R. v. Cristoferi-Paolucci, 2017 ONSC 4246

CITATION: R. v. Cristoferi - Paolucci, 2017 ONSC 4246

COURT FILE NO.: CR-15-50000587

DATE: 20170817

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Jordan Cristoferi-Paolucci

Applicant

Michael Wilson, for the Respondent

Samara Secter, for the Applicant

HEARD: June 6 and June 15, 2017.

SENTENCING/ CONSTITUTIONAL CHALLENGE

McWatt, J.

1On March 3, 2017, I found Jordan Cristoferi-Paolucci (Mr. Paolucci) guilty of the following offences. He is now before me for sentencing and brings a constitutional challenge of the mandatory minimum sentences (MMS) attached to those offences.

1. Counts 8 and 18 – Luring (communicating by means of telecommunication for the purpose of making Child Pornography) (A.P. and M.M.)
2. Count 10 – Make Child Pornography (A.P.)
3. Count 13 – Possess Child Pornography (A.P.)
4. Count 14 – Access Child Pornography (A.P.)
5. Count 16 – Sexual Exploitation (A.P.); and
6. Count 19 – Attempt to Make Child Pornography (M.M.)

2Pursuant to the principle in R. v. Kienapple, 1974 CanLII 14 (SCC), [1974] S.C.J. No. 76, counsel agree that Count 19 should be conditionally stayed as the applicant’s attempt to make child pornography with M.M. is wholly encompassed within the facts supporting the conviction for the offence of Luring M.M. in Count 18. The charge is stayed.

THE FACTS

3In 2012, Mr. Paolucci was a coach and referee in the Etobicoke Basketball Association and was a coach in the Etobicoke Thunder Elite basketball program. The applicant also ran a summer training camp for aspiring basketball players known as the Bolt program. Through his role as a coach, the applicant assisted a number of players in achieving scholarships to play basketball at the university level in both Canada and the United States.

A.P.

4In his capacity as a coach, the applicant met A.P. in 2012. The victim was 15 and 16 years old during the relevant time period. The applicant was around 23 years old. Early on in their relationship, Mr. Paolucci identified himself as someone who could assist A.P. to achieve his dreams of playing basketball for Team Ontario, Team Canada and competing at the university level. The applicant told A.P. that he knew the coach of Team Ontario and that he sat on the board of the Ontario Basketball Association. The applicant had the power to determine what team A.P. played for and to control his playing time. Both inferentially and directly, Mr. Paolucci made it clear to A.P. that he had the ability to influence his future in the sport.

5As the relationship between the applicant and A.P. developed, the two began to spend time together socially. The applicant would take A.P. to the movies or for a meal. He began to communicate with A.P.’s father about him.

6It was in the context of this relationship that the applicant, when A.P. was between the ages of 16 and 17 years, began a 9 month campaign to acquire sexually explicit photographs and videos of him. The applicant secured the participation of A.P. by exploiting his financial needs as a teenager - offering him money, food, clothing and even a cellular telephone in exchange for sexually explicit photos and videos. The applicant cloaked his requests for this sexually explicit material as “bets” in order to make them seem more palatable to A.P. who is a heterosexual male. The details of every photograph and video produced were directly controlled by Mr. Paolucci. Photographs or videos that did not meet his express parameters were rejected as unsatisfactory. Despite having regular weekly contact with A.P., the applicant never made a request in person for A.P. to engage in any of these acts. All requests were made through text messages or online communication. By his own admission, the applicant’s goal was to force A.P. to engage in the recording of ever increasingly explicit or “outrageous” sexual acts solely for his amusement.

7Over the 9 month period, he convinced A.P. to send about 12 – 13 photographs of his penis and 5 videos depicting acts involving his genitals. Three of those videos depicted A.P. engaged in sexual acts. In two of the videos, A.P. can be seen masturbating to the point of ejaculation. On one occasion, he does so using a sex toy purchased for him by the applicant.

8Mr. Paolucci’s demands for sexually explicit material were issued in the context of a relationship where he was, at all times, in a position of both trust and authority with respect to A.P.. Many of Mr. Paolucci’s demands for explicit videos and photographs were issued in the same text conversations in which he exercised control over A.P.’s behaviour, both on and off the basketball court.

9The applicant’s actions were not limited to electronic communications. On at least three occasions during the time he was obtaining sexually explicit photographs and videos of A.P., he, for a sexual purpose, touched the boy’s genitals over his clothing – in a game he initiated on a bet to see which one of the two would let go first.

10The applicant had clear knowledge of both A.P.’s age and his level of maturity. He engaged in this behavior while also having been put on notice that it was wrong. Earlier, another player acquainted with the applicant, and who had also been asked to provide a photograph of his penis as a “bet”, declined the invitation and told Mr. Paolucci that what he was doing was akin to the behavior of coach Sandusky at Pennsylvania State University (a reference to a then recent national sex scandal publicized widely in the news media). Instead of putting a stop to his routine, Mr. Paolucci got angry with the boy and continued to ask others for pictures of their penises. A.P. was one of those boys.

11Eventually, the applicant’s actions resulted in a situation that A.P. testified was “out of hand”, forcing him to report the matter to another coach of the basketball team and other senior members of the organization.

M.M.

12During this same time frame, the applicant targeted another young basketball player, M.M., who was 16 years of age. M.M.’s relationship with the applicant was not as developed as that between the applicant and A.P.. Nonetheless, the applicant held himself out to M.M. as someone who could influence his basketball career. Their relationship was one of trust.

