sentence for offences related to child pornography in R. v. Inksetter, 2018 ONCA 474, [2018] O.J. No. 2702 (C.A.). On May 23, 2018, in that judgment, the Court made a very strong declaration regarding the nature of penalties for make available and possession of child pornography, regardless of any subsequent declaration of unconstitutionality of mandatory minimum penalties, stating at para. 24, and following :
I am aware that there is an appeal pending in this Court in R. v. Cristoferi-Paolucci, 2017 ONSC 4246, [2017] O.J. No. 4341, challenging the constitutionality of the mandatory minimums for possession of, and making available, child pornography. However, even if the mandatory minimums are declared of no force and effect, Parliament's legislative initiatives signal Canadians' concerns regarding the increasing incidence of child pornography. Sentencing decisions that precede these amendments must be viewed with some caution.
… 27 A longer sentence on the count of "make available" child pornography than for the count of "possession" is warranted because by making images and videos he downloaded available to others via the internet, the respondent contributed to the further victimization of the children depicted in the pornographic images. In my view, a sentence of three years imprisonment on the count of "possession" of child pornography and three and one half years imprisonment on the count of "make available" child pornography, to be served concurrently is fit in these circumstances, which include the early guilty plea and other mitigating factors identified by the trial judge.
The size of the child pornography collection in Inksetter was far beyond that in the case at bar. The Court allowed a Crown appeal from a provincial sentence to a penitentiary sentence for the offences.
61It is interesting to note that the Court of Appeal for Ontario had before it in 2018 the case of R. v. John, 2018 ONCA 702, which was released on September 4, 2018. In this case, the court ruled that the mandatory minimum penalty of 6 months jail for possession of child pornography, where the Crown proceeded summarily, was unconstitutional. The court considered a reasonable hypothetical related to an 18-year-old's friend who forwards to him a sext from the friend's 17-year-old girlfriend without her knowledge, and the 18-year-old keeps the sext on his phone but does not forward it, in making that declaration. The court held that most members of the community would consider a six-month jail sentence a substantial interference with individual liberty and would find it intolerable that such a punishment could be applied to this behaviour, especially given the number of images/videos involved (one single image), the nature of the image in question (lawfully self-created), the manner of acquisition (passive recipient) and the nature of the offender (young adult). The court struck down the mandatory minimum of 6 months jail for the offence in the Criminal Code. It is interesting to note that the circumstances of the offence before that court were quite different from the reasonable hypothetical. The court upheld the 10 month incarceration sentence imposed in that case, where the crown had proceeded summarily, and the collection consisted of 89 unique videos and 50 unique images of very young children being subjected to anal and vaginal penetration. The sentence was proportionate to the gravity of the offence and the accused's degree of responsibility without regard to the mandatory minimum and, but for his considerable efforts at rehabilitation, the Court indicated that the sentence could have been much higher. It is also notable that the court stated in para 41:
The mandatory minimum is entirely unnecessary. This court has recently emphasized the importance of denunciation and deterrence for any offence involving abuse of a child, and that those principles are the primary principles of sentencing applicable for such offences involving child pornography: R. v. Inksetter (2018), 141 O.R. (3d) 161, [2018] O.J. No. 2702, 2018 ONCA 474, at para. 16.
The court also stated in relation to the sentence appeal which it dismissed, at paras 44 and 45 :
44…He has suffered from serious mental health problems for which he was inadequately treated. At times he was suicidal. He has pursued a course of psychotherapy with a view to dealing with his problems. The appellant is employed and is continuing counselling. He is remorseful, and no risk factors have been identified requiring further treatment.
45Despite these mitigating factors, the size and nature of the appellant's collection is a seriously aggravating factor. The appellant had possession of 89 unique videos and 50 unique images of child pornography. He actively sought out these images and videos. His collection included images of children as young as four years old, and some perhaps as young as two or three years old, subjected to anal and vaginal penetration with sex toys and adult penises. This is terrible abuse of young children. In R. v. Lynch-Staunton, [2012] O.J. No. 313, 2012 ONSC 218 (S.C.J.), at para. 57, Ratushny J. pointed out that
It is to be understood by those trolling the Internet for child pornography that these pictures are acts of violence against children, that viewing and possessing them perpetuates the original violence, that viewing and possessing them encourages new child victims, and that as a consequence, jail terms will result. [page682]
The Court further stated :
46But for the appellant's very considerable efforts at rehabilitation, the sentence imposed could have been much higher.
47The sentence imposed was fit and proportionate to the gravity of the offence and the degree of responsibility of the offender without regard to the mandatory minimum.
The court dismissed the appeal from sentence.
62This court would note that the nature of the collection in that case was comparable to the case at bar. However, in the case at bar there are what appear to be more types of depravity in images and videos which also relate to babies, being children under the age of 2 years. As well, there is bestiality in relation to a child older than 2 years, but relatively quite young. Rather than repeat the nature of the images, reference can be made to paragraphs [16] through [20] above. The depravity in the case at bar shows more depravity than appears to be the case in this Court of Appeal case of John.
63Most recently, in 2020, the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9 at para. 5, made a pronouncement with respect to offences relating to children:
Third, we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of the sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large.
Further, the Court reached out to make it clear it intended that its comments be considered in relation to other types of offences involving children, at para. 44, noting:
Courts may also draw upon these principles when imposing sentences for child abduction and human trafficking offences where the victim is a child and the factual foundation for the conviction involves sexual violence or exploitation.
The Court specifically considered sexual offences against children in the age of technology, where there has been a proliferation of child pornography offences. The court specifically noted, at para 48:
Technology can make sexual offences against children qualitatively different too. For instance, online distribution of films or images depicting sexual violence against a child 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 (R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at para. 92; R. v. S. (J.), 2018 ONCA 675, 142 O.R. (3d) 81, at para. 120).
64Following the Supreme Court of Canada’s comments in Friesen, which echoed its earlier comments in 2001 in Sharpe, the Court has sent strong signals that for offences relating to child pornography, such as make available and possession of child pornography, sentences where children’s vulnerability are exploited, and which cause profound harm, should reflect those circumstances. In Friesen, the Court noted that sentences must be proportionate to the gravity of the offences and degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives. Courts must take into account the wrongfulness and harmfulness of sexual offences against children in applying the proportionality principle, as it impacts on the gravity of the offence and degree of responsibility of the offender. The court reflected upon the wrongfulness of treating children not as persons with equal dignity, but as sexual objects to be used by adults, as they are exploited (see para 78). The court noted that Parliament’s recognition for this profound harm has led to increases to sentencing for these offences, as it has determined that sentences for such offences should increase to match Parliament’s view of their gravity (see para 95). Parliament has shown that it wants such offences to be treated as more grave and punished more harshly than in the past (paras 96-97, and see also Lacasse, at para. 7). It has addressed this by increasing maximum sentences and prioritizing denunciation and deterrence in sentencing. The Court was very clear as to the need for sentencing judges to respond to the increases in maximum penalties for these offences :
- To respect Parliament's decision to increase maximum sentences, courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences. As Kasirer J.A. recognized in Rayo in the context of the offence of child luring, Parliament's view of the increased gravity of the offence as reflected in the increase in maximum sentences should be reflected in [TRANSLATION] "toughened sanctions" (para. 175; see also Woodward, at para. 58). Sentencing judges and appellate courts need to give effect to Parliament's clear and repeated signals to increase sentences imposed for these offences.
