Court File and Parties

COURT FILE NO.: CR-21-867-00 DATE: 2023 05 19 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING -and- DAVID SCOTT

COUNSEL: Maria Stevens, for the Crown Naomi Lutes, for David Scott

HEARD: January 11, February 15, 2023

Reasons for Sentence

D.E HARRIS J.

[1] These are sentencing reasons for David Scott on findings of guilt for possession and importation of child pornography. The Crown asks for a sentence of three years in the penitentiary and the defence requests a conditional sentence. These reasons should be read in conjunction with the reasons for the findings of guilt: R. v. Scott 2022 ONSC 5823.

[2] Four topics will be covered: 1. Should the possession count be conditionally stayed based on the Kienapple principle; 2. Is a sentence of two years less a day fit and appropriate?; 3. If so, is a conditional sentence available? The one-year mandatory minimum in section 163.1(3) of the Criminal Code for importing child pornography currently precludes a conditional sentence. The defence argues that the mandatory minimum is unconstitutional and should be held to be of no force or effect, thus opening the door to a conditional sentence; and 4. Ultimately, what sentence should be imposed?

1. Does the Principle in Kienapple Apply to the Two Counts?

[3] Ms. Stevens argues that the two offences do not raise a Kienapple issue but, in any case, concedes that the resolution to this question ought not to impact the total sentence. Ms. Lutes agrees with the latter comment but not with the Crown’s Kienapple position.

[4] The rule in R. v. Kienapple, [1975] 1 S.C.R. 729 is designed to prevent multiple convictions arising out of the same delict. It protects against the double punishment of an offender. There must be both a sufficient factual and legal nexus for the rule to operate and require a stay of the lesser charge.

[5] In this case, it is uncontroversial that the factual basis for the importation and for the possession is identical. Mr. Scott came across the border into Canada with numerous digital devices in his luggage, many of which contained child pornography. He was in possession of them. As he was at the time travelling into Canada, he was also simultaneously importing the material across the border. The factual foundation of both charges relies on precisely the same act.

[6] The real question, as is generally true with Kienapple issues, is whether there is a sufficient legal relationship between the two offences. In elaborating on Kienapple in the subsequent case of R. v. Prince, [1986] 2 S.C.R. 480, Chief Justice Dickson said at pp. 498-499,

…the requirement of sufficient proximity between offences will only be satisfied 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.

[7] Applying this formulation, we start with the fact that it is the conviction for simple possession that is sought to be precluded on the basis of Kienapple. There are cases that reject the application of Kienapple in the context of drug or tobacco importation but in those instances, it was not a conviction for simple possession that was in issue. A possession offence may have extra elements beyond simple possession, like possession for the purpose of trafficking for example: see Bell v. R., [1983] 2 S.C.R. 471 at para. 30; R. v. Debo, 2010 QCCQ 7584 at paras. 65-66; R. v. Elshebiny, 2015 ABPC 164 at paras. 30-35.

[8] With a child pornography offence committed in the manner this one was, importing will always include simple possession. Actual possession or constructive possession within Section 4(3) of the Criminal Code is a necessary predicate of the importation offence. Importation cannot be committed without possession.

[9] The only difference or distinguishing element between the two offences is that the importing count includes the extra element of importation. Otherwise, the two offences are identical. But the extra element contained in the more serious offence is irrelevant for Kienapple purposes. In view of the perfect identity between the two offences in every other respect, the lesser offence--the possession--must be conditionally stayed pursuant to Kienapple.

2. Is a Sentence of Two Years Less a Day in the Range?

[10] It makes sense to do a general initial survey of the sentencing law to ascertain whether a sentence of two years less a day is in the range for this offence and this offender. If not, there is no need to embark on an analysis of Ms. Lutes’ constitutional attack on the mandatory minimum or to determine whether a conditional sentence ought to be imposed. Furthermore, a two-stage process is mandated by the conditional sentencing regime. The first step is to ascertain whether a sentence of under two years is appropriate and if yes, the second step is to ask whether a conditional sentence should be imposed: R. v. Proulx, 2000 SCC 5 at para. 50. I will follow that sequence.

[11] Several of the importation cases supplied by the Crown have sentencing ranges in the area of two years incarceration: see R. v. McTurk, 2015 ONCJ 63; R. v. Finn, 2012 YKTC 106. However, my brother Stribopoulos J. in R. v. Branco, 2019 ONSC 3591, albeit prior to the important pronouncements in R. v. Friesen, 2020 SCC 9 and R. v. M.M., 2022 ONCA 441, performed a thorough canvass of the sentences for possession and concluded at paragraph 101 that the range was between intermittent sentences and 3.5 years in the penitentiary. Most sentences were significantly lower than two years. Also see R. v. Doucette, 2021 ONSC 371 and R. v. Dutchession, 2021 ONCJ 480.