13On 3 or 4 occasions, the applicant attempted to have M.M. create and send him an explicit photograph of his penis. To get his participation, Mr. Paolucci challenged the victim about the size of his penis in the guise of a bet and when M.M. refused to get involved, the applicant sent him a pornographic image of a naked woman. He also offered the boy free basketball clothing. Mr. Paolucci was unsuccessful with M.M..

14The applicant engaged in this pattern of conduct with M.M. at a time when he knew M.M. was a child with whom he had developed a relationship of trust. As he had with A.P., the applicant engaged in this behaviour with M.M. while he had been put on notice by the other player that it was reprehensible to do so.

15During his testimony at trial, Mr. Paolucci denied that he received any sexual gratification from the images and videos he obtained from the complainants and the similar act witnesses. He maintained that he engaged in the behaviour for “shock value” and that he did not obtain any of the material he got from these individuals for a “sexual purpose”. The applicant testified that he engaged in the activity with the two victims for reasons of pure entertainment. He testified that he paid out hundreds of dollars in exchange for these photographs and videos out of a need for amusement. To date, Mr. Paolucci has offered no credible explanation or psychological opinion that would assist me in understanding his behaviour and gauging whether or not he poses an ongoing risk to children in our community.

16Whatever the applicant’s motivations were – whether to amuse himself and/or exercise some form of cruel control over the players, his methods and intent involved the production of child pornography.

POSITIONS OF THE PARTIES

17The various provisions under which the applicant was found guilty have these MMS:

A. s.172.1(2)(a) – Luring - 1 year minimum sentence;

B. s.163.1(2)(a) – Make Child Pornography - 1 year minimum sentence;

C. s.153(1)(a) – Sexual Exploitation – 1 year minimum sentence;

D. s.163.1(4)(a) – Possess Child Pornography – 6 month minimum sentence;

E. s.163.1(4.1)(a) – Access Child Pornography – 6 month minimum sentence.

The Applicant

18Mr. Paolucci, seeks a declaration that ss. 172.1(2)(a), 163.1(2) (163.1(2)(a) as it was at the time of the offence), 153(1.1)(a), 163.1(4)(a) (as it was at the time of the offence), 163.1(4.1)(a) (as it was at the time of the offence) of the Criminal Code violate s. 12 of the Canadian Charter of Rights and Freedoms and are not saved by s. 1 of the Charter. Therefore the MMS do not bind this court in imposing sentence.

19The parties made submissions on sentence before me on June 6, 2017 as part of the first step of the constitutional challenge, which is to determine whether the MMS are grossly disproportionate for Mr. Paolucci. At the hearing, they set out the applicable case law and asked that after having considered it, I indicate to them the appropriate range of sentence that I would impose for the offences.

20On June 9, 2017, I told the defence and the Crown that the range of sentence I found to be appropriate in this case was one of 12 months to 2 years less 1 day, with an emphasis on the higher end of that range.

[21] Mr. Paolucci had brought the s. 12 Charter challenge, initially, to argue that the appropriate sentence was a period of incarceration of 9 to 12 months. Now, the applicant will also argue that a conditional sentence, in the range I have indicated is the appropriate one, is a fit sentence in this case. Before that can be done, however, the parties need a ruling on the constitutional question.

22I will deliver the final reasons for sentence after this ruling on the Charter challenge.

The Crown

23The Crown submits that consecutive sentences would ordinarily be warranted for the offences committed against each victim. It recognizes, however, that such an approach in this case would result in a total custodial sentence of 40 months in jail - a sentence that would be excessive given these particular circumstances. The Crown maintains that the principle of totality requires that concurrent sentences be imposed for each offence for which the applicant has been convicted and asks for the following custodial sentences:

Count 8 – Luring (A.P.) – 2 years less a day

Count 10 – Make Child Pornography (A.P.) – 18 months

Count 13 – Possess Child Pornography (A.P.) – 12 months

Count 14 – Access Child Pornography (A.P.) –12 months

Count 16 – Child Exploitation (A.P.) – 14 months

Count 18 – Luring (M.M.) – 14 months

24As well, the Crown asks for, and the defence does not challenge, the making of the following ancillary orders:

1. An Order for the taking of bodily substances for the purpose of performing forensic DNA analysis pursuant to section 487.051 of the Criminal Code;

2. An order requiring Mr. Paolucci to comply with the Sex Offender Information Registration Act for the remainder of his life pursuant to section 490.02904(3)(d) of the Criminal Code.

3. An Order pursuant to section 743.21 of the Criminal Code prohibiting Mr. Paolucci from communicating directly or indirectly with the following persons while he is serving time in custody:

i. A.P.

ii. M.M; and

iii. M.B.

25Those orders are granted, subject to further submissions by the parties.

THE S. 12 CHARTER CHALLENGE TO THE MMS

The Legal Framework

26Section 12 of the Charter of Rights ensures that “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”

27In R. v. Nur, 2015 SCC 15 at paras. 46 and 77, the Supreme Court of Canada re-stated the following two stage process that a court must engage in when dealing with the question of whether a particular sentence, imposed by operation of legislation, would result in a violation of section 12 of the Charter of Rights:

1. The court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code; and

2. Whether the operation of the legislation requires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence for the offender before the court and, if not, whether reasonably foreseeable applications of the provision(s) will impose grossly disproportionate sentences on others.

28Having already set out what I consider the appropriate range of sentence in this case as 12 to 24 months less a day, with an emphasis on the upper end of that range, I will now consider the rest of the test.

a) What is “Grossly Disproportionate”

29In Nur, at para. 39, the Court re-affirmed the previously established principle that, in order for a sentence to be found to constitute cruel and unusual punishment, it must be “grossly disproportionate” to the offence committed and the circumstances of that offender. Mr. Paolucci must establish that the sentence imposed under the subject legislation would be “so excessive as to outrage standards of decency”, and be “abhorrent or intolerable” to our society. The Court also restated a caution previously set out in R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045 at p. 1073, that courts dealing with these Charter challenges must, “be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation.”

