R. v. Branco, 2019 ONSC 3591

CITATION: R. v. Branco, 2019 ONSC 3591

COURT FILE NO.: CR-12-2163

DATE: 2019-06-12

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Mario Thomaidis, for the Crown

• and -

RUI BRANCO

Edmond Brown, for Mr. Branco

HEARD: April 26, 2019, at Brampton

REASONS FOR SENTENCE

STRIBOPOULOS J.:

Introduction

1After a trial, the court found Mr. Branco guilty of possessing and accessing child pornography, contrary respectively to s. 163.1(4) and (4.1) of the Criminal Code. He was found not guilty of a charge of knowingly making such materials available (s. 163.1(3)).

Circumstances of the Offences

2The court's Reasons for Judgment contain a detailed review of the facts in this case: see R. v. Branco, 2019 ONSC 1026. As a result, in these reasons, only a brief review of the circumstances of Mr. Branco’s offences is necessary.

3In the fall of 2010, the police began investigating an Internet user in Brampton who appeared to be downloading and sharing child pornography using a peer-to-peer file sharing network.

4The investigation led police to obtain a search warrant for a residence in Brampton, where Mr. Branco was living with his elderly parents. During the execution of that warrant, police located and seized a computer belonging to Mr. Branco from his bedroom.

5A forensic analysis of Mr. Branco's computer revealed the presence of child pornography. The collection consisted of both still images and video recordings involving prepubescent and pubescent girls.

6There were a total of 302 unique child pornography images stored on the computer's hard drive. Only 54 of the image files were readily accessible. The remaining files were found in "unallocated" portions of the hard drive, suggesting that they had been deleted but not yet overwritten.

7Most of the still images depict prepubescent girls in various poses meant to portray them in in a sexualized manner, with the predominant focus being on their chests, vaginal or anal regions, or some combination of these. The girls are mostly nude, with any clothing serving as little more than props in their sexualization. There were also a few images of prepubescent girls engaged in explicit sexual activity and some cartoon images that meet the definition of child pornography.

8There were also four separate video files containing child pornography located on the computer's hard drive. The recordings show pubescent girls involved in explicit sexual activity with adult men. One of the video files consists of four separate recordings spliced together. As a result, it shows the sexual abuse of as many as four different children.

Circumstances of the Offender

9Mr. Branco is 53 years old. He immigrated to Canada from Portugal, along with his parents and siblings, when he was just six years old. Despite living in Canada for the past 47 years, Mr. Branco never obtained his citizenship. He remains a permanent resident.

10Mr. Branco has a dated but not entirely unrelated criminal record. In 1999 he was convicted of two counts of assault. According to the information shared by Mr. Branco with the author of the Pre-Sentence Report, these offences involved female co-workers who were just sixteen years of age. Mr. Branco received a suspended sentence, was placed on probation for two years, and subject to a prohibition order under s. 161 of the Criminal Code.

11Mr. Branco comes from a supportive family. He has a close relationship with his parents and three siblings. Since being charged, nine years ago, he has been living with his sister as required by the terms of his bail.

12The author of the Pre-Sentence Report interviewed some of Mr. Branco's siblings; each was at a loss to explain Mr. Branco's offences, which they described as entirely inconsistent with the person they know.

13Mr. Branco is divorced. At the time of these offences his children were just ten and nine years old. Due to the charges and the involvement of the Children’s Aid Society, Mr. Branco’s relationship with his two children was effectively severed for a number of years until just recently when both children reached adulthood.

14Mr. Branco attended high school but did not graduate. Since then, he has been gainfully employed working as a general labourer. He is currently working in that capacity, as he has throughout his adult life.

15Shortly after his arrest, Mr. Branco reportedly fell into a depression and attempted to take his own life. He pursued counselling for nearly eight months and thankfully no longer harbours thoughts of suicide.

16Although Mr. Branco pled not guilty, both when interviewed by police following his arrest and to the author of the Pre-Sentence Report, he admitted responsibility for the child pornography found on his computer.

17The author of the Pre-Sentence Report also advises that when interviewed, Mr. Branco demonstrated considerable insight in terms of victim empathy. He recognized the potentially harmful effects for the children in the child pornography images and recordings that he possessed and viewed.

18Unfortunately, the court does not have the benefit of a risk assessment. Although Mr. Branco took counselling following his suicide attempt, he has not undertaken any counselling or treatment to address the root cause of his apparent interest in child pornography.

19That said, almost nine years have passed since Mr. Branco's arrest. During this period, he has been subject to bail conditions that not only required him to live with his surety but that also mimic the restrictions ordinarily found in a s. 161 prohibition order. Since his arrest, Mr. Branco has not faced any further charges.

The Minimum and Maximum Sentences

20At the time of Mr. Branco's offences, in October 2010, when prosecuted by indictment, possession of child pornography and accessing child pornography each carried a minimum sentence of forty-five days imprisonment and a maximum sentence of five years imprisonment: see Criminal Code, ss. 163.1(4), and (4.1), respectively.

21In 2012 Parliament amended these provisions, increasing both the minimum and maximum sentences for these offences on an indictable election. These amendments increased the minimum to six months imprisonment and the maximum to ten years imprisonment for each of these offences: see Safe Streets and Communities Act, S.C. 2012, c. 1, s. 17(3) and (4).

22The minimum sentence on an indictable election for possession of child pornography (s. 163.1(4)(a)) implemented by the 2012 amendments, was recently declared of no force or effect for being inconsistent with s. 12 of the Charter: see R. v. John, 2018 ONCA 702.

23In 2015, Parliament again legislated further increases to the mandatory minimum sentences for both offences where the Crown proceeds by indictment. These amendments increased the minimum sentences to one-year imprisonment for both possessing and accessing child pornography: see Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, s. 7(2) and (3).