[12] Of course, the importation offence is more serious than the possession offence as it involves bringing this abhorrent material across the border into Canada: R. v. Jones, (2006), 211 C.C.C. (3d) 4, 81 O.R. (3d) 481 (Ont. C.A.) at paras. 30-37. The greater seriousness is reflected in the higher maximum sentence for importation, 14 years as opposed to 10 years for possession. Nonetheless, although requiring some adjustment, the range for possession offences summarized by Stribopoulos J. sets out rough guideposts for the importation offence as well.

[13] There is nothing unduly aggravating about Mr. Scott's offence beyond the significant amount of material and the importation into Canada. As well, most of the material was anime or stories and did not involve the abuse of children in its making. While not a mitigating factor, in assessing the gravity of the offence, it is significant that for a good proportion of the material, children were not involved in its production.

[14] Many of the Crown’s cases with sentences over two years have substantial aggravating features absent here: see R. v. Finn, 2012 YKTC 106; R. v. Brown, 2022 ONCA 516; R. v. Olivetti, 2022 ONCA 142; R. v. Kaardal, 2022 ONCJ 441; R. v. Jenkins, 2021 ONSC 2963; R. v. Taylor, 2019 NBQB 262; Ontario v. G., 2020 SCC 38. Most prominently, the making available cases, in my view, offer a distinguishing aggravating feature. Making available disseminates the material and increases significantly the harm caused. In this case, Mr. Scott simply possessed the material for his own purposes, and according to him did not even look at the material very often or at all after downloading it initially. He did not, like in many of the cases, make the pornography available to others. It was for his own viewing only.

[15] The fundamental principle of sentencing in Section 718.1 of the Criminal Code is proportionality in relation to the gravity of the offence and the degree of responsibility of the offender. In completing this brief survey of the appropriate sentence, factors with respect to the offender must also be incorporated. While the case law and Criminal Code are clear that denunciation and deterrence are the primary sentencing principles with respect to child pornography, the particulars of the offender are germane and should not be forgotten.

[16] In this case, Mr. Scott is a first offender and is 76 years old. He has been a contributing member of society for many years and has excellent family support. He has expressed remorse and I have no doubt that he is sincere. These are mitigating factors weighing against a sentence in the range requested by the Crown.

[17] I conclude that the case law and the circumstances of this offence and this offender demonstrate that a two year less a day sentence is in the general range of fit and appropriate sentences. A conditional sentence would be available but for the one-year mandatory minimum.

3. Is the One Year Mandatory Minimum for Importing Child Pornography in Section 163.1(3) of the Criminal Code Cruel and Unusual Punishment Contrary to Section 12 of the Charter of Rights and Freedoms?

[18] Judicial precedent with respect to both the constitutional validity of child pornography sentences and closely associated mandatory minimum sentences is decisive of the result. The Court of Appeal in R. v. John, 2018 ONCA 702 found the six-month mandatory minimum sentence for possession of child pornography a violation of Section 12 of the Charter, not saved by Section 1, and consequently of no force or effect. Subsequent to John, the Court of Appeal struck down the minimum two-year sentence for receiving a material benefit from sexual services provided by a person under the age of 18 years in R. v. Joseph, 2020 ONCA 733, at paras. 143–55. Then in R. v. Safieh, 2021 ONCA 643, the Court of Appeal struck down the five-year minimum for procuring a prostitute under the age of 18 years.

[19] Since the time of John, the Ontario Superior Court has held the majority of the child pornography mandatory minimum sentences for other offences to be unconstitutional as well: R. v. Boodhoo and others, 2018 ONSC 7207 (distributing child pornography); R. v. Rytel, 2019 ONSC 5541; Doucette (accessing child pornography); R. v. Walker, 2021 ONSC 837 (accessing and making available) and R. v. Mootoo, 2022 ONSC 384 (possession of child pornography for the purpose of distribution; making sexually explicit material available to a person under the age of 16).

