W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2) or (3) or 486.5(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of:
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step‑daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1) (a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.
DATE: 20060313
DOCKET: C41894
COURT OF APPEAL FOR ONTARIO
GOUDGE, ARMSTRONG and BLAIR JJ.A.
B E T W E E N :
Her Majesty the Queen
Daniel Stein, for the appellant
Respondent
- and -
L.W.
Michal Fairburn, for the respondent
Appellant
Heard: October 31, 2005
On appeal from the convictions for making and distributing child pornography entered by Justice T.C. Whetung of the Ontario Court of Justice dated January 13, 2004 and the sentence imposed dated March 9, 2004.
ARMSTRONG J.A.:
[1] On January 13, 2004, the appellant pleaded guilty to making and distributing child pornography before Justice T. C. Whetung of the Ontario Court of Justice. He was subsequently sentenced on March 9, 2004 to a penitentiary term of two years and three years’ probation. He now appeals his convictions and seeks to set aside his guilty plea. He also appeals his sentence.
[2] For the reasons that follow, I would dismiss the appeal from conviction, but I would allow the sentence appeal.
THE FACTS
[3] The appellant and Ms. J. began a dating relationship in August 2000. Ms. J. celebrated her 15th birthday on September 15, 2000. The appellant was 22 years old at the time.
[4] On March 24, 2001 the appellant and Ms. J. traveled to Toronto with another couple to attend a Toronto Maple Leafs hockey game. They spent the night at a Toronto hotel where the appellant and Ms. J. engaged in consensual sex. During this encounter the appellant used a camera, provided by Ms. J., to take photographs of Ms. J. and himself engaging in acts of oral and vaginal sex.
[5] About two months following the Toronto weekend Ms. J. terminated the relationship. The appellant was devastated by this turn of events. While in the midst of dealing with his devastation, the appellant made a collage. The collage contained photographs that had been taken in Toronto of Ms. J. engaged in explicit sexual acts with the appellant. While part of the appellant’s body was shown in the photographs, unlike Ms. J., neither his face nor any other identifying characteristics were apparent. There were additional photographs of Ms. J., fully clothed, in the collage. The collage included Ms. J.’s name and her place of residence. Beneath the photographs the collage contained the following inscription:
Weekend away.
Hockey tickets: Free “Extra Shit”: About $250.00
Hotel room: $269.00 a RING (fuckin’ stupid): $500.00
telling me you love me one weekend and that it’s over the next weekend,
and trusting me with these pics….
“PRICELESS”
Above the word, “PRICELESS” there appeared an exhortation to Ms. J., which included a number of profanities.
[6] The collage was scanned into the appellant’s computer and e-mailed to a friend who had apparently been in Toronto at the time the sexually explicit photographs were taken. The appellant also saved the collage to a default folder on his computer that was accessible to two peer-to-peer file sharing programs, described in the evidence as Kazaa and Sexter. Eventually the collage was passed by way of e-mail to others, who included friends and acquaintances of Ms. J. By April 2002, the collage came to the attention of Ms. J. Ms. J. telephoned the appellant and confronted him in respect of the collage. At first he denied having anything to do with the collage, but soon he admitted his involvement because Ms. J. “broke his heart”.
[7] In November 2002, a friend of Ms. J., in a fit of anger, e-mailed the collage to Ms. J.’s father. The e-mail contained the subject line: “Daddy look what I’ve become.” Also in November 2002, a student at Ms. J.’s school placed a printed copy of the collage in Ms. J.’s locker. This led to Ms. J. taking the printed copy of the collage to the school principal. The principal called the police.
[8] On January 26, 2003 the appellant was arrested and charged with making, possessing and distributing child pornography. The appellant gave a cautioned videotaped statement to the police in which he admitted to taking the photos of Ms. J., making the collage and e-mailing it to his friend.
[9] The provisions of the Criminal Code, S.C. 1993, c. 46, s. 2 under which the appellant was charged are as follows:
163.1 (1) In this section, “child pornography” means
(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity,
(2) Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of
(a) an indictable offence and liable to imprison-ment for a term not exceeding ten years; or
(b) an offence punishable on summary con-viction.
(3) Every person who imports, distributes, sells or possesses for the purpose of distribution or sale any child pornography is guilty of
(a) an indictable offence and liable to imprison-ment for a term not exceeding ten years; or
(b) an offence punishable on summary con-viction.
[10] The appellant retained Paul Burgess as his lawyer. Mr. Burgess appeared in court on January 13, 2004, when the appellant entered his guilty plea. Mr. Burgess advised the court that the appellant intended to plead guilty to the making and distribution charges. Counsel for the Crown advised that he intended to withdraw the possession charge after the guilty plea. No inquiry was made by the trial judge, pursuant to s. 606 of the Criminal Code, as to the voluntary nature of the appellant’s plea. The appellant was arraigned and he pleaded guilty.