24Due to s. 11(i) of the Charter, despite the increases in the minimum and maximum penalties, Mr. Branco is constitutionally entitled to the benefit of the lesser punishments in effect when he committed his offences in October 2010. At that time, for each of these offences, on an indictable election, the mandatory minimum sentence was forty-five days imprisonment, and the maximum was five-years imprisonment.

25This summary of the relevant legislative history regarding the applicable minimum and maximum sentences is all by way of background, to better understand the positions of the parties, especially what the defence submits is the appropriate sentence in this case.

The Positions of the Parties

26The Crown, Mr. Thomaidis, submits that the appropriate sentence, in all of the circumstances of this case, is imprisonment for a period between 12 and 15 months, followed by two years of probation.

27In terms of ancillary orders, the Crown also seeks a prohibition order under s. 161 for ten years, a DNA order, and an order requiring Mr. Branco to register for life under the Sexual Offender Information Registration Act, S.C. 2004, c. 10.

28Mr. Thomaidis makes several submissions in support of the Crown's position that a sentence in the range of 12 to 15 months of imprisonment is appropriate. First, the Crown emphasizes the profound harm caused to victims of child pornography.

29Second, given that harm, the Crown notes that the case law identifies denunciation and deterrence as the preeminent sentencing objectives for such offences. It follows, says the Crown, that a custodial sentence is necessary.

30Third, although conceding an absence of aggravating factors in this case, the Crown submits that there are no mitigating factors either. The Crown notes that Mr. Branco did not plead guilty. It contends that he has limited insight, has made no real expression of remorse, and that his potential risk of reoffending is entirely unknown.

31Fourth, the Crown submits that the applicable range for offences of this nature is between one year and four years imprisonment. Given all of the circumstances of this case, Mr. Thomiadas argues that a custodial sentence of between 12 and 15 months is appropriate.

32Finally, although the Crown acknowledges that the potential immigration consequences for Mr. Branco are a relevant consideration, he argues that these cannot be controlling. In the end, he contends that imposing a sentence below six months imprisonment would be manifestly unfit in all the circumstances of this case.

33In contrast, defence counsel, Mr. Brown, urges the court to impose a 90-day intermittent sentence. Mr. Brown makes several submissions in support of this position.

34First, he begins with the objectives of sentencing. Mr. Brown acknowledges that both denunciation and deterrence are the primary sentencing objectives for these offences. Nevertheless, he submits that rehabilitation also remains an important objective. In that regard, Mr. Brown argues that there is clear evidence before the court of Mr. Branco's rehabilitation. Specifically, that over the last nine years, Mr. Branco has not reoffended.

35Second, Mr. Brown argues that the court should approach the sentencing decisions handed down for these offences in recent years with caution. He argues that there has been an upward trajectory in the sentencing case law since Mr. Branco committed his crimes. It would be in keeping with s. 11(i) of the Charter, he contends, for Mr. Branco to receive a sentence like that which he would have received at the time these offences were committed.

36Third, Mr. Brown emphasizes the potential immigration consequences. Because Mr. Branco never obtained his Canadian citizenship, as a permanent resident, despite living in Canada for the past 47 years, if sentenced to more than six months imprisonment he faces deportation without the benefit of an appeal to the Immigration Appeal Division.

37Finally, Mr. Brown also argues that the court should consider how long the criminal process has remained outstanding in Mr. Branco's case. Although he acknowledges that Mr. Branco bears some of the responsibility for the long delay, he notes that the prolonged nature of the process has exacted a form of punishment that is deserving of some consideration in fashioning the appropriate sentence.

38Emphasizing all of these factors, combined with the potential for Mr. Branco to maintain his current employment should he receive an intermittent sentence, Mr. Brown argues that Mr. Branco should receive a sentence of ninety-days imprisonment to be served intermittently, followed by a period of probation. Mr. Brown takes no issue with the ancillary orders sought by the Crown.

The Governing Legal Principles

• The purpose and objectives of sentencing (generally)

39The Criminal Code provides that the "fundamental purpose of sentencing is to protect society" and to contribute "to respect for the law and the maintenance of a just, peaceful and safe society": Criminal Code, s. 718.

40These purposes are to be accomplished through the imposition of "just sanctions", that reflect one or more of the traditional sentencing objectives: denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation to victims, and promoting a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community: see Criminal Code, ss. 718(a) through (f).

• Sentencing in child pornography cases

41In cases involving the abuse of a child, s. 718.01 of the Criminal Code gives more specific direction. It provides that:

When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

42Parliament added this provision to the Criminal Code in 2005, long before Mr. Branco committed his offences: see An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, S.C. 2005, c. 32, s. 24.

43The Court of Appeal has repeatedly recognized that the objectives of denunciation and deterrence are of paramount importance when sentencing offenders for child pornography offences. It has done so both before and after the enactment of s. 718.01 of the Criminal Code: see John, at para. 41; R. v. Inksetter, 2018 ONCA 474, at para. 16; R. v. Nisbit, 2011 ONCA 26, at para. 1; R. v. O.(E.), (2003), 2003 CanLII 2017 (ON CA), 169 O.A.C. 110, at para. 7.

44It follows that a court sentencing an offender for a child pornography offence has few options other than imprisonment: see Inksetter, at para. 17, citing R. v. Lacasse, 2005 SCC 64, [2015] S.C.R. 1089, at para. 6.

45In Inksetter, the Court of Appeal made some important observations that are relevant whenever sentencing an offender for a child pornography offence, including that:

• Child pornography represents a pervasive social problem: Inksetter, at para. 22;

• Possession of such material harms children and represents a form of child sexual abuse: Inksetter, at para. 22;

• The children depicted in child pornography are re-victimized with every viewing of this material: Inksetter, at para. 22;

• The legislative changes introduced by Parliament over the last decade, irrespective of whether they ultimately survive constitutional scrutiny, demonstrate rising concern amongst Canadians about the increasing incidence of child pornography: Inksetter, at paras. 23-24.