[20] The proverbial writing is on the wall. It is unnecessary to finally decide Ms. Lutes argument that because the mandatory minimum of one year for importation is in the same sub-section as several other child pornography offences which have been held inoperative, the importing offence has already been held to be of no force or effect I am, however, skeptical of this argument. The various and sundry ways of committing child pornography listed in Section 163.1(3) of the Criminal Code (“transmits, makes available, distributes, sells, advertises, imports, exports or possesses for the purpose of transmission, making available, distribution, sale, advertising or exportation”) ought to be evaluated individually. Given the seriousness of holding Parliament’s legislative choices to be of no force or effect, prudence counsels care and discretion. There is no good reason not to tackle each of the various modes of committing the offence in their own turn.

[21] Analysis of the constitutional issue in this case is facilitated by the luxury of standing on the shoulders of the Court of Appeal decision in John. The mandatory minimum cases in the Superior Court have taken this approach as well. The same hypothetical endorsed by Justice Pardu in John to demonstrate gross disproportionality-- the methodology used in the context of Section 12-- has been employed in the other cases with necessary modifications. That hypothetical is:

An 18-year-old whose friend forwards him a "sext" from the friend's 17-year-old girlfriend without her knowledge. The 18-year-old doesn't forward the "sext" but keeps it on his phone.

[22] A sext was defined as a sexually suggestive digital image, video or text message transmitted by cellphone or the Internet (see paras. 29-30). The features which characterized the lower moral culpability of this hypothetical were explained by Justice Pardu at para. 39:

Most members of the community would consider a six-month jail sentence a substantial interference with individual liberty and would find it intolerable that such a punishment could be applied to this behaviour, especially given the number of images/videos involved (one single image), the nature of the image in question (lawfully self-created), the manner of acquisition (passive recipient) and the nature of the offender (young adult).

[23] Another reasonable hypothetical could be based on one story or anime of the kind Mr. Scott had in his possession. This type of material does not require the exploitation of a real person and, for that reason, is of lower moral culpability. Again, like the John hypothetical it could have been passed on from another person to Mr. Scott and then kept on his digital device.

[24] The Respondent Crown seeks to differentiate the reasonable hypothetical from John on the basis of the added importation element. However, this is insufficient to distinguish that hypothetical from this one. It should be remembered that the mandatory minimum considered in John was six months; in this case the minimum is substantially higher, 12 months. At the least, this higher minimum compensates for the extra importation aspect. Second, the importation element itself varies in seriousness. If the material was already in the accused’s possession when leaving Canada, there is not a massive difference in culpability from the possession offence. As the Court said in Safieh while striking down the procuring mandatory minimum sentence as unconstitutional,

While the procuring offence in this case is more serious than the receiving of a benefit offence described in s. 286.2(2) [and struck down in the Joseph case], the offences are closely related and raise very similar reasonable hypotheticals for consideration.

[25] Nothing in the two recent Supreme Court of Canada cases on cruel and unusual punishment (R. v. Hills, 2023 SCC 2; R. v. Hilbach, 2023 SCC 3) throw any doubt on the reasoning or result in John, the other Court of Appeal cases in this area or on the Superior Court mandatory minimum cases. The Crown does not suggest otherwise.

[26] In conclusion, as was said in John, the one year mandatory minimum is “entirely unnecessary.” The Supreme Court in Hills added,

38… Mandatory minimums can “function as a blunt instrument” and “deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range” (Nur, at para. 44). In “extreme cases”, they may impose unjust sentences “because they shift the focus from the offender during the sentencing process in a way that violates the principle of proportionality” (para. 44). When the effects of the impugned punishment are grossly disproportionate to what would have been appropriate (Smith, at p. 1072), the punishment is cruel and unusual because it shows the “state’s complete disregard for the specific circumstances of the sentenced individual and for the proportionality of the punishment inflicted on them” (Bissonnette, at para. 61).

[27] Trading the certainty and simplicity of a mandatory minimum for the ability to craft a sentence with sensitivity to the individual circumstances of the offence and the offender contributes to the fairness and integrity of the system. When trial judges err, as they will on occasion, the Court of Appeal can be trusted to increase sentences that are inadequate or which fail to observe the paramount sentencing principles. This recently occurred in R. v. McCaw 2023 ONCA 8.

[28] For these reasons, I hold that the one-year mandatory minimum for importing child pornography violates Section 12 of the Charter, is not saved by Section 1, and is therefore of no force or effect under Section 52 of the Constitutional Act.