The Court explicitly directed that it was providing guidance to courts. In that regard, it stated that there should be upward departure from prior precedents and sentencing ranges in order to impose a proportionate sentence. Relying upon Lacasse, the Court stated that sentences can and should depart from prior sentencing ranges when Parliament raises the maximum sentence for an offence and when society’s recognition for the harm arising from the offence has increased. Courts should not feel bound to adhere to a range that no longer reflects Parliament’s view of the gravity of the offence. To be clear, the guidance provided is that sentences should increase as a result. (see paras 108-110).
65Parliament has further prioritized denunciation and deterrence for offences that involve the abuse of children by enacting s. 718.01, of the Criminal Code and as well by stating that where offences involve the abuse of a person under the age of 18 years, the court must give “primary consideration” to the objectives of denunciation and deterrence of such conduct when imposing sentence. At the same time, the sentencing judge still has discretion to attach significant weight to other factors, including rehabilitation and Gladue factors, in determining a fit sentence, in light of the overall principle of proportionality.
66The message from Parliament and appellate courts, quite clearly, is that the sentences imposed for offences of make available child pornography, and as well possession of child pornography, need to properly reflect the increases to the sentencing regime in the Criminal Code, and the gravity of these offences. Sentences must also address the primary principles of denunciation and deterrence. Sentences imposed many years ago did not properly address those factors.
67And yet, where sentences have been imposed for the offence of possession of child pornography, where the Crown proceeded by indictment and there was a 12 month sentence of imprisonment, concerns have been raised in decisions (although not the Court of Appeal for Ontario or Supreme Court of Canada), that those cases might have “raised the floor” for low level types of possession offences, and that in subsequent cases the court should be concerned to not rely on those cases as they might have resulted in lower sentences had the unconstitutionality been decided earlier.
68There is somewhat of an inconsistent theme. Appellate courts have sent a strong signal that sentences be sufficient to address the greater gravity of the offences, as reflected by increasing the maximum penalties by Parliament in the Criminal Code for these offences. In addition, the primary principles of deterrence and denunciation, must be considered in crafting a proportionate sentence. On the other hand, as courts are guided by the range of sentence imposed in the past, courts look to historical decisions. A concern has been raised that if a sentencing court was guided by a mandatory minimum penalty later determined to be unconstitutional, the sentence imposed at that time may have effectively raised the lower level of sentencing range for that offence. In other words, had there been no mandatory minimum sentence in place at that time, the sentence imposed might have been notably lower.
69In terms of considering reported cases as a backdrop for determining a sentencing range, this court considers the Supreme Court of Canada judgment in R. v. Lacasse, 2015 SCC 64, at para. 57, which stated that “sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives.” It is important to bear in mind that sentencing ranges should not function as straitjackets on a trial judge’s discretion, but rather as “historical portraits” for the use of sentencing judges, who must still exercise discretion in each case. Ranges must sometimes be expanded.
70A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Pursuant to s. 718.2 (b) of the Criminal Code, a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. For that reason, the court looks to sentences imposed by other courts, and considered at appellate courts, to comply with this sentencing principle. Although that is a goal which this court strives to achieve in imposing sentence, it is sometimes difficult to compare cases before the court with reported cases.
Nature of offence :
71In crafting a proper sentence suitable for the offence and the offender, this court first considers the nature of the offence before the court.
72As noted above, although two phones of Mr. Bartley were seized, only one was opened and was the subject of the two charges before this court. The phone which was the subject of the images in this case was the older phone of Mr. Bartley. The newer phone has not been able to be opened. The child pornography content on this older phone was far less in quantity than in the vast majority of reported cases of child pornography possession and make available child pornography offences. There are simply not a lot of decided and reported cases dealing with collections similar to the number in this case. The Crown takes the position that the nature of the collection in this case was of heightened depravity, and that as a result this should be reflected in a higher sentence than if the images and videos were of less depravity. The images also contain many related to babies, which are not often before the court for these types of offences.
73By and large, there are numerous key components this court would note, in comparing the nature of the offence in this case, with other reported sentencing cases. Those are as follows :
(i) Does the case have an offence of make available child pornography? The case at bar includes that offence, and it is important to note that of the two offences, it is clearly the most serious, being a straight indictable offence with a 14 year maximum term of incarceration. The offence of possession of child pornography, where the crown has made an indictable election, provides for a maximum of 10 years incarceration. If the reported case does not involve a sentence for the make available offence, it is potentially less serious as an offence;
In addition, the Court of Appeal for Ontario in Inksetter, supra, stated at para 27 :
A longer sentence on the count of "make available" child pornography than for the count of "possession" is warranted because by making images and videos he downloaded available to others via the Internet, the respondent contributed to the further victimization of the children depicted in the pornographic images.
(ii) What is the size of the collection, or in other words the number of images and/or videos ? The case at bar involves a collection which is smaller than most of the cases submitted by the Crown, although larger than many of the cases submitted by the defence. Although the Crown has submitted that the size of the collection is not an important factor, it is clear that the reported cases, have distinguished the size of the collection as a distinguishing feature;
(iii) What is the age of the children depicted in the images ? The case at bar involves babies, being children under the age of 2 years, and as well children in the pre-pubescent age range. Comparisons of cases seem to distinguish the case being a more serious offence when babies and younger children are depicted;
(iv) Where would the collection, in terms of the nature of the images and videos be placed, on a scale? While there are some of the less serious images, being photos which appear to show poses of children and depicting sexual areas, it appears that the majority of the collection before this court depicts children involved in sexual acts, including penetrative activity both vaginal and anal, together with oral sex.
(v) Does the collection have elements of heightened depravity, such as bondage, sadism and bestiality? These elements are clearly aggravating features of the offence if this is contained in the collection. This aspect is clearly present in this case.
As noted, although the size of the collection in this case might not be considered as aggravating, there are numerous aggravating factors in terms of the nature of the collection. It is trite to indicate that each video contains within it the equivalent of many still images. Numerous images and videos in the collection depict babies, under the age of two years. Other images are of children between 6 and 11 years. There are numerous acts of depravity, bestiality and oral sex performed by a young child. Rather than repeat the nature of the images, reference can be made to paragraphs [16] through [20] above.
74There are essentially two lines of consideration of types of collections, setting out aggravating features. Justice Molloy commented, in R. v. Kwok, 2007 CanLII 2942 (ON SC), [2007] OJ No. 457, on the various aggravating factors related to the nature of the offence, including whether there was also production or distribution of the pornography, and as it relates to the nature of the collection, the size of the pornography collection and the nature of the collection (including the age of the children involved and the relative depravity and violence depicted).
75As set out above, there is a unique approach to classifying child pornography images which has been adopted in the United Kingdom in 2002 in the decision of Oliver & Ors, R. v., [2002] EWCA Crim 2766, [2003] 2 Cr. App. R. (S) 15 (BAILII), and later adopted in Manitoba. (See, for example, R. v. Brooks (J.C.), 2010 MBPC 61, 263 Man. R. (2d) 186; and R. v. Lague (G.J.), 2013 MBQB 32 at paras. 19, 32, 287 Man.R. (2d) 204.) In addition to these cases in Manitoba, there has been reference to this approach in the Nova Scotia Court of Appeal case in R. v. Missions, 2005 NSCA 82. More recently, in Ontario, cases have also referred to this approach (See R. v. Levin, 2015 ONCJ 290 and R. v. Chislette, 2018 ONCJ 218. This U.K. approach ranks, in increasing order of severity, the content of images and videos. It classifies the content of pornographic images into five levels:
(i) erotic posing with no sexual activity;
(ii) sexual activity between children or solo masturbation by a child;
(iii) non-penetrative sexual activity between adults and children;
(iv) penetrative sexual activity between children and adults; and
(v) sadism or bestiality.