46The Court of Appeal has also acknowledged that courts have been on a learning curve over the years to understand how pervasive child pornography has become in the era of the Internet and to fully appreciate the pernicious effect it has on its victims: R. v. D.G.F., 2010 ONCA 27, at para. 21; Inksetter, at para. 25.

47Given this, the Court of Appeal has cautioned that early sentencing decisions for child pornography offences "must be viewed with some caution." Inksetter, at para. 24.

• Proportionality – the fundamental principle of sentencing

48While remembering all of this, as with every offence and every offender, the court can never lose sight of the fundamental principle of sentencing; that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender: see Criminal Code, s. 718.1.

49Proportionality requires that the sentence imposed fit both the seriousness of the crime and the offender's level of moral blameworthiness in its commission: see R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 36-39.

50Proportionality is determined both on an individual basis, that is, by consideration of the circumstances of the offender and the circumstances of his offence, and also by comparison to sentences imposed for similar offences committed in similar circumstances. As the Supreme Court of Canada observed, “[i]ndividualization and parity of sentences must be reconciled for a sentence to be proportionate”: Lacasse, at para. 53.

• Aggravating and mitigating factors:

51In determining the appropriate sentence, a sentencing judge must consider any relevant aggravating or mitigating circumstances relating to the offence or the offender: Criminal Code, s 718.2(a).

52Taking a proper inventory of the aggravating and mitigating factors is essential to evaluating the gravity of the offence and the degree of responsibility of the offender in its commission. By doing so, a sentencing judge ensures that the sentence imposed is proportionate: see R. v. Priest (1996), 1996 CanLII 1381 (ON CA), 110 C.C.C. (3d) 289 at 297-298 (Ont.C.A.).

53The parties agree that the decision in R. v. Kwok, 2007 CanLII 2942 (ON SC), [2007] O.J. No. 457, at para. 7 (S.C.) provides an authoritative catalogue of the potential aggravating and mitigating factors in child pornography cases. With the benefit of the guidance offered by Molloy J. in Kwok, these reasons now turn to identify the aggravating and mitigating factors in this case. In my view, there are three aggravating factors present in this case.

54First, there is the fact that Mr. Branco has a criminal record consisting of two entries for assault that are not entirely unrelated (remembering that the victims were teenage girls and that a s. 161 prohibition order issued). That said, the record is now very, very dated. So dated that during submissions, the Crown suggested that it would be appropriate to treat Mr. Branco as a first offender. Although I am disinclined to go that far, I agree that the criminal record is deserving of minimal weight given the passage of time.

55Second, there is the size of the collection. The larger the collection, the greater the number of children victimized. As well, the size of the collection also evidences the offender's level of commitment to the insidious enterprise of collecting such materials and is reflective of their level of moral blameworthiness.

56In this case, the size of Mr. Branco's collection of child pornography is an aggravating factor. He did not possess a few images or a single video, but over three hundred pictures and four separate video recordings. In short, this is far from a small collection of child pornography. That said, relative to the circumstances involved in many of the reported cases, which I will review shortly, Mr. Branco's collection is (sadly) not unusually large.

57Finally, the nature of the material in Mr. Branco's collection qualifies as an aggravating factor, at least to a degree. To be sure, all child pornography is evil, relying, as it does, on the sexual abuse of children, the most innocent and vulnerable members of our society. However, the case law also makes clear that the level of depravity involved can vary considerably.

58In this case, the child pornography involves prepubescent and pubescent girls; there are no toddlers and infants. The still images predominately consist of children posing in the nude in a manner that is deliberately sexualized. Only a few of the still images include explicit sexual activity. However, all of the video recordings involve pubescent girls engaging in sexual activity (intercourse and oral sex) with adult men.

59The presence of explicit sexual activity is an aggravating factor. That said, there are none of the especially vile characteristics that are sometimes present with such materials. For example, there is no gratuitous violence, bestiality, or sadomasochism.

60In this case, there are also a few mitigating factors that are deserving of some consideration.

61First, I am satisfied that Mr. Branco has demonstrated a degree of insight and remorse for his actions. In the statement that he gave police immediately following his arrest, Mr. Branco ultimately admitted his crime. He also acknowledged viewing child pornography in the comments he made to the author of the Pre-Sentence Report.

62To be sure, Mr. Branco did not plead guilty to these offences, which would evidence his remorse. It is worth noting that he proceeded to trial on three charges, including one count of making child pornography available, something he denied (knowingly) doing in his police statement and of which he was found not guilty. It also deserves mention that by the end of the trial, he conceded his guilt concerning the two charges for which he is being sentenced.

63Mr. Branco's admissions, as well as his comments to the author of the Pre-Sentence Report, in which he recognized the harm caused by child pornography, convince me that he has insight into the wrongfulness of his actions and, despite the absence of a guilty plea, that he is genuinely remorseful.

64Second, there is the fact that Mr. Branco has enjoyed gainful employment throughout his adult life and that he also has the love and support of his extended family. These considerations support his potential for rehabilitation, as does the fact that he has not faced any further charges over the past nine years.

65Finally, I am also satisfied that Mr. Branco has suffered a fair amount by having these charges outstanding for the past nine years. I recognize that Mr. Branco has played a major role in prolonging this process. Nevertheless, the impact on Mr. Branco has been significant.