4. What Sentence Should Be Imposed?

[29] In analyzing the question of whether a conditional sentence ought to be imposed, I am guided by M.M. which in turn relied on Friesen, at paras. 95, 101-105 and R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161. Justice Doherty held in M.M.,

16 Conditional sentences for sexual offences against children will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate – for example, where it gives rise to a medical hardship that could not adequately be addressed within the correctional facility. It would not be appropriate to enumerate exceptional circumstances here and we make no attempt to do so.

[30] It is argued by Ms. Lutes that this is an exceptional case when consideration is had to all the circumstances of the offence and the offender. Other cases, some pre-Friesen, some post, have imposed conditional sentences for child pornography convictions: Rytel; R. v. Cayabyab, 2019 ONCJ 772 at para. 38; R. v. Nepon, 2020 MBPC 48 (Man. Prov. Ct.); R. v. Canning, [2019] O.J. No. 4846 (Ont. C.J.), at para. 34; R. v. S. (H.), 2014 ONCA 323, 308 C.C.C. (3d) 27 (Ont. C.A.), at para. 58; R. v. Polanco, 2019 ONSC 3073 (Ont. S.C.J.), at paras. 53-55. To analyze this submission, a review of the offence and the offender is necessary.

a. The Offence

[31] In terms of the total quantity of child pornography files in Mr. Scott’s possession, there were approximately 1550 over five digital devices. Of this total, about 1461 were anime or computer-generated images (CGI) and 89 were of real children. Of the 98 videos located, 41 were anime or CGI and 57 depicted real children. The officer in charge testified that he could not access some of the material due to its sheer size and volume. However, given that the highest proportion of child pornography on the devices was no more than 10%, it cannot be inferred beyond a reasonable doubt that the inaccessible material was child pornography.

[32] There can be little doubt that Ms. Lutes is correct in her argument that child pornography that does not depict real children is lower on the moral culpability scale. Ms. Stevens did not mount an argument against this position. Several cases have alluded to it: R. v. Oakey, 2011 ONCJ 404 at paras. 7. 25; R. v. D.L., 2012 ONSC 2791 at para. 43; Mahannah, [2013] O.J. No. 6330 (Ont. S.C.) at para. 22.

[33] This is confirmed by the case law describing the harms of child pornography. The leading case is R. v. Sharpe, 2001 SCC 2, in which McLachlin J. as she then was, said,

92…Children are used and abused in the making of much of the child pornography caught by the law. … The abuse is broad in extent and devastating in impact. The child is traumatized by being used as a sexual object in the course of making the pornography. The child may be sexually abused and degraded. The trauma and violation of dignity may stay with the child as long as he or she lives. Not infrequently, it initiates a downward spiral into the sex trade. Even when it does not, the child must live in the years that follow with the knowledge that the degrading photo or film may still exist, and may at any moment be being watched and enjoyed by someone…

[34] Also see Inksetter, paras. 22-25.

[35] Of course, the other profound and lasting harms of child pornography remain in the case of anime, stories and computer-generated images. Child pornography possession “fuels fantasies, making paedophiles more likely to offend.” Sharpe, paras. 87-89. This pertains equally to the non-photographic versions as it does to the photographic. This type of material is vile and the interest people have in it, unfathomable. We have an overwhelming instinct to protect and nurture children. Exploiting them sexually is a grotesque reversal of this natural instinct and demands strong condemnation. The damage to children and the very high moral blameworthiness of the offenders was detailed in Inksetter, M.M. and Friesen, paras. 42-94 and in the other cases. Also see Rytel, paras. 23-30. The victim impact statements of two victims of child pornography, the mother of Pia and Maureen herself, are horrific and chilling. The damage inflicted is profound and life long.

b. The Offender

[36] Mr. Scott is a 76-year-old first offender and is of previously good character. He has impressive support from his family. He expressed remorse early on in the process and that has continued right up to the time of sentencing. His pre-sentence report was very positive.

[37] In terms of his background, Mr. Scott's father was a violent man towards his wife and towards his four sons. When Mr. Scott was 22 years old, his mother and father divorced. His father had very little involvement with his sons or wife after the divorce.

[38] Mr. Scott is highly educated. He has an undergraduate university degree from the University of Toronto in applied science and industrial engineering. He received his MBA in 1976 and went on to a career in public accounting and consulting. Mr. Scott was extremely successful in senior executive positions. His last job was as vice president and chief financial officer for Geac Corporation, a software technology company. He retired in 2000.

[39] Mr. Scott separated from his wife approximately 25 years ago but continues to reside with her in the matrimonial home. Neither have had partners since their separation. His wife had two strokes five years ago and Mr. Scott has been very attentive to her care. Everyone in Mr. Scott's family has relied upon him financially and otherwise. He has assisted his brothers and his two adult daughters. He is committed to them and his five grandchildren.