30The applicant must establish that the MMS in this case would result in sentences that are not merely disproportionate or excessive, but are so grossly disproportionate, excessive, abhorrent and intolerable that they would outrage the standards of decency in our society.

b) Assessing Proportionality

31In assessing whether a particular sentence would be grossly disproportionate to a given offender, the court must consider all relevant factors such as the gravity of the offences, the circumstances of the offender and sentencing principles related to the offences (R. v. Morrisey, 2000 SCC 39 at paras. 27, 28, 43 and 44).

c) Reasonable Hypotheticals

32As part of the assessment done during this step of the analysis, the court must also examine any hypotheticals advanced by the applicant as foreseeable circumstances in which the application of the MMS at issue could result in a sentence that is grossly disproportionate to that offence and the circumstances of that offender. The hypothetical scenarios must be “reasonable”. They must be “reasonably foreseeable situations where the impugned law may apply.” Such examples are not to be “far-fetched” or “marginally imaginable”. Hypothetical situations advanced by counsel that are fanciful or remote must be excluded from the analysis (Nur at paras. 56-65).

ANALYSIS

33The Supreme Court has cautioned these courts about assessing the constitutional validity of MMS by reminding us of the principle of deference to Parliamentary decision making. In R. v. Lloyd, 2016 SCC 13 at para 45, Justice McLachlin wrote the following:

Parliament has the power to make policy choices with respect to the imposition of punishment for criminal activities and the crafting of sentences that it deems appropriate to balance the objectives of deterrence, denunciation, rehabilitation and protection of society. Courts owe Parliament deference in a s. 12 analysis. As Borins Dist. Ct. J. stated in an oft-approved passage:

“It is not for the court to pass on the wisdom of Parliament with respect to the gravity of various offences and the range of penalties which may be imposed upon those found guilty of committing the offences. Parliament has broad discretion in proscribing conduct as criminal and in determining proper punishment. While the final judgment as to whether a punishment exceeds constitutional limits set by the Charter is properly a judicial function, the court should be reluctant to interfere with the considered views of Parliament and then only in the clearest of cases where the punishment prescribed is so excessive when compared with the punishment prescribed for other offences as to outrage standards of decency. (R. v. Guiller (1985), 1985 CanLII 5996 (ON HCJ), 48 C.R. (3d) 226 (Ont.), at p. 238)”

The Case Law and the Increase in MMS

34For the last two decades, there has been a consistent focus on finding the appropriate range of sentences for offenders who sexually abuse children. This focus and the change in the sentencing ranges has come about as a result of an increased understanding of the irreparable harm caused to the victims of these offences. This recognition of harm has been set out in the case law.

35In R. v. Sharpe, 2001 SCC 2, at para. 28, Justice McLachlin noted the harm caused by the creation, distribution and possession of child pornography as follows:

Just as no one denies the importance of free expression, so no one denies that child pornography involves the exploitation of children. The links between possession of child pornography and harm to children are arguably more attenuated than are the links between the manufacture and distribution of child pornography and harm to children. However, possession of child pornography contributes to the market for child pornography, a market which in turn drives production involving the exploitation of children. Possession of child pornography may facilitate the seduction and grooming of victims and may break down inhibitions or incite potential offences.

36In R. v. (D.) D., 2002 CanLII 44915 (ON CA), [2002] O.J. No. 1061 (C.A) at paras. 34 to 38, Moldaver J.A. (as he then was) said the following in order to set out appropriate sentencing ranges for offenders who abuse children:

34 The overall message however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in s. 718(a), (b) and (c) of the Criminal Code, commonly referred to as denunciation, general and specific deterrence, and the need to separate applicants from society, must take precedence over the other recognized objectives of sentencing.

35 We as a society owe it to our children to protect them from the harm caused by applicants like the appellant. Our children are at once our most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselves against predators like the appellant and as such, they make easy prey. People like the appellant know this only too well and they exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow.

36 In this respect, while there may have been a time, years ago, when applicants like the appellant could take refuge in the fact that little was known about the nature or extent of the damage caused by sexual abuse, that time has long since passed. Today, that excuse no longer holds sway. The horrific consequences of child sexual abuse are only too well known.

37Two such consequences were identified by the Alberta Court of Appeal almost ten years ago. In R. v. S.(W.B.) and R. v. P.(M.) (1992), 1992 CanLII 2761 (AB CA), 73 C.C.C. (3d) 530 at 535, the court, composed of Major J.A. (as he then was) and McDonald and Quigley JJ. made the following observations:

When the victim of a major sexual assault is a child, it is also no doubt true that such an assault frequently results in serious psychological harm to the victim.

When a man has assaulted a child for his sexual gratification, then, even if no long-lasting physical trauma is suffered by the child, it is reasonable to assume that the child may have suffered emotional trauma, the effects of which may survive longer than bruises or broken bones, and may even be permanent.

One consequence of being abused sexually may be that the child will never be able, as an adult, to form a loving, caring relationship with another adult of the opposite sex, being always fearful, even unconsciously, that such a partner will use sexual acts to hurt him or her rather than as an intimate expression of caring and affection. There is no empirical way of proving that a particular child victim's emotional trauma will or will not make it more difficult or impossible for him or her to love another, without fear of abuse. We have only the recorded experiences of men and women who attribute their difficulties as adults in forming mature and fulfilling relationships to their having been abused sexually when they were children.