66Beyond being subject to bail conditions for nine years that required him to reside with his surety, and that also mirror a s. 161 prohibition order, there have also been other effects. These include Mr. Branco suffering from depression, attempting suicide, and a prolonged severance of his relationship with his two children. In short, Mr. Branco has already suffered a fair amount because of his crimes, which is a mitigating factor on sentencing.

67With the general sentencing principles set out and the aggravating and mitigating factors identified, I turn to determine the appropriate sentence for Mr. Branco in all of the circumstances of this case.

• The range of sentences for possession of child pornography

68Section 718.2(b) of the Criminal Code instructs that: "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances." This codifies the long-established sentencing principle of parity. As the Supreme Court of Canada has observed, for a sentence to be proportionate, the circumstances of the offence and the offender must be reconciled with the principle of parity: see Lacasse, at para. 57.

69Not surprisingly, a review of the case law involving offenders sentenced for possessing or accessing child pornography demonstrates that the sentencing range for these offences varies widely as a function of the aggravating and mitigating factors present in any particular case.

70Given the Court of Appeal's cautionary comments regarding some of the earlier case law in this area, I have deliberately chosen to focus on more recent sentencing decisions. The cases reviewed span the period from 2010 (when Mr. Branco committed his offences) to the present.

71Ultimately, it is unnecessary to answer the legal question raised by the defence concerning the scope of s. 11(i) of the Charter. Specifically, where there has been a shift in the range of sentences since an offence was committed, whether s. 11(i) entitles an offender to the benefit of the lesser range.

72As the review of the sentencing case law that follows demonstrates, the range of sentences imposed from 2010 until today has remained relatively consistent. This is not surprising.

73By 2010, five years had passed from when Parliament added s. 718.01 to the Criminal Code. If earlier sentencing decisions had failed to recognize the full gravity of the problem posed by child pornography, it is apparent that by 2010, judges imposing sentences in these cases had come to appreciate the nature and extent of the problem. The case law over the last nine years reflects this.

74As an aside, however, I must confess to finding Mr. Brown's argument less than convincing. Section 11(i) of the Charter requires that if any aspect of the "punishment" has changed between the commission of the offence and sentencing, the offender is entitled to the benefit of the lesser punishment: see generally R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906. It requires no more than that.

75I am unaware of any precedent holding that an offender is entitled to be treated in every way as he would have been had he been sentenced at the time that he committed his offence.

76Societal attitudes towards certain crimes change over time. Crimes of sexual violence provide a prime example. An offender convicted of a historic crime of sexual abuse dating back several decades is constitutionally entitled to the benefit of any lesser punishment. The term “punishment” in s. 11(i) is restricted to the “arsenal of sanctions to which an accused may be liable in respect of a particular offence”: K.R.J., at para. 41.

77Such an offender cannot possibly expect that long outdated myths and stereotypes about sexual violence, which might have influenced the range of sentences at one time, will be given credit that subsequent experience and learning have since revealed they no longer deserve. Section 11(i) of the Charter is not a time machine.

78I turn then to review the sentencing authorities for possession of child pornography from the past nine years.

79In R. v. Woolf, 2019 ONCJ 376, the offender pled guilty to possessing child pornography. The material consisted of 65 images. Most of the images were of partially undressed or completely naked girls. One of the images was of a prepubescent girl engaged in a sexual act with an adult man. The offender was 66 years of age, had no prior criminal record, and was previously of good character. He was a college instructor at the time of his arrest, but after being charged, he was suspended from work and took early retirement. The charge led to the end of his marriage. The offender was assessed as a low-risk to reoffend and had undergone treatment. The offender was genuinely remorseful. The court sentenced the offender to 90 days imprisonment, followed by probation.

80In R. v. Scattolin, 2019 ONCJ 357, the offender pled guilty to one count of possession of child pornography. The materials consisted of nearly 8000 images and 64 videos. The vast majority of the photos were of unclothed girls, aged seven to eight, exposing their genitals to the camera. The videos showed adult males having intercourse with young girls. The offender was 50 years of age, had no prior criminal record, was married, and gainfully employed. Before sentencing, the offender had attended four counselling sessions and was remorseful. The court imposed a sentence of seven months imprisonment, followed by three years of probation.

81In R. v. Morrison, 2019 ONCJ 262, the offender pled guilty to possessing 11 images of prepubescent boys that met the definition of child pornography. On three separate occasions, the offender shared one of these images on Facebook, which led to his arrest. The offender was 58 years old and had no prior criminal record. He was an alcoholic who sought treatment after his arrest. The court imposed a sentence of 100 days imprisonment, followed by three years of probation.

82In R. v. Schacter, 2019 ONCJ 154, the offender was found guilty of possessing child pornography after a trial. The material consisted of 148 photos of boys between the ages of eight and 12, in various stages of undress, that were found to meet the definition of child pornography. The offender was 58 years old, had no prior criminal record, and was of previous good character. He had health issues that would make his time in custody difficult. The offender expressed no remorse nor insight. The court imposed a sentence of six months imprisonment, followed by three years of probation.

83In Inksetter, the offender amassed one of the "largest and worst" collections of child pornography that the Ottawa Police Service had ever uncovered. It included over 28,052 images and 1,144 videos. The collection likely included even more, but there was so much material that the police stopped cataloguing it with more than 1.2 million images, and 40,000 videos still outstanding for review. Nearly ninety-five percent of the material depicted actual penetration and other explicit sexual activity. Some of the images included children as young as one year of age, as well as acts of bondage and bestiality. The offender pled guilty, was employed, and posed a low-risk to reoffend. He also demonstrated insight and remorse. The Court of Appeal allowed the Crown's appeal against a sentence of two years less a day imprisonment, concurrent on one count of possessing child pornography and one count of making child pornography available, followed by three years of probation. It substituted sentences of three and one-half-years imprisonment concurrent on both counts.