[40] One of his daughters describes Mr. Scott as a great dad and someone who looked after their mother. There is no doubt in her mind that the family means the world to him. One of Mr. Scott’s brothers, a lawyer at a major Toronto law firm, has written a letter attesting to his brother’s remorse and humiliation and providing further detail about the respect and leadership role he has in the family.

[41] Mr. Scott has been in counseling with a therapist to address his behavior. A report was filed on sentence from a psychologist detailing the 10 individual sessions that Mr. Scott had with her between November 26, 2020 and February 8, 2021. This counselling began a few months after arrest and charge and substantially pre-dates the findings of guilt made against him. The psychologist said that Mr. Scott was quite open with her and receptive to therapy. He talked to her about his deviant sexual interest. He appeared genuinely interested in better understanding his motivation and in wanting to learn to manage his problem effectively to prevent future behaviors.

[42] The psychologist recorded that through the therapy Mr. Scott came to better appreciate the consequences of his behavior to himself and others. The psychologist stated that based on the information available to her, albeit largely based on a self report, many of the factors which contributed to the deviant sexual behaviors have been addressed.

[43] A risk assessment was completed by the same psychologist. She interviewed Mr. Scott specially for this purpose for a total of 5 1/2 hours in the fall of 2022 after the findings of guilt were made. Mr. Scott reported that he had not viewed any child pornography since his arrest. He told the author that he was very ashamed of his actions. His family members were all shocked when he was arrested. He resides with some of his grandchildren but there are no concerns with respect to them.

[44] Based on what Mr. Scott told her, the psychologist opined that he meets the DSM 5 TR criteria for pedophilia. The psychologist found that Mr. Scott's risk to reoffend is estimated to be in the low range and the risk to sexually offend is also estimated to be in the low range. He has a reduced sex drive and has not been sexually active for 25 years. The author ended by saying,

Provided his age, his reduced sex drive and sexual functioning, his strong family support, and his meaningful participation in sex-offender specific treatment, I do not believe that Mr. Scott is at a significant risk for re-offending in a similar manner. He appears to have genuinely learned from his mistakes and now has the knowledge and skills to manage his low risk. Nor do I have a significant concern that his behaviour will escalate towards more serious, contact driven offences.

[45] Mr. Scott talked very openly about his deviant interest in child pornography during his statement to the police immediately after his arrest. Although I excluded the statement because the Crown failed to prove voluntariness, in my view the statement is admissible on behalf of the defence on this sentencing. The standard of proof incumbent on the defence at this stage--a balance of probabilities—is much lower than the burden on the Crown at trial to prove voluntariness beyond a reasonable doubt.

[46] More to the point, the voluntariness rule serves a different master than does the tendering of an offender’s police statement on sentence. The purposes behind the voluntariness rule—preserving the right to choose to talk to the police or not, the right to silence, the right against self-incrimination and reliability and credibility concerns (R. v. Tessier, 2022 SCC 35 at paras. 51, 70)—is not implicated when the defence is tendering the accused’s statement on sentence. Nor, in my view, does the rule against previous consistent statements preclude admission (see for an analysis of the rule R. v. Edgar, 2010 ONCA 529, [2010] O.J. No. 3152, leave to appeal refused, [2010] S.C.C.A. No. 466 (S.C.C.)) The rules of admissibility at a sentencing hearing are significantly loosened from the usual strictures at trial: R. v. Albright, [1987] 2 S.C.R. 383 at paras. 22-23. In order for the defence to prove mitigating facts to fulfill their onus under Section 724(3)(d) of the Criminal Code and in order to properly characterize the offender, prior statements like Mr. Scott’s statement in this case ought to be admissible in appropriate circumstances and with the necessary cautions.

[47] In this instance, Mr. Scott clearly was not concocting what he told the police. The statement was of a confessional nature. He admitted guilt. Although initially standing his ground not to say anything about the material on his digital devices, Mr. Scott eventually opened up. He said that the files came off the internet and that he did not trade files. In his mind, child pornography stories are not illegal. He said he preferred them because they left matters to his imagination which was better. I would note parenthetically that the Canada Border Services Agency (CBSA) officers did not initially realize that stories and other written material were within the criminal prohibition either. Mr. Scott said that he did not like images of real children being abused. He said that he downloaded material several times a year although less frequently in the last few years. In the statement, Mr. Scott stressed that his interest was purely a fantasy interest, and he was not interested in the real thing. He has never had the temptation to act on his fantasy. He clarified that he did not have an interest in having sex with a child. He saw himself as low risk because he had the fantasy interest for a long time but had never acted on it. Furthermore, he was now old.