If one were to consider this classification, the case at bar includes one video of category (v), being sadism or bestiality. There was no characterization of subject videos and images using this classification in the case at bar. The court would note however, that in the case at bar, 2 videos or images included children subject to bondage (tied up or wearing a “strap-on” sex toy). Twenty of the videos depicted babies under the age of 2 years. While the case at bar was not subject to any review by an officer or anyone else to see where the images and videos in the case at bar might fall within an Oliver classification scale, it is apparent that there are some images or videos of sexual activity, bestiality and bondage. Rather than repeat the nature of the images in the case at bar, reference can be made to paragraphs [16] through [20] above.
76In terms of the size of the collection in this case compared to reported cases, this court would note that many cases submitted by the Crown over various occasions to this court, include many where the number of images exceeds by a multiplier factor those in the case at bar, and the sentences imposed were in excess of the sentence sought by the Crown in the case at bar.
77In Inksetter, the Court of Appeal increased the maximum reformatory sentence imposed to a penitentiary sentence for a collection before the court wherein:
Ninety-five per cent of the material depicted actual penetration and other explicit sexual activity. Some of the images of explicit sexual activity involved children as young as one-year old. The images included bondage and bestiality.
While the collection was significantly larger than the one in the case at bar, the aspects of the images that have been described are in a similar category of babies, depicting actual penetration or other explicit activity, and including bondage and bestiality. The court repeated the comment of the trial judge that the collection of images was at the extreme end of the spectrum. There is no doubt that the nature of the collection in the case at bar given the aspects of heightened depravity noted herein, also approaches the extreme end of the spectrum, although the quantity of images is far less than in Inksetter.
78The court bears in mind these features and factors relating to the nature of the offence in considering the cases before this court to establish a sentencing range. The court also bears in mind numerous factors which have been outlined by Justice Molloy in Kwok, below, as mitigating factors, in comparing reported cases. Some of the significant factors are whether there was a guilty plea, the youthful age of an offender, the otherwise good character of the offender, the extent of insight of the offender, any genuine remorse of the offender, whether offender has taken treatment or willingness to take future treatment, and the extent of suffering already in terms of family, career or community occasioned by the discovery of the offence. In this case, there was a guilty plea, which is potentially the greatest mitigating factor in this case. The other factors are addressed in these reasons.
Cases submitted by the defence as to the sentencing range :
79The court commences with an examination of the low end of the sentencing range. In that regard, the court reviews carefully and considers the sentencing cases put before the court by the defence. These cases potentially set out a lower end of a sentencing range for this case. They are submitted as a backdrop for the defence submission that the proper sentence should be 3 months jail, intermittent (after reducing from a 6 month sentence due to considerations arising from the Covid 19 pandemic) together with a 2 year probation order. This court would make the following observations, as to this court’s consideration whether those cases are relevant to a sentencing range for this case.
80Firstly, the defence relies upon R. v. Dumoulin, 2013 ONCJ 425, wherein a 6 month incarceration sentence was imposed. There were more images in that case than in the case at bar, but this court would heed the comments of the Supreme Court of Canada in Friesen to exercise caution in relying upon such a dated decision, prior to Parliament passing in 2015 the Tougher Penalties for Child Predators Act amending and increasing sentences for the subject offences.
81In the cases released later which were submitted by the defence, the court notes the following. In R. v. Morrison, 2019 ONCJ 262, the defendant was only charged with possession of child pornography. While the court did find it an aggravating factor that the defendant made available images on 3 occasions, those actions were not the subject of a finding of guilt or conviction. Further, there were only 11 images and they were at the lower end of the spectrum of depravity. Essentially they were “posing” photographs. The defendant was 59 years old, on a disability pension and had participated in counseling. He also suffered from various physical ailments, some of which were relatively serious. While a sentence of 100 days incarceration was imposed, this court finds that sentence was for a less serious offence than the case at bar, in relation to an offender who was an older man. The offender had also done some rehabilitation and had relatively serious physical ailments. It is not very helpful in considering a sentence for the case at bar.
82In R. v. Woolf, 2019 ONCJ 376, the court considered sentence for the sole offence of possession of child pornography, where there were 65 images. The defendant was 66 years of age, and he was a well-known artist and educator, teaching at college. His marriage ended, and he lost his career and social status, after the offence was revealed. There was a smaller collection and the images were at the lower end of the extreme, as compared to this case, being “posing” photographs. The age range of the children was 5 years until teenage years. There were no images of babies. One child appeared posed in relation to fellatio. There was absolutely no evidence of making any of the images available. There were numerous mitigating factors. The court imposed a 90 day jail sentence. This case is not helpful to the court in determining a range of sentence for this case.
83Finally, in R. v. Doucette, 2021 ONSC 371, the court considered a charge of accessing child pornography where 4 images had been streamed in a zoom room on one occasion. There was evidence of possession of 9 other images, although they were not the subject of a charge or conviction. He did not distribute child pornography. The images were described as depicting adults engaging in sexual acts with children, including oral and anal sex. There was no indication of any heightened depravity, or the involvement of babies, such as in the case at bar. The defendant was 53 years of age, and had been diagnosed with bipolar affective disorder, together with generalized anxiety disorder and substance abuse disorder. He was addicted to methamphetamine and HIV positive. The offences appeared tied to his mental disorder, and the trial judge found that he had made progress in relation to his mental disorder and drug use. On a summary conviction appeal, the court found the 6 month incarceration mandatory minimum penalty to be unconstitutional, and held that a 4 month incarceration sentence would have been appropriate. However, in the circumstances at the time of the appeal, in light of credit for custody, and his physical condition and the ongoing Covid 19 pandemic, the court converted the sentence to a conditional sentence for the remaining number of days of what would have been the 4 month sentence. This court finds that this case is quite different in terms of the nature of the offence, and the circumstances of the offender, such that it is not helpful in setting a range of sentence for the case at bar.
84The case of R. v. Alexander, 2019 BCCA 10, involved only possession of child pornography. There was no offence of make available child pornography. The offence was committed prior to the 2015 Criminal Code amendments to the sentencing provisions for child pornography. There was a larger collection, and the predominant age of the children was 8 years and older, although there was one image of a child between 1 and 3 years of age. There was one image that involved bondage. The images ranged from posing images, to the penetrative sexual activity between children and adults. The content of the videos was sexual assault of female children by vaginal and anal intercourse. The Court of Appeal upheld an 8 month incarceration sentence as appropriate. This court would note that the sentence was considered in relation to the prior sentencing regime for the offence, and that the collection appeared to have less images of babies and images of depravity and bestiality, as compared to the case at bar.
85On an earlier occasion, the defence initially relied on a different series of cases which included the following reported sentencing cases.
86In R. v Dawkins, [2019] O.J. No. 5802, it appears that there were 3 images on a laptop, and one video on a USB in a backpack which was of a 2 to 4 year old child being vaginally, anally and digitally penetrated by a male. An 8 month incarceration sentence was imposed. This collection was much less serious than the case at bar.
87In R. v. Wang, [2016] OJ No. 5582, the court considered only the offence of possession of child pornography committed in 2010, in relation to 5 videos and 3 images on a desktop computer, which related to girls aged 7 to 14 years engaged in sexual acts including intercourse with adults and children. A 9 month incarceration sentence was imposed. Obviously the collection in that case was far less serious than the case at bar, and the offence was prior to 2015.