84In John, the Court of Appeal, after declaring unconstitutional the minimum sentence of six months imprisonment on an indictable election, introduced as part of the 2012 amendments, affirmed a sentence of imprisonment for 10 months imposed on an offender convicted after a trial of possessing child pornography. The collection consisted of 50 images and 89 videos of child pornography. It involved children as young as two to four years of age, subject to anal and vaginal penetration with sex toys and adult penises. The offender was 31 years old at the time of sentencing. He had mental health problems and had been suicidal in the past but was pursuing psychotherapy to address his mental health issues. The offender was employed. He was also remorseful. The horrendous abuse documented weighed heavily in the court's reasoning, as did the extensive efforts of the offender towards his rehabilitation.

85In R. v. Schulz, 2018 ONCA 598, the offender was sentenced after trial for possessing 45 images and 111 videos of child pornography (the decision does not detail the nature of these materials). He received a sentence of 45 days imprisonment, to be served intermittently, followed by three years of probation. The Court of Appeal dismissed the offender's conviction appeal, as well as his appeal against sentence in which he challenged some of the terms included in the probation order and the s. 161 prohibition order.

86In R. v. Zhang, 2018 ONCJ 646, the offender pled guilty to possessing seven images and one video that constituted child pornography. The video showed the penetration of a seven to nine-year-old girl, with an object and then a penis. The offender was a 19-year-old first offender who was in Canada attending university and risked deportation. He encountered the material while searching the Internet and decided to download it. The offender was remorseful. The court imposed a sentence of four months imprisonment, followed by probation for 18 months.

87In R. v. Speers, 2017 ONCJ 922, the offender pled guilty to possessing child pornography. His collection consisted of 71 images and four videos, characterized as falling within category four of the scale developed in R. v. Oliver [2002] EWCA Crim 2766. This category involves penetrative sexual activity. The sentencing judge acceded to a joint submission for six months imprisonment and one year of probation.

88In R. v. Lysenchuk, 2016 ONSC 1009, the offender was found guilty of possessing child pornography following a trial. He possessed 5920 images and 588 videos. The offender was 65 years of age and retired. Before his retirement, he had a positive work history. The offender was a person of previously good character, including an exemplary parent. He posed a low risk to reoffend, was remorseful and open to seeking treatment. The court imposed a sentence of imprisonment for nine months, followed by three years of probation.

89In R. v. Wang, 2016 ONSC 5610, the offender was convicted of possession of child pornography following a trial. The collection consisted of 38 images and 5 videos that depicted graphic sex between children and adults. One of the video recordings included simulated rape and bondage. The offender was 26-years at the time of sentencing, but only 20-years old at the time of the offence. He had no prior criminal record, was employed, and was of previous good character. The offender had good rehabilitative prospects and was willing to take treatment. Six years had passed since the commission of the offences, and the offender had matured in the interim. The court imposed a sentence of imprisonment for nine months, followed by three years of probation.

90In R. v. Garcia, 2016 ONCJ 550, the offender pled guilty to possessing 41,888 images and 630 videos of child pornography. The collection mainly consisted of pubescent children or children in early adolescence posing naked or partially clothed in a sexually provocative manner. Many of the images and video recordings featured the same children, with multiple images and videos of the same child spliced from a single recording. As a result, the number of files was not reflective of the actual number of children victimized. There were a few depictions of explicit sexual activity. The offender was 29 years old, had no criminal record, a positive work history, and was assessed as a low-risk to reoffend. The offender was sentenced to eight months imprisonment, followed by two years of probation.

91In R. v. Covert, [2015] O.J. No 3488 (O.C.J.), the offender pled guilty to possessing 27 still images and 256 videos of child pornography. Thirty percent of this collection consisted of prepubescent children, including some children as young as five or six years old. Almost half of the material consisted of explicit sexual activity, including vaginal and anal sex, oral sex, and masturbation. The offender was 58 years of age, had a prior unrelated criminal record, had undergone treatment, and posed a low risk to reoffend. The court sentenced the offender to six months imprisonment, followed by 12 months of probation.

92In R. v. Butters, 2014 ONCJ 641, aff'd on other grounds 2015 ONCA 783, the offender was found guilty of two counts of possessing child pornography following a trial. The collection consisted of 49 still images. It mainly involved prepubescent children, and some of the images were sexually explicit. The offender was 56 years of age and had no prior criminal record. He was a photographer and had personally taken some of the photographs, a seriously aggravating factor. He was assessed as a low risk to reoffend. Although the offender was taking treatment by the time of sentencing, he was reportedly not initially receptive to the idea. The court imposed a sentence of eight months of imprisonment, followed by two years of probation.

93In R. v. Stoddart [2014] O.J. No. 2674 (O.C.J.), the offender pled guilty to possessing child pornography that consisted of 1,320 images and 66 videos. The videos depicted children involved in sexual activity with other children and adults. The offender was previously of good character, had a loving and supportive family and was gainfully employed. He had also been taking counseling to address his deviant sexual interests. The offender was subject to bail conditions that mirrored a s. 161 prohibition order. The court imposed a sentence of six imprisonment and 12 months of probation.

94In R. v. T.K., [2014] O.J. No. 4155 (O.C.J.), the offender pled guilty to possession of child pornography. The collection consisted of 600 images and over 700 videos, featuring boys between the ages of six and 12 involved in various sexual acts. The offender was assessed as a low risk to reoffend. He was actively engaged in treatment. The offender received a 90-day sentence of imprisonment, to be served on an intermittent basis, and two years of probation.