Another consequence of being abused sexually may be that the child, when he or she becomes an adult, will treat a child or children as he or she had been treated as a child - that is, he or she may abuse a child sexually. There is no empirical way of proving that a particular child victim, when he or she becomes an adult, will do to some child what has been done to him or her. We do know that sentencing judges are commonly told by defence counsel that the accused claims to have been sexually abused by a man (or by a woman, or both) who had stood in a parental relationship to him or her when he or she was a child.

38As is apparent from these passages, with which I completely agree, the Alberta Court of Appeal was focussing on the potential long term effects of sexual abuse. Time alone will tell whether the children in the present case will fall victim to one or both of these consequences. In the short term, the immediate harm to them (a third consequence) is well documented. I have earlier referred to the devastating effects of the appellant's conduct and there is no need to repeat it. Manifestly, the situation in the four affected families is tragic.

37In 2011, our Court of Appeal revisited the (D.)D. case in R. v. Woodward, 2011 ONCA 610. At paragraphs 72 to 73 and 75 to 76, Justice Moldaver restated the harm caused by sexual abusers who prey on children and affirmed the approach he set out in D.D. to be taken by the courts in sentencing such individuals.

38In 2010, the Supreme Court of Canada commented again on the harm posed to our society by the presence of child pornography in R. v. Morelli, 2010 SCC 8 at paragraph 8:

To be sure, offences involving child pornography are particularly insidious. They breed a demand for images that exploit vulnerable children, both economically and morally. Understandably, offences of this sort evoke a strong emotional response. They generate widespread condemnation and intense feelings of disapprobation, if not revulsion.

39Also in 2011, the Ontario Court of Appeal, in R. v. Nisbet, 2011 ONCA 26 at para. 1, noted, with concern, the continued proliferation of child pornography in our society:

Sadly, possession of child pornography facilitated through the internet is on the rise. It is an abhorrent crime that victimizes the most vulnerable members of our society and hence the need for sentences to reflect denunciation and deterrence.

40With this understanding of the harm caused by these offences has come the recognition that an increase in the severity of punishment imposed on persons who commit these crimes is necessary to protect the most vulnerable members our society, to denounce their conduct and to deter others in the community from preying on children to satisfy their deviant desires. This recognition has been reflected in a number of legislative amendments to the Criminal Code. Those amendments have steadily increased the maximum and minimum sentences to be imposed on adults who commit sexual offences against children, legislated the abuse of a child as a statutorily aggravating factor on sentence and mandated that the courts to focus on deterrence and denunciation as the primary sentencing principles when sentencing an applicant who abuses a child.

41The legislated increase of mandatory minimum sentences for persons who commit sexual offences against children, imposed as part of Bill C-10 in 2012, was as a result of the direction taken by the courts to pass sentences that denounce the conduct and deter like-minded individuals from engaging in the same conduct.

42The chart below was submitted by the Crown and sets out the changes in the law for child sexual abuse offences from 2002 to the present.

Criminal Code Offence

Type of Change

Date Change became Effective

153: Sexual Exploitation

Addition of minimum punishment: Indictable offence → 45 days Summary Convictions →14 days Addition of maximum punishment: Summary conviction → 18 months

November 1st, 2005

Addition of minimum punishment: Indictable offence →1 year Summary conviction →90 days

August 9th, 2012

Eligibility for conditional sentence: Not eligible

November 1st, 2005

Availability of section 161 order: Not available

N/A

Age: age of 14 years was replaced with age of 16 years in Section 153(2)

May 1st, 2008

Primary designated offence: Yes

Part of Original list (became “primary designated offence” on June 30th, 2000)

163.1 Child Pornography 163.1 Child Pornography (cont’d)

163.1(2) Addition of minimum punishment: Indictable offence → 1 year Summary Convictions → 90 days Addition of maximum punishment: Summary conviction → 18 months 163.1(3) Addition of minimum punishment: Indictable offence → 1 year Summary Convictions → 90 days Addition of maximum punishment: Summary conviction → 18 months 163.1(4)(a) and(b) Addition of minimum punishment: Indictable offence → 45 days Summary Convictions →14 days Addition of maximum punishment: Summary conviction → 18 months 163.1(4.1)(a) and(b) Addition of minimum punishment: Indictable offence → 45 days Summary Convictions →14 days Addition of maximum punishment: Summary conviction → 18 months

November 1st, 2005

Eligibility for conditional sentence: Not eligible

November 1st, 2005

Availability of section 161 order: Yes, available

July 23rd, 2002

Section 164.2 forfeiture order applies

July 23rd, 2002

Primary designated offence: Yes

January 1st, 2008

163.1(4) 163.1(4.1) Addition of minimum punishment: Indictable offence → 6 months Summary Convictions →90 days

August 9th, 2012

163.1(2) New minimum sentence for Summary conviction → 6 months New maximum sentence for Summary conviction → 2 years less a day

August 9th, 2012

172.1 Luring a Child

Addition of maximum punishment: Indictable offence →10 years Summary conviction →18 months Addition of MINIMUM punishment: Indictable → 1 year Summary → 90 days

June 22nd, 2007 August 9th, 2012

“by means of telecommunications”

August 9th, 2012

Eligibility for conditional sentence: No, not after August 9, 2012. Before August 9, 2012, Not eligible IF a child has actually been the subject of a Serious Personal Injury Offence per S.752

August 9th, 2012

Availability of section 161 order: Yes, available

July 23rd, 2002

Age: age of 18 years was replaced with age of 16 years in section 172.1(1)(b)

May 1st, 2008

Section 164.2 forfeiture order applies

May 29th, 2008

Primary designated offence: Yes

January 1st, 2008

The Circumstances of this Offender

43The mitigating factors in this case are the following:

1. Mr. Paolucci has no criminal record and has, other than the incidents surrounding this case, been a contributing member of his community;

2. He was a young adult around the age of 22 and 23 at the time of the commission of the offences;

3. He has not committed any further offences while on bail for over 4 years;

4. He has a supportive family and community support evidenced by the letters of support he has filed at this hearing;

5. He is gainfully employed and hardworking - if not in his chosen profession as a lawyer;

6. The impact of the convictions has been hard-felt in his life seeing that he has been shamed publicly through the media and has been prevented from practicing law;

7. There is no evidence that any of the material obtained from A.P. was ever disseminated.

44The aggravating factors are as follows:

1. The offences were a serious breach of trust as defined in s. 718.2(a)(iii) of the Criminal Code. The applicant had the trust of the two victims because of his power and authority over their lives due to their aspirations in the basketball field and his role as their coach;

2. The two victims were children as defined by s. 718.2(a)(ii.1) of the Code and the applicant was aware of their ages;

3. There were two victims;

4. There were multiple events in the case of A.P., which took place over part of a year and resulted in several photos and videos being produced by him. There were also a number of times with M.M. where Mr. Paolucci kept trying to procure pornographic photos in the face of being turned down at the requests. In neither of the situations with the two victims was it a “one-off” event.

5. The applicant groomed each victim in what appeared to be very similar behaviour;

6. The applicant behaved like a true predator in obtaining what he wanted – photos of the boys’ genitals;

7. The applicant used electronic communications to remain somewhat distant from the victims and to hide behind a facade of what he called joking and locker room banter in the offences;

8. The behaviour Mr. Paolucci began with in relation to A.P. escalated to physical touching when he proposed a bet that the two of them grab each other’s testicles;

9. The applicant offered money to these young victims. Mr. P was particularly vulnerable. He testified he needed money and did most of what he did for the money and consideration he got from Mr. Paolucci;

10. Neither of the victims offered Victim Impact Statements, but it is not necessary for me to find actual harm in this case. The case law speaks clearly about the risk of harm to the young due to the sexual exploitation of them by an adult;

11. The material extracted from A.P. was expressly sexual.

45The overriding sentencing principles in this case are general deterrence and denunciation. I will add that Mr. Paolucci needs to be specifically deterred. He acknowledged during the trial that what he did was “stupid and immature”. He was unable or refused to admit, however, that what he did to the two victims was harmful. In terms of rehabilitation, there is certainly a prospect for it in the applicant’s case based on some of the mitigating factors I have outlined, but I have no medical or other independent evidence about his risk to reoffend like this in the future. I am unable to say that there is a strong prognosis for his rehabilitation. Although the applicant was attending a form of counselling on his own, he no longer attends.

Section 172.1(2)(a)-Luring (1 year MMS)

46On July 10, 2017, the Ontario Court of Appeal, in R. v. Morrison 2017 ONCA 582, upheld the trial judge’s decision that the one year mandatory minimum sentence in section 172.1 of the Code is grossly disproportionate pursuant to s. 12 of the Charter. As the MMS is of no force or effect in this matter, I am not bound by it in passing sentence on Mr. Paolucci.

Section 163.1(2)(a)-Make Child Pornography (1 year MMS)

47The defendant faces a conviction in count 10 of Making Child Pornography in the case of A.P.

The Offender

48At the time the applicant committed the offence of Make Child Pornography, the maximum penalty where the Crown proceeded by indictment was a term of 10 years in custody. The mandatory minimum sentence is 1 year in custody. The Crown asks for a sentence of 18 months in jail for the creation of the images and the videos of A.P..

49The applicant is responsible for the 12 – 13 images and 5 videos created by A.P., who he groomed at each stage in order to demand material of a more sexually explicit nature. He demanded this material in the context of a relationship of trust and authority. Often, the demands for child pornographic material were made in conversations where the applicant was directly exerting his authority over the victim as a coach. The images and videos were obtained within the context of a relationship where Mr. Paolucci, on three occasions, touched the genitals of A.P. above his clothing for a sexual purpose. While engaged in this activity with A.P., the applicant used the same tactics to attempt to obtain material from a second victim, M.M..

50In R. v. W.M.C.K., [1999] O.J. No. 4141, a female teacher was in a sexual relationship with a 17 year old female student. During the course of that relationship, the offender took photographs of the 17 year old that amounted to child pornography. She pleaded guilty and voluntarily relinquished her teaching certificate. The court imposed a sentence of 6 months in jail but took care to note that, had it not been for the “consensual” and unique nature of the relationship between the offender and the victim and had the offender not relinquished her teaching certificate, the court would not have imposed the 6 month sentence advanced by the parties. The decision in this case was rendered in 1999 - before the decisions of the Supreme Court in Sharpe and Morelli and before the decisions of the Ontario Court of Appeal in (D.) D. and Woodward.