88The case of R. v. Bools, [2015] OJ No. 2979, related to a 2011 offence of possession, one offence of make available child pornography, and one of make child pornography. There were 58 images located, and it appears there were 26 accessible to others. There were no videos. There were no images of violence and no images of children engaged in sexual acts with adults. A large majority of the images were in the nature of posing images, which is at the lower end of the spectrum for child pornography. Being prior to the 2015 Criminal Code amendments, and relating to the low end of the spectrum for images, this case is not helpful in establishing a relevant sentencing range.
89In R. v. Covert, [2015] OJ No. 3488, the court considered a 2014 offence of only possession of child pornography. There were 27 images and 256 videos. Thirty percent of the children were between 7 and 13 years of age, the remainder were between 14 and 16 years of age, although there were some with children as young as 5 to 6 years of age. There were no babies. Approximately 30 to 40% of the materials involved children engaged in explicit sexual activity, including vaginal and anal sex, oral sex and masturbation. There was no mention of any acts of depravity, bondage or bestiality or any images with babies. The Crown proceeded summarily on the charge, which was covered by the sentencing provisions prior to the 2015 Criminal Code amendments. This case is not particularly helpful in setting a relevant sentencing range for this case.
90By and large, this court finds that the above cases submitted by the defence are less serious in terms of the nature of the collection, and most if not all of the earlier cases submitted were governed by the sentencing provisions prior to the 2015 Criminal Code amendments. The sentences imposed, this court would find, would be below what this court would find appropriate for the sentencing range for this case.
Cases put before the court by the Crown as to sentencing range:
91In reviewing the cases provided to the court by the Crown, the court would note that many of them are very different in terms of the size of the collection, by a multiplier factor. The court is not summarizing the vast majority of those cases in the reasons as they do not add to the court’s consideration of the appropriate sentencing range for the offence in this case, for this offender.
92This court is of the view, after reviewing all of the cases put before the court by the defence and Crown, on multiple occasions, before and after the constitutional challenge was raised, that most of the cases are not very helpful in setting a relevant sentencing range. This arises from the differences in the size of the collection in this case, which is somewhat smaller in size than many other cases put forward by the Crown. At the same time, the collection in this case includes greater depravity than many of the cases put forward by the Crown.
93This is a classic situation where there are not many cases similar to the one before this court. This court is mindful of the principle of disparity, but also the cautionary statements of the Supreme Court of Canada in Friesen as it relates to potentially relying upon earlier sentencing cases which are out of step with the recognition of the greater gravity of the offence and need to consider increased sentences. The court also considers the comments of the Supreme Court of Canada in Lacasse as far as prior sentencing ranges not being “straightjackets”. This court is mindful of the clear signals of Parliament, the Court of Appeal in Inkster and the Supreme Court of Canada in Friesen, to properly address proportionality in sentencing. It is not a simple exercise.
Cases which set out the proper sentencing range :
94Overall, the court finds the following cases to be of assistance in considering a range of sentence for this offence and this offender.
95In R. v. John, 2018 ONCA 702, the Court considered both a conviction and sentence appeal. The case involved only the offence of possession of child pornography, which consisted of 50 unique images and 89 unique videos amounting to child pornography, stored on the appellant's computer. The Court held that the mandatory minimum penalty of 6 months incarceration, which was in effect at the time of this offence, was unconstitutional. Nonetheless, the Court upheld a 10 month term of incarceration imposed by the Superior Court trial judge after the trial. The Court noted that the appellant was 29 years old at the time of the offence and 31 years old at the time of sentencing. He had suffered from serious mental health problems for which he was inadequately treated. At times he was suicidal. He had pursued a course of psychotherapy with a view to dealing with his problems. The appellant was employed and continued counselling. He was remorseful, and he had no risk factors that had been identified requiring further treatment. The court held that despite these mitigating factors, the size and nature of the appellant's collection was a seriously aggravating factor. The appellant had possession of 89 unique videos and 50 unique images of child pornography. He actively sought out these images and videos. His collection included images of children as young as four years old, and some perhaps as young as two or three years old, subjected to anal and vaginal penetration with sex toys and adult penises. This is terrible abuse of young children. The court further stated that but for the appellant's very considerable efforts at rehabilitation, the sentence imposed could have been much higher. It is notable that the case before this court includes the much more serious charge of make available child pornography, and that was not an offence before the Court in John. As well, there were aggravating features in the nature of the collection, including many images being of babies, also with penetration, and also with heightened depravity such as bondage and bestiality, as noted above. In that respect, the case before this court would potentially be the type of offence where the sentence should be in excess of 10 months jail. Given the differences, arising from this appellate case, the court would find that the sentence for Mr. Bartley would be in excess of 12 month range, and potentially in the 14 month range, depending on a more in-depth analysis of the factors relating to the offender.
96Next, the court considers the case of R. v. Kingdon, [2020] O.J. No. 1004 (OCJ). In that case, the court considered sentence for an offender for the offence of make available child pornography. In total, there were 121 images and 61 videos. They included toddlers being anally penetrated and a 7 year old girl being leashed and restrained. The other images involved either posed children, or children engaged in sexually explicit interaction with adult males. Several images involved children in the 2 to 4 year old age range. In that case, the court considered the U.K. classification set out in Oliver & Ors, R. v. Oliver, Hartrey and Baldwin, [2003] 1 Cr App R 28, [2002] EWCA Crim 2766. The court noted that categories 3 and 4 of Oliver [(iii) non-penetrative sexual activity between adults and children; (iv) penetrative sexual activity between children and adults ] were engaged. The court noted that there had been a Superior Court decision striking down the 12 month mandatory minimum term of incarceration penalty for make available child pornography offence. This court has also considered Superior Court case law put before the court by counsel in the case at bar, considering the constitutional challenge. The defendant had no prior criminal record and was a good candidate for rehabilitation. The court nonetheless imposed a 15 month incarceration sentence for the subject offence. The court also made a recommendation that the sentence be served by the offender at the Ontario Correctional Institute (O.C.I.) for treatment. The offence in this case was committed in 2018. The collection in the case at bar is more aggravating than in that case, although there were many more counts of the offence of make available child pornography.