[11] The Crown read a summary of the facts taken from a synopsis prepared by the police. The synopsis was read without prejudice to the ability to call evidence on the day of sentencing. The synopsis included a reference to the effect that the appellant had posted the collage on Kazaa and Sexter. In response to a question from the trial judge concerning the number of people who may have accessed the collage by the Internet, counsel for the Crown advised that anybody in the world could access it since it was posted on Kazaa and Sexter. The trial judge then observed: “Yes, that’s my understanding too, there’s simply no limit to the extent of the distribution now.”
[12] The trial judge made findings of guilt and adjourned the case in order that a presentence report could be prepared.
[13] Richard Kucharski, a probation and parole officer, prepared the presentence report. The presentence report presented a very negative picture of the appellant. Mr. Kucharski commented on the appellant’s total lack of remorse. He indicated that the appellant had failed to tell him that he had made the collage “accessible over the Internet by posting it on the Kazaa and Sexter sites”. Mr. Kucharski suggested that the appellant misled him concerning counselling that he was receiving from two doctors. The presentence report concluded with a highly questionable reference to a recommendation made by Detective Chapman, the investigating officer, to the effect that the appellant should serve a custodial sentence followed by a significant period of probation.
[14] Mr. Burgess forwarded the presentence report to the appellant for his comment. The appellant prepared a six page, single-spaced response. In that response he took issue with a number of statements made by Mr. Kucharski. He also attached a copy of a letter of apology dated November 5, 2003, which was addressed to Ms. J. He explained that he had never sent the letter of apology to Ms. J. because of the no contact restriction attached to his bail order.
[15] The appellant also explained in his response to the presentence report that it was not his intention to make the collage available for anyone to access:
I saved the file in ‘My Documents’ folder, my intention was not to make it available for anyone for access, this just happened to be the default folder where any of my files [were] saved to. This is the folder I used to download files to [and] from the internet. This file was a shared folder but you could only access the folder when I was connected to the internet and was logged in to a program that was used for downloading and uploading files [emphasis in original].
[16] Ms. J. prepared a handwritten sixteen page victim impact statement which Mr. Burgess sent to the appellant for his comment. The victim impact statement outlined, in great detail, the understandably devastating impact of the appellant’s conduct on Ms. J.’s life. Ms. J. indicated in her statement that, when she heard that the collage was on Kazaa, she spent hours searching for the pictures but did not find them. The appellant prepared a seven page response to the victim impact statement, which he gave to Mr. Burgess.
[17] The sentencing hearing was held before the trial judge on March 9, 2004. Mr. Burgess attempted to explain to the trial judge how Kazaa and Sexter operated and the likely limited distribution that was achieved through these media. However, his sparse knowledge of computer technology prevented him from doing so. Mr. Burgess advised the trial judge:
Your Honour, I have a longer explanation which was provided by Mr. [W.] which again is complete – complete computer-ease to me. I’m happy to forward it to Your Honour if you wish to read it.
The trial judge declined the offer.
[18] Mr. Burgess sought a conditional sentence on behalf of the appellant. He submitted to the trial judge that the appellant did not realize that the collage would be considered child pornography (something the appellant had also told the author of the presentence report). Mr. Burgess explained that if the appellant had known he was committing a criminal offence, he would never have made the collage.
[19] Mr. Burgess did his best to deal with the conclusion made by the author of the presentence report that the appellant showed no remorse for his actions. Mr. Burgess called Mr. Kucharski as a witness. However, not much was gained on behalf of the appellant through the cross-examination which followed, as Mr. Kucharski stood his ground.
[20] Counsel for the Crown submitted that this was not a usual case of child pornography and observed that other cases dealt with commercial distribution to satisfy the greed of some and the prurient, perverted interests of others. Crown counsel sought “a period of incarceration in a real facility”. By the latter comment, I assume counsel meant a penitentiary term. He also sought a lengthy period of probation.
[21] During the course of sentencing the appellant, the trial judge engaged the appellant in a dialogue. In that dialogue the appellant attempted to explain that he had not posted the collage on either Kazaa or Sexter but that he simply saved it in his default folder. As it happened, he had also used his default folder to download material from Kazaa or Sexter. As soon as he realized the potential for access by others to the collage through Kazaa and Sexter, he contacted representatives of Kazaa and Sexter to stop the collage from being downloaded or uploaded.
[22] The trial judge concluded that, because of the age of Ms. J., the appellant was in a position of trust in relation to her.
[23] The trial judge made the following statements concerning sentence:
In the present matter, it seems that the production and distribution of the child pornography involved a desire to humiliate and embarrass and perhaps to ruin the life of the victim.