95In R. v. Ward, 2012 ONCA 660, the judgment of the Court of Appeal dealt with the constitutionality of accessing subscriber information without a warrant. However, there is some description of the circumstances and the sentence. The offender was found guilty of accessing and possessing child pornography, consisting of 30,000 images and about 373 videos. He was sentenced to 11 months of imprisonment and two years of probation. Although he initially appealed his sentence, he abandoned that appeal. The Court of Appeal's decision does not include a description of the nature of the materials in the offender's very large collection; nor is the original sentencing decision available through any electronic databases.

96In R. v. Burke, 2012 ONSC 6997, aff'd on other grounds 2013 ONCA 424, the offender was found guilty of possession of child pornography. Following an unsuccessful Charter application, he invited a finding of guilt. There were 17 photos and 24 videos. The child pornography involved young girls engaged in explicit sexual acts with adult males. The offender had no prior criminal record and a positive work history. He had also been assessed as posing a low risk to reoffend and was receiving treatment. The court imposed a sentence of six months imprisonment and 18 months of probation.

97In R. v. Yau, 2011 ONSC 1009, the offender was found guilty of possession of child pornography following a trial by jury. He possessed approximately 479 images, 11 Anime drawings, and four videos. Although some of the materials depicted young girls involved in explicit sexual activity, most of the materials consisted of naked prepubescent girls not engaged in sexual activity. The offender, who was 57 years old, had no prior criminal record. He was married and had three adult children. The sentencing judge concluded that absent credit for time spent in pre-trial detention, the appropriate range of sentence would have been ten months incarceration.

98In R. v. Dumais, 2011 ONSC 276, the offender pled guilty to possession of child pornography. The collection consisted of 170 images and 44 videos depicting young females involved in explicit sexual acts. The offender had no prior criminal record and a positive work history as a school teacher, a position he lost as a result of being charged. He was assessed as a low risk to reoffend and was taking treatment. The court imposed a sentence of imprisonment for nine months followed by one year of probation.

99In R. v. Nisbet, [2010] O.J. No. 6258 (S.C.), aff'd 2011 ONCA 26, the offender pled guilty to possessing child pornography. There were 28 images and 43 videos. The materials involved children between the ages of four and 14 engaged in various sex acts with other children and adults. The court imposed a sentence of six months imprisonment, followed by 18 months of probation.

100In R. v. Hutchings, 2010 ONCJ 214, the offender pled guilty to possessing 62 images of child pornography involving children ranging in ages from toddlers to teens. Many of the photos depicted children engaged in explicit sexual activity. The offender was 41 years old and had no prior criminal record. He came from a loving and supportive family. The offender lost his job because of his arrest. The offender had begun treatment. The court imposed a sentence of 4½ months imprisonment, followed by three years of probation.

101This review of the case law demonstrates that the range of sentences varies widely, from intermittent sentences at the low end, to penitentiary sentences as long as 3½ years at the upper end. Ultimately, with the exception of some outliers, where a particular case falls within the overall range of sentences is a function of its specific aggravating and mitigating factors.

102With the benefit of a careful review of the sentencing precedents, I have concluded that the appropriate sentence, in this case, is in the range of six to eight months imprisonment, followed by a period of probation.

103In so concluding, I note that there are some strong parallels between this case and Speers, Covert, Butters, Burke and Nisbet. In each of those cases, the offenders received sentences between six months and eight months of imprisonment.

104The most significant similarity to Mr. Branco's case is that the child pornography possessed by the offenders in those cases was generally comparable both in terms of its quantity and nature. That said, there were some aggravating and mitigating factors present in each of those cases that are not present in this case.

105The offenders in three of these cases pled guilty, evidencing their remorse. Although Mr. Branco pled not guilty, for reasons already explained, despite proceeding to trial, I am also satisfied that he too is genuinely remorseful.

106Importantly, in three of these cases, the offenders had been assessed as posing a low-risk to re-offend and were taking counselling. Such assessments, along with upfront counselling, are significant mitigating factors not present in this case.

107At the same time, the Pre-Sentence Report evidences that Mr. Branco has insight into the harm caused by child pornography and genuine empathy for its victims. This mindset suggests he will be receptive to counselling, as part of a probation order, to address the root causes of his interest in such materials. The fact that he has not reoffended over the past nine years also bodes well for his rehabilitation.

108There are other mitigating factors in Mr. Branco's case that were not present in Speers, Covert, Butters, Burke and Nisbet. Specifically, the considerable impact on Mr. Branco of having these charges outstanding for nine years.

109Taking into account the aggravating and mitigating factors in this case, as compared to the most analogous sentencing precedents, in the ordinary course, I would have sentenced Mr. Branco to seven months imprisonment followed by two years of probation.

• Potential immigration consequences

110A sentence of more than six-months imprisonment might occasion significant adverse immigration consequences for Mr. Branco. It could lead to his deportation from Canada, a country that has been his home since the age of six and where he has spent virtually his entire life, without the benefit of any right of appeal to the Immigration Appeal Division. See Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 36(1)(a), 64.

111A sentencing judge may exercise his or her discretion to take collateral immigration consequences into account in deciding on the appropriate sentence, provided the sentence ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender: see R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739.

112I am therefore exercising my discretion to impose a custodial sentence just slightly below what would have otherwise been imposed but for the potential immigration consequences. Accordingly, Mr. Branco will be sentenced to 179 days custody, effectively six-months less one-day imprisonment, to leave open the possibility for him to remain in Canada.

113A sentence of just slightly less than six months imprisonment, in my view, adequately addresses the objectives of denunciation and deterrence. It takes into account the circumstances of these offences and this offender assessed in light of the specific aggravating and mitigating factors in this case.

114Finally, it is only just slightly below the range of sentences imposed on similar offenders in similar circumstances. In that regard, it must be remembered that sentencing ranges are only meant to guide the exercise of judicial discretion in applying the relevant principles and objectives of sentencing. Sentencing ranges are “historical portraits for the use of sentencing judges” and not meant to serve as “straitjackets”: Lacasse, at para. 57.