97The court has also considered the case of R. v. Natal Carlos, 2015 ONSC 8085, affd. 2016 ONCA 920, which included charges of make available child pornography and possession of child pornography. It is important to note that the offences were committed prior to the 2015 amendments to the Criminal Code which increased the sentencing provisions. The offender had a collection of 12 videos and 38 videos of incomplete files. The court upheld a 3 year penitentiary sentence for those offences. The offender had not plead guilty. He was likely to face deportation following the conviction. Dr. Pearce had noted that there was no significant arousal to the children stimuli, and concluded he did not meet criteria for pedophilia or any other paraphilia (sexual arousal or interest in children) and that he was at a very low to low risk for re-offending for being in possession of child pornography. In its review of case law put before it by counsel, many of which predated the 2015 amendments to the sentencing provisions of the Criminal Code related to child pornography, the trial judge in the review of cases from counsel, noted a case where it stated that it was an aggravating factor, that an offender had a child of similar age to the children depicted in the images (see para. 56). The trial judge noted the mitigating and aggravating factors at paras 71 to 83. Essentially, as listed by the trial judge as mitigating were that of the videos, while some were of complete files, 9 files could not be opened, 38 videos were of incomplete files, and that the videos had been deleted within a 4 week period. Of the images, the videos were more graphic than still images, showed very young children (although the age was not stated), involved in actual intercourse with adult males, with no indication of any heightened depravity, brutality or bestiality. The defendant had no criminal record, a steady work record, and likely faced deportation. A 3 year term of incarceration had been imposed. In the appeal, the court did not comment upon whether it is an aggravating factor when an offender has a child of an age similar to the ages of the children depicted in the images. At the Court of Appeal for Ontario, before the panel of Feldman, Watt and Huscroft, JJ.A., this penitentiary sentence was upheld. It is interesting to note that Feldman J.A., who is one of the most senior judges on the Court of Appeal for Ontario, spoke for the Court in the often-quoted case of that court in earlier years, of R. v. F. (D.G.), 2010 ONCA 27, which stated many years ago, at paras 21 and 22 :
21Over the last two decades, courts have been on a learning curve to understand both the extent and the effects of the creation and dissemination of child pornography over the Internet and to address the problem appropriately: see, for example, R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, [2001] S.C.J. No. 3; Kwok. A number of relatively lenient sentences had been imposed in cases where child pornography was downloaded or distributed, there was no sexual abuse or making of child pornography involved, and there were many mitigating circumstances: see, for example, R. v. Schan, 2002 CanLII 41613 (ON CA), [2002] O.J. No. 600, 155 O.A.C. 273 (C.A.); R. v. Weber, 2003 CanLII 28579 (ON CA), [2003] O.J. No. 3306, 175 O.A.C. 138 (C.A.); R. v. Kim, 2004 CanLII 32118 (ON CA), [2004] O.J. No. 119, 181 O.A.C. 88 (C.A.). However, in cases that involved making child pornography and child sexual abuse, significant custodial sentences were imposed: see, for example, R. v. Jewell; R. v. Gramlick, 1995 CanLII 1897 (ON CA), [1995] O.J. No. 2213, 100 C.C.C. (3d) 270 (C.A.); R . v. W. (R.), [2001] O.J. No. 2810, [2001] O.T.C. 537 (S.C.J.). [page248]
22Unfortunately, the incidence of this behaviour appears to be increasing and expanding as technology becomes more sophisticated, encouraging the production of child pornography and greatly facilitating its distribution. The victims are innocent children who become props in a perverted show, played out for an ever-wider audience not only of voyeurs but of perpetrators.
98The many other cases put before the court by the Crown and defence are not particularly helpful in terms of developing a range of sentence for an offence and offender similar to the case at bar, and for that reason, despite the fact that they have all been carefully reviewed by this court, they are not summarized nor cited. The court has also noted that many of them were before the 2015 sentencing changes to the Criminal Code, rendering them potentially less helpful, in light of the Supreme Court of Canada comments in Friesen.
99Overall, the court finds that the lower end of the range of sentence for the case at bar is above 12 months, potentially at 14 months, and runs up from that to a much greater penalty. For a collection of a similar size, and potentially less depravity than in the current case, but where there was no mitigation of a guilty plea, the Court of Appeal for Ontario has in 2016 upheld a 3 year penitentiary sentence in Natal Carlos. The Crown submits that the proper penalty is 16 months incarceration, and considering that submission, the court is prepared to consider the range as running up to 16 months jail in this case, although it could run higher given Natal Carlos, the principles in Friesen, the increasing penalties in the Criminal Code, and the nature of the offence.
100In this constitutional challenge, the defence has submitted in its reply to the Crown’s written submissions, that the appropriate sentence would be a total sentence (for all offences) of 6 months incarceration, concurrent on additional counts, reduced to one of 3 months incarceration that it requests be served intermittently, in light of the Covid 19 pandemic. The defence also submits that a probation order of 2 years in length is appropriate. This is a sentence far below that requested by the Crown. In terms of the proper range of sentence for the offences before this court, and this offender, this court would find that the cases submitted by the defence and referred to above, relate to cases which are less serious and or relate to cases where the blameworthiness or moral culpability of the offender, or circumstances relating to the offender would justify a lower penalty. Accordingly this court would find that those cases are below the range for the case at bar.
101This court would find that the lower end of the range of sentence for this case is far above the submission of the defence. The court would find that the low end of the appropriate range of sentence for this offence and this offender is in excess of 12 months, and potentially one of 14 months incarceration or longer.
102The Crown respondent has submitted that the appropriate sentence is 16 months incarceration, and that a sentence of less than 12 months incarceration would be inappropriate in this case.
103As noted herein, this court has made this determination as to range of sentence absent any consideration of the mandatory minimum penalties set out in the Criminal Code, either with respect to the offences of possession or make available child pornography.
104As noted herein, the Court of Appeal in John has held that the mandatory minimum punishment of 6 months incarceration for possession of child pornography, where the crown proceeds summarily, is unconstitutional. This court finds that the concurrent mandatory minimum punishment of 12 months incarceration for possession of child pornography, where the Crown proceeds by indictment, is also unconstitutional. Responding to the defence challenge as to the mandatory minimum punishment of 12 months incarceration for make available child pornography, this court applies the 2016 Supreme Court of Canada case of R. v. Lloyd. This court has found that the lower level, or bottom of the sentencing range for Mr. Bartley is in excess of 12 months, and perhaps 14 months incarceration. Accordingly, this court finds that the mandatory minimum punishment does not materially exceed the bottom of the sentencing range applicable to Mr. Bartley. As a result, this court declines to consider the constitutionality of the 12 month incarceration as a mandatory minimum punishment.
Consideration of sentence in this case :
105The court must consider the appropriateness of the past sentences imposed by courts, for similar offences and similar offenders, in the context of those principles. The court has set out above what it finds to be relevant case law and the sentencing range for this offence and this offender, for purposes of the constitutionality argument.
106The court must also carefully consider the circumstances of the offences before this court, in terms of the various child pornography images and aggravating and mitigating factors, and the circumstances of the offender, in imposing an appropriate sentence in this case.
107The court has exercised caution in considering sentences imposed before the 2015 amendments to the Criminal Code which increased the maximum penalties for the offences. The court considers the principles set out by the Supreme Court of Canada in the Friesen case, that sentences need to be increased. Cases for offences committed prior to the 2015 amendments to the Criminal Code, which increased penalties for child pornography offences, must be examined through the Friesen filter in that they were imposed when the gravity of the offence was considered less serious than the offences before this court. For sentences that were imposed taking into account mandatory minimum punishments for possession, which have since been declared unconstitutional by the Court of Appeal for Ontario in John, the court is careful to consider whether those courts potentially considered an inflationary floor to sentence in light of the statutory mandatory minimum penalty, which is no longer in effect. It is notable that numerous cases imposed sentences far in excess of that mandatory minimum penalty, such that this type of effect may not have arisen in many cases.
108Overall, this court would make the observation that the trend of the sentencing pronouncements of the Supreme Court of Canada with respect to child pornography and offences against children, which exploit their vulnerability, suggest that the terms of incarceration should be increased. It is somewhat ironic this court would find, that at the trial level, courts in dealing with potentially unique factual situations which constitute offences of child pornography (stated as a reasonable hypothetical such as a boyfriend and girlfriend cell phone picture), and provide basis for striking down mandatory minimum penalty for those offences, are also used as a basis to argue that the range of sentence for child pornography should be decreased at this time. Cases which have been released following John, have suggested that caution should be exercised in reviewing cases prior to a declaration of unconstitutionality of the mandatory minimum penalty. In that regard, caution is potentially to be exercised as it relates to possession of child pornography sentences following John, which was released in 2018, if an inflationary floor was created arising from the previous mandatory minimum penalty set out in the Criminal Code. It is also relevant to note that this court also has before it the additional offence of make available child pornography.