51In R. v. Gryba, 2016 SKQB 123, the Court dealt with an offender who was being sentenced on a second set of child sex offence charges arising out of the same investigation. The offender had originally pleaded guilty to Making Child Pornography Available and Possession of Child Pornography. He was sentenced to two years less a day in jail for those offences. A subsequent examination of an encrypted hard drive found in the offender’s possession at the time of the original investigation resulted in the police locating in excess of 12,000 video and picture images which constituted child pornography. A further 16 images and videos depicting child pornography were found on a laptop computer. The offender subsequently pleaded guilty to two counts of Make Child Pornography and two counts of Possession of Child Pornography as a result of approximately 16 video and picture images located on his computer. At the time of the offences, the offender was a volunteer with the Big Brothers and Big Sisters organization. On several occasions, Gryba took young males under his care as a “Big Brother” to a swimming pool where he surreptitiously videotaped the boys changing into their swim suits. The offender retained the videos but did not share or distribute them in any way. Like the applicant, Mr. Gryba was young, being only 27 years of age. He had a stellar academic history with a goal of becoming a medical doctor. As evidenced from his involvement in the Big Brothers and Big Sisters program, Mr. Gryba was active in his community. The court found the child pornography created by the offender was at the lower end of the scale of explicitness and that an appropriate sentence was one of 18 months custody, to be served consecutively on each count for a total sentence of 3 years on the Make Child Pornography charges alone. The court found that the total aggregate sentence warranted was 5 years in custody.

52I agree with the Crown’s submission that there is no comparison between the applicant’s case and the child pornography in the Gryba case, but there is, however, a meaningful comparison that can be made between the photos and videos produced by the applicant and those produced by the offenders in the Gryba and W.M.C.K cases. The moral culpability of the applicant is significantly greater than that of the offender in W.M.C.K. and, in respect of the making of child pornography, comparable to that of the offender in Gryba. In all cases, the offenders abused a position of trust and/or authority to facilitate the creation of the pornographic material. Unlike the applicant, the offenders in W.M.C.K. and Gryba pleaded guilty. In W.M.C.K., the images were created within the context of a consensual, but morally repugnant, sexual relationship, not for the pure entertainment value found by the applicant in the creation of such material. While there were multiple victims in Gryba who were younger in age, they were not the victims of a campaign of manipulation designed to create the videos, nor was their financial vulnerability exploited in any way. The videos in Gryba were of the young males changing and therefore fell at the lower end of the scale in terms of the sexually explicit nature of the material. In this case, Mr. Paolucci directed the creation of sexually explicit photographs and videos, some of which showed A.P. actively engaged in sexual acts.

53A sentence of 18 months sought by the Crown is entirely within the appropriate range. Even absent a finding by the court that a sentence of 18 months is appropriate, it cannot reasonably be argued that a sentence of 12 months in custody for this offence would be grossly disproportionate to the offence and the circumstances of Mr. Paolucci.

The Reasonable Hypothetical

54The applicant advances two scenarios under this section as “reasonable hypotheticals” in the s. 12 challenge. I find that the applicant has failed to provide fact situations which could realistically arise or that contain enough detail to permit me to engage in a meaningful analysis.

55In the first scenario, the applicant uses the term “young adults” as the alleged victims of the offence. I presume, however, that all of the females captured in the video are under the age of 18. The scenario does not identify the number of females captured by the recording, nor does it state the duration of the recording. Most significantly, there is no information provided to establish how the recording could meet the definition of child pornography, being a recording which shows the females engaged in explicit sexual activity, or that contains, as a dominant characteristic, the sexual organ(s) of the females for a sexual purpose. The recording of females changing in a locker room would not automatically meet this definition, specifically if there was no evidence of the presence of other similar recordings or of the specific intent of the offender to create a recording for a sexual purpose. In Gryba, for example, the videos of the young males changing could have met the definition of child pornography by virtue of a collection of over 12,000 videos and photographs of child pornography in which they were located.

56This locker room scenario advanced by the applicant is of no assistance to me in determining the MMS at issue. In fact, I would question whether charges would be laid.

57The Crown suggests, and I agree, that were the scenario altered to establish that the offender deliberately abused her position to gain access to a locker room where she then surreptitiously created a video that invoked sexual stimulation in the mind of the viewer, included multiple child victims and then kept the video for her own purposes, it would not be grossly disproportionate for a court to impose a sentence of 1 year in jail. The appropriate sentence in the Gryba case (for multiple surreptitious recordings of a young male changing into a bathing suit) was 18 months in jail.

58The second hypothetical scenario advanced by the applicant purports to be based on the case of Walsh, but omits essential elements to establish the existence of offences found in that case. First, the original creation of the photographs could have fallen under the private use exception on the hypothetical facts and the offender would have been entitled to retain those images for his own use. The placement of those lawfully possessed images in a collage, provided it is for his own use, would not amount to Making Child Pornography. The fact that the collage is found outside his room leaves open the question of whether the imagery has been made for dissemination or even if the offender disseminated it. If he did, then the offender in the hypothetical scenario would have deliberately breached the trust of his former child partner in doing so, knowing they amounted to child pornography, for the direct purpose of causing her harm. That was the scenario in Walsh that attracted a finding that a sentence of 8 months custody was appropriate. It cannot be said that the imposition of a sentence of 12 months on this hypothetical offender would be grossly disproportionate.

Section 153(1.1)(a) – Child Exploitation

The Offender

59At the time that the applicant committed the offence of Child Exploitation, the maximum penalty where the Crown proceeded by indictment was 10 years in custody and the mandatory minimum sentence was one of a year in jail. The Crown seeks a sentence of 14 months on this count.

60The accused has been found to have sexually exploited his position of trust and authority with respect to A.P. by touching his genitals above his clothing for a sexual purpose on three separate occasions. This conduct occurred within the context of a wider relationship of exploitation by the Mr. Paolucci of A.P. in which the victim was groomed over months to provide him with child pornography. All of this conduct, including the direct sexual exploitation of the victim, was performed for his personal amusement.

61The respondent and the applicant agree the appropriate range of sentence for the offence of Sexual Exploitation can also be gleaned from an examination of the sentences imposed for the offence of Sexual Interference.