115I am satisfied that a slight downward adjustment in the sentence, to take into account the collateral immigration consequences for Mr. Branco, still results in a sentence that is proportionate to the gravity of these offences and Mr. Branco's degree of responsibility in their commission.

• Kienapple Issue (and the SOIRA implications)

116The parties differ on whether or not R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729 requires that one of two offences for which Mr. Branco was found guilty (accessing and possessing child pornography) should be subject to a conditional stay.

117The Crown submits that the resolution of this question has practical implications in this case. A single conviction will mean that Mr. Branco is only required to comply with the Sex Offender Information Registration Act for 10 years: see Criminal Code, s. 490.013(2)(a). In contrast, if "convicted" of more than one designated offence, the Crown argues that Mr. Branco would be subject to such an order for life: see Criminal Code, s. 490.013(2.1).

118During the sentencing hearing, the parties assumed that the Kienapple question had practical significance. Neither side addressed the fact that s. 490.013(2.1) only became effective on December 15, 2010, after Mr. Branco committed his offences: see Protecting Victims From Sex Offenders Act, S.C. 2010, c. 17, s. 6.

119The original iteration of s. 490.013, in effect in the fall of 2010, did not contain a comparable provision: see An Act respecting the registration of information relating to sex offenders, to amend the Criminal Code and to make consequential amendments to other Acts, S.C. 2004, c. 10, s. 20.

120As a result, the parties did not address whether s. 490.013(2.1) applies retrospectively. Further, assuming that it does, whether it is inconsistent with s. 11(i) of the Charter. Finally, if it is, whether it represents a reasonable limit on that right under s. 1 of the Charter.

121These potential constitutional questions only arise if the Kienapple principle does not preclude convictions for both offences that Mr. Branco committed. As a result, these reasons will turn next to addressing that question.

122The Crown argues that the Kienapple principle does not apply because the offences of possessing and accessing child pornography are distinct. A person can possess child pornography without accessing it, and access child pornography without possessing it: see R. v. M.N., 2017 ONCA 434, at paras. 36-39; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 27. It follows, says the Crown, that the Kienapple principle does not require staying one of the two charges to avoid multiple convictions for the same conduct.

123The defence argues that in the circumstances of this case, the offences of accessing and possessing child pornography are closely interwoven and address the very same delict. After he downloaded the child pornography, Mr. Branco "accessed" it every time he opened and viewed a file (s. 163.1(4.2)), and also "possessed" these same files by knowingly keeping them on his hard drive (s. 163.1(4)): see Morelli, at paras. 15-30. In these circumstances, argues the defence, the Kienapple principle requires that one of the charges be stayed to avoid multiple convictions for what is essentially the same wrongful conduct.

124The Kienapple principle is a manifestation of the res judicata doctrine. It operates to preclude multiple convictions where "the same cause or matter (rather than the same offence) is comprehended by two or more offences.": Kienapple, at p. 750. Its rationale is to avoid the unfairness of heaping multiple convictions on an accused, in respect of the same criminal delict: R. v. Prince, 1986 CanLII 40 (SCC), [1986] 2 S.C.R. 480, at pp. 489-490. In deciding whether or not the rule applies, the court must have regard to two key questions.

125First, there must be a sufficient factual nexus between the two offences. The question is whether the same act of the accused grounds each of the charges: Prince, at p. 492. Unfortunately, it is not always easy to define when one act ends and another begins, especially when continuing offences are involved: Prince, at p. 492. The law requires a case by case approach, with attention paid to factors such as the remoteness or proximity of the events in time and place, the presence or absence of relevant intervening events, and whether the actions of the accused were related to each other by a common objective: Prince, at p. 492.

126Second, there must be a sufficient legal nexus between the two offences: Prince, at pp. 493-494. The question is whether or not the two offences involve the same delict (wrongful conduct) or are concerned with different matters that bear little or no connection to each other: see Prince, at p. 494.

127In deciding whether a sufficient legal nexus exists between two offences, the existence of the same or substantially the same elements between offences is a relevant but not decisive consideration: see Kienapple, at p. 751. Sufficient proximity between offences will exist if there is no additional and distinguishing element that goes to guilt contained in the offence for which a conviction is sought to be precluded by the Kienapple principle: Prince, at pp. 498-499. The Kienapple principle may also bar a conviction for a lesser offence, notwithstanding that there are additional elements in the greater offence, provided that there are no distinct additional elements in the lesser offence: Prince, at p. 499.

128Finally, even if two offences have different elements, there may be sufficient correspondence between them that they are not addressing distinctive wrongs but are substantially the same or alternatives for each other: Prince, at p. 499. The Supreme Court of Canada identified three circumstances in which offences may have different elements but remain indistinct: see Prince, at pp. 500-502. These include where: 1) an element in one offence is a particularization of an element in another offence; 2) there is more than one method, embodied in more than one offence, to prove a single delict; or 3) when Parliament in effect deems a particular element to be satisfied by proof of a different nature because of social policy or inherent difficulties of proof.

129In applying these criteria, the Supreme Court has cautioned that it is important not to carry logic so far as to frustrate Parliament's intent or as to lose sight of the overarching question whether the same cause, matter or delict underlies both charges: Prince, at p. 502.

130With the governing principles outlined, the question to be addressed is whether, in the circumstances of this case, the Kienapple principle requires the staying of one of the two offences for which Mr. Branco was found guilty. In my view, it does. Although possessing child pornography (s. 161.3(4)) and accessing child pornography (s. 163.3(4.1)) are separate offences with distinct elements there is a close factual and legal nexus between them.