Legal Parameters :
109For the more serious offence before the court, make available child pornography, contrary to s. 163.1(3) of the Criminal Code, a straight indictable offence, the maximum punishment is a period of 14 years incarceration. For the less serious offence of possession of child pornography contrary to s. 163.1(4), for which the Crown proceeded by indictment, the maximum punishment is a period of 10 years incarceration. There is no mandatory minimum period of imprisonment in effect for the possession offence.
Position of Crown and Defence on Sentence :
110Both counsel take the position that a global sentence is appropriate for both offences. A recent position of the defence is that a sentence of 6 months incarceration is appropriate, to be reduced to an intermittent sentence of 3 months or 90 days. After the defence learned that this court would not find it necessary to rule upon the constitutional challenge to the mandatory minimum penalty for make available child pornography, the defence returned to its original sentence submission of the minimum of 12 months incarceration. The defence takes no position with respect to the ancillary orders, other than opposing the imposition of a s. 161 order. The Crown seeks a sentence of 16 months incarceration, as the original position it took at the time of the guilty plea, together with a period of probation, various ancillary orders including a s. 161 order, an order that a DNA sample be taken, a SOIRA order, and a forfeiture order for the items used for the child pornography.
Mitigating and Aggravating Factors :
111In Kwok, Justice Molloy set out the various mitigating and aggravating factors in sentencing for offences of this nature. The court reviewed this case above in the reasons. This case has often been referred to by other courts for sentence for child pornography offences. The court has also noted above the case of Oliver, in the United Kingdom, which has adopted a classification system for pornography collections, which sets out aggravating factors. In this case, the court considers the following factors.
(i) Mitigating factors :
112Mr. Bartley has entered a relatively early guilty plea to the charges, indicating his remorse for this offence, and saving the community the need to prove guilt at a trial. This is clearly a mitigating factor. He was cooperative with the police. There was never an issue in this case as to whether there would be a guilty plea, that was always the intention of Mr. Bartley. Although there has been a significant delay following the initial guilty plea, a notable portion of the initial delay was caused by the Covid 19 pandemic which ceased in person cases in this court. This was followed by the constitutional challenge brought by the defence, sometime later. Delays arose as well with counsel preparing written and then doing additional oral submissions for this case.
113Remorse is a mitigating factor, as noted by the Supreme Court of Canada. in Lacasse (see paras 77-78) and in Friesen (see para 165). Mr. Bartley has also filed a statement of apology, which has been filed as an exhibit in the proceedings. The court accepts the statement as genuine. He has shown insight into his problem as reflected by those materials and that statement. When insight is combined with remorse, this can be an indication that the offender has appreciated the gravity of the offence, and will exercise some self-discipline to reduce the likelihood of further offending. Mr. Bartley has indicated a willingness to submit to treatment and counselling, although it has not taken place to this point.
114The defence has submitted that as a result of publicity relating to these charges, Mr. Bartley lost his employment, and he was unemployed. For some period of time he was on Ontario Works. Since that time he has been working for a company in the receiving department. The court would note that as it relates specifically to the element of publicity, the Court of Appeal for Ontario in Joseph, [2020] O.J. No. 5031, held that the trial judge had erred in principle in relying on publicity to find a reduced need for general deterrence. (see paras 93, 118 to 121). The court identified adverse publicity as a collateral consequence of the commission of an offence. It is not necessarily an aggravating or mitigating factor (see R. v. Suter, 2018 SCC 34, at para 46-48), nor is it tied to the moral blameworthiness or seriousness of the offence. If relevant at all, it is in determining how the individual circumstances of the offence and offender affect the appropriate individualized sentence. In that case, the Court of Appeal gave the element of publicity little weight, and noted that it may serve to reduce some of the role of specific deterrence.
115The Supreme Court of Canada in Friesen (see para 91) has added to the list of mitigating factors a category of offenders who suffer from mental disabilities that impose serious cognitive limitations, that will likely have reduced moral culpability. In Joseph, in 2020, the Court of Appeal identified serious mental health problems for which the offender had been inadequately treated, as a factor. In that case the offender had at times been suicidal. Neither of those factors apply to Mr. Bartley. His diagnosis of ADHD, where he receives no medication, as set out in the report of Dr. Pearce, does not place him in this type of category for consideration. There is also an indication that he suffers from persistent depressive disorder, and alternatively could be suffering from an adjustment disorder. As well, Dr. Pearce opined that he suffers from a mild cannabis use disorder. That is not, this court would find, in the category of a serious mental health problem.
116Where an offender has an indigenous background, this can have a mitigating effect on moral blameworthiness. Mr. Bartley has not been identified as a person with an aboriginal background.
(ii) Aggravating factors :
117In Kwok, the court considered the fact that there was distribution of the pornography to be an aggravating factor. In this case, it is actually one of the offences for which Mr. Bartley will be sentenced, and there is no doubt that it is a more serious offence than simple possession of child pornography. It is not an aggravating factor per se¸ but rather just one of the offences for which a global sentence will be imposed. In considering a global sentence, having this as one of the subject offences makes this factor relevant.
118The nature of the child pornography collection is an aggravating factor. As outlined above, it had elements of heightened depravity, many of the images included children under 2 years of age, bondage, explicit acts of anal, and vaginal penetration as well as oral sex. It was not simply a collection of “posing” images. There was an image of ejaculate on a child. There were images of bestiality, and heightened depravity. The images are described above in paragraphs [16] through ]20]. While the quantity of images in the collection is less than other cases, the quality of the collection is aggravating.
119Of the 39 images, there were 3 of children under approximately 4 years of age. The collection included images with the dominant focus being a child’s genitals, showing fellatio, vaginal penetration and anal penetration. Various images are described in evidence, including a comment on one for a 7 to 9 year old girl, related to buying her whatever Christmas present she wanted (using much more graphic words) if she permitted anal intercourse. Nine other specific images were described, of the various positions, actions and apparent ages of the children depicted, although the defence challenged the ages of four of the children depicted, and one of the nature of the act depicted. The defence appears to challenge the submissions as to apparent age on the basis that the child victims could have been older than suggested by the Crown. Obviously, not knowing the identity of the children in the images, there is no way to prove their ages. Having viewed these images, the Court finds that the apparent ages of the children in those challenged by the defence were potentially up to a couple of years older than the age suggested by the Crown, but nonetheless were young children. (The defence challenged apparent ages of two children the crown submitted were 3 to 5 years, and two children where the crown submitted were 5 to 7 years of age.)
120In the collection of Mr. Bartley there were 55 videos of child pornography. They included 20 videos depicting children of approximately 4 years of age and under. Two of the videos were of bondage, and one was of bestiality. The sexual acts included vaginal and anal penetration, fellatio, cunnilingus, digital touching and penetration and sexual acts between children. The defence challenged the crown’s submission that an image of a diaper being removed from a female was approximately 1 year of age. The defence submitted that where the crown submitted a video which contained images of 3 to 4 year old girls, some of the girls could have been older. In an image the crown submitted was of a 5 to 7 year old girl, the defence submitted that one could not tell the age of the child, which the court would agree given the perspective and what is shown of the girl. Other images in evidence were summarized of girls being 3 to 5 years of age or 5 to 7 years of age. Where the defence challenged the ages of the children as noted herein and the Crown was unable to lead evidence to prove the submitted age, the court considers the age as submitted by the defence. There is not a huge difference in terms of the ages of the children who were challenged by the defence.