62In R. v. C.M., [2000] O.J. No. 2790, the offender appealed a sentence of 1 year in jail following a conviction for the offence of Sexual Exploitation. In varying the sentence to one of 9 and 1 half months of pre-trial custody, the Court of Appeal noted, at paragraph 8, that the offence consisted of the offender touching the complainant from behind and touching her on her hip or thigh. Both parties were clothed when the touching occurred and the incident was very brief.

63In R. v. Bedard, 2007 ONCA 883, the offender was a teacher who was found guilty of the offences of assault, sexual assault (2 counts) and sexual exploitation (2counts). At the time of sentencing, the court entered a conditional stay on the Sexual Assault counts as the factual underpinnings of those convictions were mirrored as the basis for the Sexual Exploitation convictions. The offender was found to have groomed a 14 year old victim over a one year period in order to “gain her confidence”. Once the offender had gained her trust, he engaged in three separate acts with the victim, all for a sexual purpose. First, on three to five occasions he placed his hand on her thigh underneath her clothing. Second, he took her hand to his mouth and licked it. Third, he picked the victim up by her waist, lifted her off of the ground and asked her what she would do if he kissed her. The offender had no criminal record. Unlike the circumstances of Mr. Paolucci, there was no allegation of any other exploitation of the victim within their relationship. Specifically, the activities were not carried out in the context of a relationship in which the offender was abusing his position of trust and authority to obtain numerous items of child pornography. The sentencing judge found that the appropriate sentence was one of 9 months in custody. That sentence was appealed by Mr. Bedard and affirmed as appropriate by the Court of Appeal.

64Given these authorities, it cannot be said that a sentence of 12 months imposed upon the offender after trial, given the circumstances of this case, would constitute a grossly disproportionate sentence.

The Reasonable Hypothetical

65The applicant presented the two following hypotheticals:

1. The 20-year-old accused is a neighbor and close family friend to a 17-year-old complainant. The neighbour sometimes watches the complainant when her parents are out of town. She is in a position of trust and authority over the complainant. One night, the complainant comes to tell the neighbour that the complainant’s family is having car trouble. In that interaction, the neighbour touches the complainant’s breast briefly. This is not a far-fetched situation. It is the exact scenario in LC (2013 ONCA 277 at para. 2), but for the difference in the age and gender of the offender. Although inappropriate and criminal, if the Crown decided to proceed by indictment, the neighbour, a first time offender, would be subject to one-year imprisonment. This would be grossly disproportionate to the offence.

2. Another reasonable hypothetical: the 60-year-old teacher is answering questions for students before exams. She is an esteemed teacher, with strong family support. It is her first offence. She is taking calls in preparation for an upcoming exam. The student-caller tells the teacher that he thinks she is beautiful. In a moment that is completely out of character, she invites the 17-year-old student to touch her breasts. The 17-year-old immediately tells his mother. The esteemed teacher loses her job, is exposed in the media, and is genuinely remorseful. This is not a “far fetched” hypothetical, it is an extension of the factual scenario in Careen (R. v. Careen, 2012 BCSC 918). If the Crown decided to proceed by indictment, for a grave lapse in judgment (less severe than that in Careen) this teacher would be imprisoned for 12 months. This would also be grossly disproportionate.

66The Crown suggests that the first scenario would not arise in our courts and should not be considered in this analysis. The applicant, however, likens the scenario to that of the case of R. v. L.C., which drew a 90-day intermittent sentence by the sentencing judge (at paras. 84 and 85). I agree with the applicant that a 1 year sentence in the context of this hypothetical scenario would be grossly disproportionate.

67In the second scenario, the Crown contends that the factual scenario in the reasonable hypothetical can be considered by me and that I should find that a 1 year MMS is appropriate in those circumstances. I disagree.

68The Crown relies on the case of R. v. E.M.Q., 2015 BCSC 2001, in which that court dismissed an application seeking a declaration that the MMS of one year for the related offence of Sexual Interference violated s. 12 of the Charter and was therefore of no force and effect in relation the aboriginal offender charged. With respect, that court had unique facts which the trial judge considered regarding the offender before him.

69In this case, the applicant has presented reasonably foreseeable situations which could arise in the application of a sexual exploitation case. The two situations are not “far-fetched” or “unlikely to arise”.

70The first hypothetical, (R v. L.(C.), involved a conviction of sexual interference. The appellant was a 50-year-old man and the complainant was a 15-year-old high school student. One time, while in a car, the appellant touched the complainant’s upper thigh area and tried to put his hand between her legs. A second time, the appellant led the complainant to a basement and tried to touch her breasts and her legs and tried to kiss her. The appellant was a trusted friend of the complainant’s family, who the complainant called uncle. The court found there to be “something of a breach of trust” by the appellant and imposed a 90 day intermittent sentence to be served on the weekends, finding the sentence satisfied all of the relevant sentencing objectives (para. 85).

71The second hypothetical, which cannot be said to be dissimilar to the Careen case, is also not “far-fetched-fetched” or “unlikely to arise”. Mr. Careen was found guilty of sexual exploitation of a student in his grade 12 History class. The 52-year-old teacher engaged in a series of sexually explicit text messages with the student. The judge found that he intended that the student receive his words as an invitation, incitement or counseling to engage in sexual activity with him. The trial judge took into account, among other things, Mr. Careen’s humiliation before a school community, his exposure in the media, his character, and the consequences to his employment. Justice Schultes sentenced him to 60 days to be served intermittently.

72I am satisfied that the two hypotheticals proposed by the applicant are foreseeable, not just in the “general day-to-day application of the law”, but are foreseeably captured by the minimum conduct caught by the offence (Nur, at para. 68). In both those cases, a MMS of one year would be grossly disproportionate pursuant to s. 12 of the Charter and would amount to cruel and unusual punishment.