131From a factual standpoint, the basis for Mr. Branco's liability for accessing child pornography was that each time he opened and viewed a child pornography file that he possessed (s. 161.3(4)) on his computer’s hard drive, he also accessed it by knowingly causing child pornography to be viewed by him: see Criminal Code, s. 163.1(4). As a result, the factual nexus between the two offences is strong, with both offences sharing a close temporal and contextual connection. Mr. Branco’s objective in committing both offences was exactly the same; to view child pornography.

132In terms of the required legal nexus, the two offences share a key element, “child pornography”. To be sure, the two offences also include differing elements. The offence of “possession” requires proof of both knowledge and control: see Morelli, at para. 15. The offence of “accessing” does not require proof of control, rather it simply requires that a person knowingly causes child pornography “to be viewed by, or transmitted to, himself or herself”: see Morelli, at para. 25.

133Parliament’s purpose in enacting the accessing offence was not to target some distinct delict. Rather, it was a direct response to the challenges of applying established legal notions concerning possession to online materials. As the Supreme Court of Canada recognized in Morelli, at para. 18:

Unlike traditional photographs, the digital information encoding the image — the image file — can be possessed even if no representation of the image is visible. Likewise, even if displayed on a person’s computer monitor, the underlying information might remain firmly outside that person’s possession, located on a server thousands of kilometres away, over which that person has no control.

It was this reality that led Parliament to enact the accessing offence. Its object is to: “capture those who intentionally view child pornography on the [Inter]net but where the legal notion of possession may be problematic” (Hon. Anne McLellan, House of Commons Debates, vol. 137, 1st Sess., 37th Parl., May 3, 2001, at p. 3581), quoted in Morelli, at para. 26.

134The offence of accessing child pornography is a paradigmatic example of Parliament deeming a particular element to be satisfied by proof of a different nature because of the inherent difficulties of proving a particular element: Prince, at pp. 501-502. It is analogous to the approach Parliament has taken towards the problem of impaired driving, enacting both an offence of impaired driving and “over 80”. Given the inherent difficulties in proving alcohol impairment, Parliament has deemed a certain proportion of alcohol in one’s blood to constitute impairment of driving ability: Prince, at p. 502. Although these are distinct offences with different elements, they both target the same wrongful conduct; impaired driving. The offences of possessing and accessing child pornography are of a similar nature. They focus on the very same wrongful conduct. They share a single target: consumers of child pornography.

135For all of these reasons, I am satisfied that the Kienapple principle requires that the charge of accessing child pornography (count 3) be conditionally stayed. It is noteworthy that other courts have come to the same conclusion, albeit in circumstances where the issue was not disputed by the parties: see R. v. Somogyi, 2011 ONSC 483, at para. 2; R. v. Leask, 2012 BCSC 186, at para. 52.

Conclusion

136Mr. Branco is sentenced to 179 days of imprisonment, followed by two years of probation. The conditions of probation are as follows:

1. That you keep the peace and be of good behavior;

2. That you attend court, if and when directed to do so;

3. That you advise the court or your probation officer, in advance, of any change of name, address or occupation;

4. That you report to probation services within 2 working days of your release from custody, and thereafter if and when directed to do so by your probation officer;

5. That you undergo a sex offender risk assessment and take any counseling as recommended through that process or as directed by your probation officer;

6. That you cooperate with your probation officer, and sign any necessary releases to allow your probation officer to monitor your compliance with any of the terms of this order; and

7. That you not be in the presence of any person under 18 years of age unless you are in the immediate and continuous presence of another person over 18 years of age.

137Based on the nature of Mr. Branco’s offence, I am satisfied that he poses a potential risk to children and that an order pursuant to s. 161 is necessary to minimize that risk. However, given that Mr. Branco’s offence predates the 2012 amendments that added ss. 161(1)(c) and 161(1)(d) to the Criminal Code, and given the Supreme Court of Canada’s decision in K.R.J., the court is precluded by s. 11(i) of the Charter from imposing a prohibition of the kind contemplated by s. 161(1)(c). Accordingly, the following order shall also issue, commencing upon Mr. Branco’s release from custody, for a period of ten years:

1. Pursuant to section 161(1)(a) of the Criminal Code, you shall not attend 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, unless you are in the immediate and continuous presence of another person over 18 years of age;

2. Pursuant to s. 161(1)(b) of the Criminal Code, you shall not seek, obtain or continue any employment, whether or not the employment is remunerated, or become or be a volunteer in any capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;

3. Pursuant to section 161(1)(d) of the Criminal Code, you shall not use the Internet or any similar communication service to:

a) access any content that violates the law;

b) directly or indirectly communicate with any person under 18 years of age, except for immediate family members;

c) directly or indirectly access any social media sites, social network, Internet discussion forum or chat room, or maintain a personal profile on any such service (e.g. Facebook, Twitter, Tinder, Instagram or any equivalent or similar service), but not including any Internet based dating service that has a recommended age for users of fifty-years of age or older.

138The terms of the section 161 order deliberately track the wording used by the Court of Appeal in R. v. Brar, 2016 ONCA 724, at para 29. The only variation serves to carve out an exception to permit Mr. Branco to use Internet based dating sites that cater to persons over fifty-years of age. The inclusion of such an exception is informed by the reality that in this day and age a great many relationships begin online. At the same time, I am of the view that it is rather improbable that minors are using services that are aimed exclusively at more mature users. As a result, I have tailored the condition to strike a balance between protecting children and permitting Mr. Branco a meaningful social life, which I think is essential to his rehabilitation in the long term.

139In addition, an order will issue that Mr. Branco comply with the Sex Offender Information Registration Act for a period ten-years. Further, an order will also issue directing the taking of a sample of Mr. Branco’s blood for inclusion of his DNA profile in the National DNA Databank.