[48] I found Mr. Scott credible and reliable. His body language and his words portrayed a man struggling to make sense of a terrible secret he had harboured for a very long time. He admitted to highly stigmatized activity and shocking thoughts. At the same time, his self-report of low risk coincides with that of the psychologist. His openness and general demeanour demonstrated shame and humiliation. I am convinced that Mr. Scott is genuinely remorseful and that the prospect of further offences is low.

c. The Effect of Law Enforcement Misconduct

[49] Ms. Lutes argues with the assistance of R. v. Nasogaluak, 2010 SCC 6 and R. v. Foster, 2018 ONCA 53 that the breaches of Mr. Scott’s Charter rights under Section 8 and 10(b) offer mitigation upon sentence (for details of the violations see R. v. Scott 2022 ONSC 4496). The evidence was not excluded and thus there has been no remedy yet apportioned for the breaches.

[50] The breaches were as follows: i. The CBSA officers asked for Mr. Scott’s password for the Surface tablet and then searched it and another one of his digital devices at Pearson. The officers believed that they had a power to search digital devices based on Section 99(1)(a) of the Customs Act. It was found that this provision, in so far as it authorized searching digital devices without any threshold for the invasion of privacy, was contrary to Section 8 of the Charter and of no force or effect: R. v. Pike, 2022 ONSC 2297; ii. The search by the officers was in good faith because they could not have known that the provision would ultimately be found to be unconstitutional in this respect; iii. On the evidence, the CBSA officers did not have reasonable suspicion to search the devices; iv. The search performed on the computer in particular was wide ranging and was not a trivial invasion of Mr. Scott’s privacy; iv. Furthermore, the CBSA officers, contrary to policy, did not make notes of where they went and what they saw in the digital devices, a factor aggravating the section 8 breach.

[51] While the seriousness of the breaches was substantially diminished by the good faith of the officers, the breaches of Mr. Scott’s privacy occurred in the highly sensitive and personal digital context. See e.g. R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 (S.C.C.) at para. 2 “It is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the search and seizure of a personal computer.” Also see Sherman Estate v. Donovan, 2021 SCC 25 at paras. 49-51.

[52] In addition, the deprivation of the right to counsel—a vital Charter right protecting a detainee upon detention— (R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135 at para. 45)—although also committed in good faith, had significant impact. Consultation with counsel may well have led to Mr. Scott refusing to divulge his computer password. The absence of a password would have thwarted the immediate CBSA search of the devices.

[53] In assessing the prejudice to Mr. Scott from the misconduct underlying the breaches, Nasogaluak at para. 48 tells us that the circumstances of the breach must “align” with the circumstances of the offence or offender. There must be some connection between the breach and either the offence or the offender or both. Nasogaluak adds that this approach is supportive of the communicative function of sentencing and cultivating respect for the shared values of society including those enshrined in the Charter (para. 49).

[54] There are many expressions in the jurisprudence extolling the fundamental nature of privacy rights in our democracy. For example, in Canada (Information Commissioner) v. Canadian Transportation Accident Investigation & Safety Board, 2006 FCA 157 it was said,

46 The concept of privacy has proven sufficiently robust to live up to its description by Justice Brandeis (Olmstead v. United States, 277 U.S. 438 (U.S. Wash. 1928), at 478 (1928)), as the “right most valued by civilized men”, and has shouldered its way into U.S. and Canadian constitutional doctrines (see Stanley A. Cohen, Privacy, Crime and Terror, (Markham: LexisNexis Butterworths, 2005) at page 9).

47 In R. v. Dyment, [1988] 2 S.C.R. 417 (S.C.C.), at 427 per La Forest J. (Dyment), the Supreme Court of Canada spoke about privacy in the following terms:

Grounded in man’s physical and moral autonomy, privacy is essential for the well-being of the individual. For this reason alone, it is worthy of constitutional protection, but it also has profound significance for the public order. The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state.

[55] After quoting from LaForest J.’s articulation of the importance of informational privacy in Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403 at paragraph 67 of that judgment, the court summed up at para. 52, “Privacy thus connotes concepts of intimacy, identity, dignity and integrity of the individual.”