121The images were initially described in paragraphs [16] through [20] above. Numerous images showed bondage. In one image there was a white rope binding the child’s extremities to facilitate a sexual act. In an image a child subject to bestiality was also bound, placing the image at the extreme end of depravity. Another was a particularly horrific video which had a portion of a compilation of videos, where a child appears to be penetrated anally or vaginally from behind, while she was hunched over with her face in the toilet. It is not clear whether there was water or other contents in the toilet at the time this was happening. Clearly, this is an extreme example of heightened depravity.
122It is also to be noted that the ages of the children in the collection include a number of infants, under the age of 2 years. In this case there were infants who were subject to bestiality and bondage as noted herein. In this collection there was also an image of a fairly young pre-pubescent boy with forced fellatio with an adult male who appeared to be experiencing some amount of discomfort, and for that reason, that is an aggravating feature in this case.
123Mr. Bartley does not have a prior criminal record, accordingly that is not an aggravating factor.
124In terms of the risk factor, Dr. Pearce addressed this in his report. The court referred to this in paragraph [42] above. Essentially phallometric testing directed by Dr. Pearce was uninterpretable. A diagnosis of pedophilia or hebephilia could not be excluded. Dr. Pearce indicated that it is not clear what risk he presents if any for committing a hands-on sexual offence. Nonetheless Dr. Pearce opined that Mr. Bartley is at a low risk for re-offence (future possession of child pornography charges). The court is somewhat of a loss in having carefully read, multiple times, the report of Dr. Pearce and the addendum, in terms of understanding the basis for this opinion of low risk. Nonetheless, Dr. Pearce recommended sexual offender treatment programming, geared to those with possession of child pornography charges. If Mr. Bartley is permitted to use a computer, Dr. Pearce opined that his online activities should be routinely and randomly monitored to ensure he does not re-offend. It is notable that despite the low risk opinion of Dr. Pearce, there is a suggestion that there be treatment and that monitoring of computer use by Mr. Bartley be performed. Dr. Pearce also indicated that Mr. Bartley would benefit from ongoing counselling to deal with his mood and proclivity towards marihuana. An antidepressant would help with his mood.
Sentencing principles :
125In addition to the sentencing principles set out above, the court also considers those principles statutorily provided in the Criminal Code. A sentence should be similar to sentences for similar offenders for similar offences in similar circumstances, see 718.2(b). The court has considered many other sentences imposed by courts, as noted above in the reasons. The court considers totality as a general principle, although given that it is imposing a global sentence for the offences before the court, with the sentence on the second count to be concurrent, it is of less importance. The court considers judicial restraint, that Mr. Bartley not be deprived of liberty, if less restrictive sanctions may be appropriate in circumstances, see s. 718.2(d). The court specifically notes that as an offender with no criminal record, this is his first term of incarceration, and as case law has indicated that should be of the least length which is appropriate. The sentence is being imposed in a situation where deterrence and denunciation are paramount, although the court does not lose sight of the principle of rehabilitation, and that a rehabilitated offender provides greater protection to the public. In this case, the court seeks to address rehabilitation with a recommendation that Mr. Bartley serve the sentence imposed by the court at the Ontario Correctional Institute (O.C.I.), where he can obtain appropriate treatment while in custody. The court also addresses rehabilitation in the probation order and the conditions in that order. The court is also mindful of the provision that 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, s. 718.2(e).
126The court noted that Mr. Bartley had stated to Dr. Pearce that he “traded” in child pornography on Kik in 2015 on online forums. The Crown has made a submission that his prior engagement in the act of make available child pornography, for which Mr. Bartley is being sentenced, is not an isolated one. It is important to make clear that this court is only imposing a punishment for the offences before the court.
127In this case, Mr. Bartley has served a period of 2 days of pre sentence custody, which will be given enhanced credit of 3 days. Although no request was made for further pre sentence custody credit, the court notes that the nature of the bail orders imposed were not particularly restrictive. For example, there was no house arrest or curfew condition imposed on Mr. Bartley while on release. Accordingly, there is no further pre sentence custody credit considered in this case.
128In considering the quantum of a sentence of incarceration, the court carefully considers the fact that the community is in the midst of a Covid 19 pandemic. That was a backdrop for this case, for a considerable period of time when the sentence was delayed for a considerable time. There is no doubt that any inmate or detainee in a congregate setting, such as a jail, is at a greater risk of contracting Covid 19 while in that setting. As time has gone by, many more people have obtained vaccinations. The parties also have not advised the court as to the updated situation regarding jails, such as Toronto South, or the Ontario Correctional Institute, in terms of whether the detainees and inmates are receiving vaccinations, and the number of people in those detention centres that currently have been diagnosed with Covid 19. There is no doubt that the situation with the Covid 19 pandemic is different than it was in 2020 and earlier in 2021. The court has carefully considered a number of cases, some of which had specific material in evidence regarding Covid 19 pandemic outbreaks in the institution, and other relevant information. Those cases the court has considered include R. v. Hearns , 2020 ONSC 2365 and R. v. Studd, 2020 ONSC 2810. The court has also considered the Court of Appeal judgment of R. v. Morgan, 2020 ONCA 279, [2020] O.J. No. 1978 (C.A.), wherein the Court commented that this an issue for the consideration of parole authorities in their decisions with respect to release. In R. v. Lariviere, [2020] O.J. No. 2264 (C.A.) the court also declined to reduce an imposed sentence in light of the Covid 19 pandemic. More recently, the much higher prevalence of first and second dose Covid 19 vaccinations in Ontario has been widely reported. The much lower number of new cases of Covid19 in Ontario more recently is also widely reported. There is no information before the court as to Mr. Bartley being vaccinated or not vaccinated for Covid 19. There is no evidentiary record of there being a lack of face coverings for inmates or detainees in custody. Mr. Bartley has no underlying medical condition which would potentially make him more vulnerable should he contract Covid 19. A sentence must be proportionate, and the court considers the fact that the Covid 19 pandemic is still a fact of life in Ontario. While a person sentenced to a period of custody is subject to higher risk than in the public, this is not a factor that this court considers that should justify a result of a major reduction of sentence for Mr. Bartley at this point in time. It is nonetheless still a factor to consider.
129In all of the circumstances, the court finds that the appropriate sentence for the offences before the court and this offender, is one of 15 months of incarceration. However, given the pre sentence custody credit of 2 real days, which will be enhanced to a credit of 3 days, and the ongoing Covid 19 pandemic, the court reduces the sentence by one month, which will result in a sentence of 14 months incarceration. The 14 months incarceration sentence will be imposed on the count of distribute child pornography and given the global nature of this sentence, there will be a concurrent 14 months incarceration imposed on the count of possession of child pornography. The court will make a recommendation to the penal authorities that the term of incarceration be served at the Ontario Correctional Institute (O.C.I.), where there is treatment available for offenders who have committed offences related to child pornography and other sexual offences. The judicial recommendation will be for sexual offender treatment geared to those persons with possession of child pornography offences. This court has learned that notwithstanding the Covid 19 pandemic, this treatment continues through O.C.I., although it is administered at the Maplehurst Correctional Centre. The court has also learned that after a judicial recommendation of this nature, that Mr. Bartley will be eligible to be transferred from the Toronto South Detention Centre to O.C.I., to serve his sentence at that centre.
130This term of incarceration will be followed by a period of 18 months probation. There will be the following terms of probation as part of that order:
Report to probation officer within 3 working days, (telephone no.), and thereafter as directed and required.