Sections 163.1(4)(a) and s.163.1(4.1)(a) Accessing Child Pornography/Possessing Child Pornography

The Offender

73At the time the applicant committed the offences of Accessing Child Pornography and Possessing Child Pornography, the maximum period of custody where the Crown proceeded by indictment was 5 years and the minimum punishment was 6 months in custody. The Crown submits that a sentence of 12 months in custody would be appropriate in this case.

74The applicant has conceded that the application of the 6 month MMS to the applicant would not result in the imposition of a sentence that is grossly disproportionate to him in the circumstances of this case.

The Reasonable Hypothetical

75The constitutionality of the MMS of six months under section 163.1(4)(a) has been determined in 2 separate cases in this province by the Superior Court in R. v. Machulec, ONSC November 16, 2016 (unreported) and R. v. John, 2017 ONSC 810. Those cases upheld the constitutionality of the provision. I adopt the conclusions set out in those cases in respect of both provisions under s. 163.1(4)(a) and 163.1(4.1)(a) and add the following remarks.

76In Nur (at para. 71), Justice McLachlin did not foreclose an offender in a later case from rearguing what constitutes a reasonably foreseeable range of the law – although she did note that the threshold for revisiting the constitutionality of a MMS is high and requires a significant change in the reasonably foreseeable application of the law. The Crown argues that the principle of stare decisis precludes a re-examination of the issue of constitutionality in this case because the factual scenario before this court concerning the applicant does not amount to “new evidence” that was not considered in these previous decisions.

77Without deciding whether the principle of stare decisis applies in this matter, I will say this, the reasonable hypotheticals presented here were not considered in the Machulec and John cases. To that extent, they may be “new evidence”. Whether they are or are not, I say the following about them.

78The first hypothetical, based on the case of R. v. Rohrer, 2011 OJ No. 4989, involved the offender downloading a number of images of child pornography. Although the number of images he pleaded to was high, the Crown could only prove both the actus reus and mens rea for 10 to 20 of the images. The defendant lived a pro-social life. He had been fired twice as a result of disclosing the charges to his employers. He had a substantial support system. He was not a pedophile. The trial judge found on the basis of expert evidence that the offender was viewing child pornography as a way to manage his own feelings of having been sexually abused as a child. He did not view the images for his own sexual gratification. The images were a way to reassure himself that he was not alone. The trial judge found that 14 days in jail was the appropriate sentence.

79The applicant submits that giving this offender a punishment of “12 times” that sentence would be grossly disproportionate. The facts of the case could be reasonably tailored to a younger offender, accessing or possessing fewer images.

80The case of R. v. Mahannah, 2013 OJ No. 6330 is provided as another reasonable hypothetical in which the applicant claims that the mandatory minimum would be grossly disproportionate. Mr. Mahannah was a resident of California. He travelled to Ottawa in connection with his employment. In the airport, he was detained after a search of his computer revealed the presence of child pornography. An analysis revealed pictures of cartoon and anime child pornography – not one picture of a real child. Although these pictures were illegal in Canada, they were not illegal in California, and he purchased them legally from a Japanese branch of Amazon.com. The defendant was not a pedophile, he had family support, he was at the lowest possible risk to reoffend. He had no knowledge the pictures were illegal in Canada. As a result of the charges he lost his job. The images were explicit and there were 50,000 of them. He was sentenced to 45 days in prison.

81The applicant argues that 6 months imprisonment would be grossly disproportionate for this kind of offence. This is particularly true if the facts of the offence are changed even slightly to lower the number of images and change their explicit nature. If Mr. Mahannah was 20 years old, had 30 images of animated child porn (with no explicit sexual acts) that he did not know were illegal, sentencing him to imprisonment for 6 months would shock the community. His sentence should be 14 days at most.

82I disagree with the applicant’s submission that imposing a sentence of six months imprisonment for either of these hypothetical offenders “would undermine society’s expectations of fairness and would be so excessive as to outrage standards of decency”.

83I cannot find here that a 6 month sentence for either of the hypotheticals offered in relation to possessing or accessing child pornography would be disproportionate so as to offend s. 12 of the Charter. In fact, the two cases seem to ignore Justice McLachlan’s characterization in Sharpe (at para. 28) about the serious nature of the offences. I repeat it here:

The links between possession of child pornography and harm to children are arguably more attenuated than are the links between the manufacture and distribution of child pornography and harm to children. However, possession of child pornography contributes to the market for child pornography, a market which in turn drives production involving the exploitation of children. Possession of child pornography may facilitate the seduction and grooming of victims and may break down inhibitions or incite potential offences.

84In the first hypothetical, the harm of downloading any number of child pornography images was avoidable. The offender could have sought counselling for his previous abuse rather than perpetuating the “market” for child pornography. In the second hypothetical, that the images were anime and not of live children does not make a difference under the law sanctioning possession or access to child pornography. The number of images, alone, would put the offence easily within a 6 month or more sentence.

85Neither of the hypotheticals create a “clear case to interfere with the considered views of Parliament” and the 6 month punishment prescribed would not be so excessive when compared with the punishment prescribed for other offences as to outrage standards of decency.

DISPOSITION

86For these reasons, the application is granted in relation to sections 171.2 and s. 153(1)(a). The sections in question violate s. 12 of the Charter of Rights. The application is dismissed with respect to ss. 163.1(2)(a) and 163.1(4)(a) and 163.1(4.1)(a).

87The Crown has not argued that s. 1 of the Charter saves the impugned legislation in s. 153(1)(a) of the Code– something that will have to be done before this matter proceeds to sentencing.

McWatt, J.