[56] If the conduct constitutes mitigation within section 718.2 (a) of the Criminal Code, then it should be taken into account on sentencing. There is a temptation to gauge the impact on Mr. Scott against the seriousness of his offences and conclude that the breaches are relatively trivial. That would be the wrong approach. The question is one of mitigation. It is not a comparative exercise.

[57] The reflection that the misconduct came reasonably close to leading to exclusion of the evidence demonstrates its significance. It provides some general orientation with respect to the magnitude of the misconduct and how it should impact sentence. The violations had a substantial impact on privacy and the right to counsel in the investigative process, both crucial rights in a free and democratic society. Intrusion by the state into privacy and violations of the right against self-incrimination guarded by the right to counsel are far from trivial. There are long term implications for our society. Misconduct of this magnitude should be translated into some form of remedy. In my view, there should be substantial mitigation accorded to this conduct in the sentencing process in order to communicate the importance of these shared values.

[58] In R. v. Gowdy, 2014 ONCJ 696, a child luring case, the offender’s HIV positive status was improperly released to the public, violating his privacy. In sentencing, Justice Block reduced the sentence he would otherwise have imposed in order to “meaningfully disassociate the administration of criminal justice from the breach and craft a remedy that will address the prejudice suffered by Mr. Gowdy.” A remedy for the violation was fashioned under Section 24(1) of the Charter to impose a maximum conditional sentence despite the existence of a one-year mandatory minimum. A similar result applying a sentence reduction for Charter misconduct was arrived at in R. v. Donnelly, 2014 ONSC 6472 per Nordheimer J. as he then was (improper delay in bail hearing, maltreatment in custody), R. v. Melo, [2012] O.J. No. 5964, R. v. Padda, [2003] O.J. No. 5502 (Ont. C.J.), and R. v. Muthuthamby, 2010 ONCJ 435 (Ont. C.J.).

[59] We know from Nasogaluak that this kind of sentence mitigation does not depend on the finding of a Charter violation. Nonetheless, I believe that Block J.’s reference to the need to disassociate the court from misconduct hits the right note. It echoes section 24(2) principles: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 72:

The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct.”

[60] Disassociation from misconduct particularly as a long-term goal to bolster the integrity of the administration of justice is also an essential part of a trial judge’s sentencing task. In Nasogaluak itself, Lebel J. wrote:

49 … A proportionate sentence is one that expresses, to some extent, society's legitimate shared values and concerns. As Lamer C.J. stated in M. (C.A.):

Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code. [para. 81]

[61] Some cases distill the appropriate mitigation down to specific time that should be taken off the sentence. In this instance, it is sufficient to conclude that the mitigation is substantial and will be factored into the overall sentence.

4. Conclusions

[62] The decision in R. v. Kwok at para. 7 helpfully surveys aggravating and mitigating offences in child pornography sentencings. As applied to this case, these comments are appropriate:

(i) There is no prior criminal record; (ii) There was no production or distribution; (iii) The pornography collection was 1550 files. The major proportion did not involve the abuse of real children, however. With respect to these, Mr. Scott was operating under a mistake of law and thought they were not illegal; (iv) Of the depiction of real children, the age of the children and the depictions were extremely serious; (v) Mr. Scott is not a danger to act on his pedophilic impulses; (vi) There was no clear evidence of whether Mr. Scott paid for the pornography or not. There were no submissions on this issue; (vii) The material was imported across the border but there was no evidence enabling a finding that Mr. Scott had obtained the material while he was abroad; (viii) Mr. Scott is an elderly offender; (ix) Mr. Scott is of previous good character and has strong family support; (x) He has expressed remorse, shown insight into his problem, and has sought out and received therapy beginning soon after being charged. Given all the circumstances including the shame Mr. Scott has expressed, I do not believe there is any significant prospect of re-offence; (xi) Mr. Scott’s privacy on his computer and digital devices was intruded into and this constitutes a mitigating factor.

[63] Should a conditional sentence be imposed? The basic statutory prerequisites are met. The offence is not excluded from the conditional sentence regime, the sentence ought, in my view, be below two years in jail, and the safety of the community would not be endangered by a conditional sentence. Mr. Scott is low-risk. The real question here is whether a conditional sentence would be consistent with the fundamental purpose and principles of sentence: R. v. Sharma, 2022 SCC 39, at para. 13; McCaw, at para. 20. Denunciation and general deterrence are the paramount principles in child pornography cases: McCaw, at paras. 28-30, section 718.01 of the Criminal Code. But rehabilitation and individualization cannot be ignored.