Do not use or possess any device capable of (a) storing data in a digital format including, but not limited to, computers, handheld devices (Blackberry, etc), personal digital assistants (PDAs), cellular telephones, digital cameras/video cameras, OR (b) accessing the Internet or composing, transmitting, or receiving electronic mail (“email”), UNLESS:
a. The possession or use of such a device is required for purpose of employment; is used and accessed only at the place of employment; AND the offender obtains the written permission of the Probation Officer for the proposed possession of the device in advance;
OR
b. The offender is using the device to search for, or negotiate employment, or for the purpose of accessing an employment schedule and only while in the direct presence of an adult approved of by the probation officer,
OR
c. The offender obtains written permission from the Probation Officer to possess any such electronic devices with the following caveats:
The offender shall not have an electronic mail (“email”) account without the prior written approval of the Probation Officer;
Where approval for an electronic mail (“email”) account is granted, the offender is permitted to have ONLY one email account, which the offender shall not change or use to create any other email account(s), and
The offender shall provide to the Probation Officer sufficient reliable, verifiable information regarding the electronic mail (“email”) account to permit the Probation Officer to monitor the offender’s use of the electronic mail service
Do not subscribe to, or access by any means whatsoever, any internet service or similar communication service except as may be required by your employment, and except for a standard use cell phone which does not have the capacity to access the Internet and then, only with the prior written approval of your Probation Officer, and upon providing all related subscription documentation to your Probation Officer as proof of the limitations and terms of service.
Provide the Probation Officer with accurate, up-to-date information regarding his/her Internet Service Provider (ISP) account. This information includes, but is not limited to, the name of the Internet Service Provided, and the offender’s account number and billing address.
Do not use any electronic device to communicate with the person under the age of 18 years, with the exception of your child J.B. if permitted by Family Court order.
Do not use any electronic device to access Internet ‘chat rooms’ or ‘social networking sites.’
Do not to possess or access child pornography, including written content.
Do not to possess or access any images of children who are, depicted to be, or appear to be under the age of 18 years who are naked or who are portrayed in a sexual manner.
Do not to be in the company of any person under the age of 16 years unless such person is a family member and when also in the company of a close family friend over the age of 21 years and the offender has the permission of the lawful guardian of that child and he has the written permission of his Probation Officer. As it relates to your child J.B., this must be permitted by order of Family Court. There will be an exception for your child expected to be born in October of 2021, unless an order of Family Court orders otherwise.
Do not contact or communicate with children under the age of 16 years unless in the company of any of the following persons, Beatrice Bartley, the offender's mother (DOB […], 1959), David Bartley, the offender’s brother (DOB […], 1983), Raecheal Goddard (DOB […], 1998) and Hellen Nomugisha (DOB […], 1994), or another adult over the age of 21 years who is approved of in advance by the Probation Officer. There may be contact or communication with your child J.B. if approved by Family Court. There will be an exception as it relates to your child expected to be born in October of 2021.
Attend for assessment and/or counselling as directed by your Probation Officer for issues related to child pornography and sexual offences, and mental health issues, be amenable to such programming as recommended, and sign any released required to allow the Probation Officer to monitor compliance with treatment or counselling.
Seek full-time employment or attend for job training.
Advise probation of your change in address 24 hours prior to any such change.
Ancillary Orders :
131Given that the offences before the court are two designated offences, pursuant to s. 490.011(1) of the Criminal Code, there will be an order requiring that Mr. Bartley comply with the Sex Offender Information Registration Act for life, pursuant to s. 490.013(2.1), and relying upon R. v. Long, 2018 ONCA 282 (LTA denied) .
132There will also be an order that a DNA sample be taken, as both offences are primary designated offences, pursuant to s. 487.051 of the Criminal Code. In making this order, the court notes that the defence takes no position and is not opposed to the order. The court is not satisfied that the impact of such an order on his privacy and security of person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice, to be achieved through the early detection, arrest and conviction of offenders.
133The Crown has requested that the court impose a s. 161 order under the Criminal Code, specifically worded and providing various exceptions. The defence is vigorously opposed to such an order. It is a discretionary order. This court has carefully considered various cases, including R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, and R. v. Schultz, 2018 ONCA 598, [2018] OJ 3526 (CA). The court has also carefully considered the circumstances of this offender and the offences before this court. There is a balancing of factors that is required in considering such an order. The court finds that a s. 161 order is justified in this case, however it will in the wording of the order take steps to ensure that the order is a reasonable restriction on the liberty interests of Mr. Bartley. It will not prohibit him from using devices necessary for employment and participating in employment. The court has exercised its discretion and finds that the order should be made in this case, with particular wording and exceptions to address the nature of the balancing of the interests of Mr. Bartley.
[134] In this case, the court makes a s. 161 Criminal Code order for a period of 10 years, prohibiting Mr. Bartley from :
(a) Attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre, except in direct and continuous presence of one of the following persons : Beatrice Bartley, the offender's mother (DOB […], 1959), David Bartley, the offender’s brother (DOB […], 1983), Raecheal Goddard (DOB […], 1998) and Hellen Nomugisha (DOB […], 1994);
(b) Seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;
(c) Having any contact – including communication by any means – with a person who is under the age of 16 years, unless the offender does so under the supervision of a designated person. A designated person includes any one of the following persons – Beatrice Bartley, the offender's mother (DOB […], 1959), David Bartley, the offender’s brother (DOB […], 1983), Raecheal Goddard (DOB […], 1998) and Hellen Nomugisha (DOB […], 1994). There shall be an exception to this term for his child J.B. if permitted by Family Court order, and for his child expected to be born in October 2021 (unless a Family Court order prohibits such contact), or;
(d) Not to use or access the Internet or other digital network unless Mr. Bartley does so:
(i ) On his own personal telecommunications device,
Your own personal telecommunications device, for which you have provided Police Constable Brendan Alexa (Badge #9163) or his designate at Toronto Police Sex Crimes Unit (416-808-7474), 40 College Street, Toronto, in writing, the make, model, serial number and service provider as well as any telephone number connected with the device;
which is equipped with software or hardware that blocks access to:
i. Social networking sites (including but not limited to facebook, Twitter, and Tumblr);
ii. Peer-to-peer file sharing networks (including but not limited to motherless, limewire, gnutella, bearshare); and
iii. Usenet or freenet
which does not have scrubbing software installed and does not save files in an encrypted fashion.
(ii ) On any other telecommunications device unless the offender does so under the direct and constant supervision of a designated person. Any of the following people can be a designated person for that purpose :
i. Beatrice Bartley, the offender's mother (DOB […], 1959);
ii. David Bartley, the offender’s brother (DOB […], 1983);
iii. Raecheal Goddard (DOB […[, 1998); and
iv. Hellen Nomugisha (DOB […], 1994).
(iii ) Where you are not self-employed, you may use or access the Internet or other digital network at your place of business, for business purposes and in accordance with IT and other policies at your place of business. If you require the use of SLACK to access a work schedule, you may do so for that limited purpose only.
(iv ) Not to use any telecommunication device to access the Internet or other digital network in order to:
a. Access child pornography;
b. Access or participate in chat rooms, bulletin boards or other social media that discuss or promote child exploitation, child pornography, sexualized images of children or other child exploitation material; and
c. Access usenet or freenet.
135The court waives victim fine surcharges for both offences. Although Mr. Bartley has been working recently, his overall financial situation is such that the court declines to order victim fine surcharges.
Released: June 28, 2021
Signed: Justice Beverly A. Brown