[64] In my view the sentence recommended by the Crown of three years is excessive given the circumstances of the offence and the offender. The offence is serious but there are many more serious instances in the case law. There are significant mitigating factors with respect to the offence and the offender, including the impact of the Charter misconduct. Many of the sentences canvassed in Branco, albeit pre-Friesen, are in the one-year range or lower: see paras. 79-100. In my view, the appropriate and fit sentence in this case should be situated in the mid-reformatory range.

[65] In the context of the offence and its aggravating and mitigating factors, together with the mitigating factors with respect to the offender, it is my view that Mr. Scott’s age and his mediocre health lift this case into the exceptional range making a conditional sentence proportionate, and ultimately consistent with the fundamental purposes of sentencing.

[66] The authors of Sentencing (Ruby, 10th ed., online) state:

(a) Elderly Offenders §5.180 The age of an offender, particularly past 70 years, may be a factor to be considered in mitigation, especially where it is combined with evidence of good character. [Footnote to McNamara et al. (No. 2), [1981] O.J. No. 3260, 56 C.C.C. (2d) 516, at p. 520 (Ont. C.A.); R. v. Grimberg, [2002] O.J. No. 526, 163 C.C.C. (3d) 310 (Ont. C.A.) at para. 22.]

[67] Mr. Scott is 76 years old and is not in the best of health. A doctor’s letter was filed on sentence. Mr. Scott a large man with a medical history of coronary artery disease. Mr. Scott suffered a heart attack a few years prior to his retirement. He received stenting in 2009 and was recently diagnosed with atrial fibrillation, a serious heart condition in a man his age. He also has hypertension, hyperlipidemia, prediabetes, and CKD3. He takes seven prescription drugs daily for his various conditions.

[68] Mr. Scott’s health problems obviously do not rise to the level of Justice Doherty’s example in M.M. But that is not necessary to constitute an exceptional case. The purpose of the example was to articulate a particularly powerful and clear instance. Justice Doherty expressly refrained from cataloguing the full gamut of exceptional circumstances. In my view, Mr. Scott’s age, in light of the nature of the offence, his moral blameworthiness and the pertinent mitigating factors, make this an exceptional case. Incarceration would pose unjustifiable hardship for Mr. Scott given his age and physical infirmities. The denunciation and general deterrence of a lengthy conditional sentence in all the circumstances will discharge the pertinent sentencing objectives.

[69] A conditional sentence of 23 months duration will be imposed on the following terms:

i. The Statutory terms

1. Keep the peace and be of good behaviour.
2. Appear before the court when required.
3. Report to a supervisor within 72 hours of the signing of this order, and thereafter as required.
4. Remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor.
5. Notify the court or the supervisor in advance of any change of name or address, and promptly notify the court and the supervisor of any change of employment or occupation.

ii. Additional terms

6. For the first 15 months of your conditional sentence: remain in your residence at all times except: a. For medical emergencies involving you or a member of your immediate family; b. For travel directly to, directly from, and while at counseling sessions or work; c. With advance written permission from your supervisor; or d. On Sundays from 1:00 p.m. to 5:00 p.m. for the purpose of attending to the necessaries of life.
7. For months 16 to 23 (inclusive) of your conditional sentence: remain in your residence from 10:00 p.m. to 6:00 a.m. except: a. For medical emergencies involving you or a member of your immediate family; or b. With advance written permission from your supervisor.

[70] The following ancillary orders will be made:

a. an order pursuant to s. 487.051(2) of the Criminal Code for the taking of bodily substances for the purpose of forensic DNA analysis; b. SOIRA registration for 20 years pursuant to s. 490.013(2)(b); c. Forfeiture of digital devices pursuant to s. 164.2; d. A section 161 order for 20 years: (a) No public parks, playgrounds, or schoolgrounds except for attending ski competitions while accompanied by another adult (b) No employment/volunteering involving children under 16 years (c) No contact/communication with persons under 16 years, except his grandchildren with the consent of their parents after been advised of the present conviction (d) Not to use the Internet or other digital network, 1. Except while using the Internet or other digital network registered in your own name or while using a digital device registered in your own name; 2. To access directly or indirectly any websites, social media sites, social networks, discussion forums, chat rooms or maintain a personal profile on any site where child pornography is present, shared, discussed, accessible or offered for sale; 3. By means of a virtual private network or through encryption or anonymizing software.

**D.E HARRIS J.** **Released:** May 19, 2023