The distribution of these images would also involve a conscious decision and the creation and distribution were clearly done for a form of gratification by Mr. [W.].
I am unable to discern the nature of that gratification. I have heard of things like revenge. I have heard of things like a desire to make the victim hurt like he felt he was hurting because she ended the relationship, and there may be other aspects of gratification which are not evident in this matter, but nonetheless this matter falls within a form of gratification by distribution of what happens to be, in the circumstance in which it occurred, the production and distribution of child pornography.
There is, in my opinion, in this matter a need for a specific deterrent sentence, based upon the contents of the presentence report before me and based upon the lack of insight evidenced in that presentence report.
There is a need for a general deterrent sentence in this matter. It must be clear to members of the community who may have the technical expertise and ability to interfere with others’ lives in these hurtful and shameful ways, as I’ve said before, with a simple key stroke, that they should not do so.
[24] The trial judge concluded that a conditional sentence would not address the sentencing principles set out in s. 718.2 of the Criminal Code. In the result, the trial judge concluded that the appropriate sentence was two years in custody on each count to be served concurrently. The trial judge also granted a term of probation for three years which included a condition that the appellant not possess or operate any computer or electronic device that is capable of storing information that can be displayed visually or that can transmit electronic information via the Internet.
THE APPEAL
[25] The appellant seeks to set aside his convictions and requests a new trial. In the alternative, the appellant seeks leave to appeal sentence and a reduction in sentence on the basis that his sentence is excessive.
THE CONVICTION APPEAL
[26] The appellant raises a number of issues in the appeal to set aside his guilty plea. The issues can be reduced to two main grounds:
(i) his pleas of guilty were involuntary; and
(ii) he was the victim of ineffective representation by counsel.
In support of the above grounds of appeal he has filed in excess of 800 pages of fresh evidence, and 90 pages of facta.
The Validity of the Appellant’s Plea
[27] Section 606 of the Criminal Code provides:
- (1) An accused who is called on to plead may plead guilty or not guilty, or the special pleas authorized by this Part and no others.
(1.1) A court may accept a plea of guilty only if it is satisfied that the accused
(a) is making the plea voluntarily; and
(b) understands
(i) that the plea is an admission of the essential elements of the offence,
(ii) the nature and consequences of the plea, and
(iii) that the court is not bound by any agreement made between the accused and the prosecutor.
(1.2) The failure of the court to fully inquire whether the conditions set out in subsection (1.1) are met does not affect the validity of the plea.
[28] As stated above, no plea inquiry was made by the trial judge. Counsel for the appellant properly acknowledges that the failure to make a plea inquiry does not necessarily vitiate the plea. However, he submits that, in this case, the absence of a plea inquiry raises an issue as to its validity. Counsel submits that the record before the sentencing judge indicates that, after the plea was entered, there was sufficient reason to doubt its validity and to cause the judge to strike the plea and proceed to trial. In support of this position, counsel cites this court’s reasons for judgment in R. v. S.K. (1996), 99 C.C.C. (3d) 376 (Ont. C.A.) at page. 382:
Rule 10, Commentary 12 of the Law Society of Upper Canada’s Rules of Professional Conduct deals with plea bargaining and requires that the lawyer be assured, among other things, that the client is prepared to admit the necessary factual and mental elements of the guilty plea. Thus, it was proper for the trial judge to assume at the time of the plea that the appellant admitted the facts which had been put in evidence concerning the four counts but, at the second stage of the hearing when it became clear that the appellant denied the facts in evidence, the trial judge should have at least considered exercising his discretion to reject the guilty pleas and proceed with the trial [Emphasis added].
[29] Counsel submits that comments attributed to the appellant in the presentence report, comments made by his counsel during the sentencing hearing, and comments made by the appellant to the trial judge all illustrate that the appellant denied culpability and significantly challenged the voluntary nature of his plea.
[30] I do not propose to review in detail all of the comments attributed to the appellant upon which his counsel relies in support of this ground of appeal. Reference to a few will provide sufficient examples to understand counsel’s submission.
[31] The appellant’s counsel relies on the appellant’s comments to the author of the presentence report to the effect that he did not consider the collage to be child pornography and that he did not consider himself to be a child pornographer.
[32] Further, counsel for the appellant relies upon comments made by trial counsel in respect of the alleged posting of the collage on Kazaa and Sexter. Defence counsel quoted the appellant as saying: “I saved the file in ‘My Documents’ folder, my intention was not to make it available for anyone to access, this just happened to be the default folder where any of my files [were] saved to”. However, counsel for the appellant correctly points out that in an exchange with the trial judge, counsel told the court that “there’s no denial of the fact that it was put on Kazaa and Sexter”.
[33] Counsel for the appellant also submits that the appellant’s apology letter to Ms. J. raised the defence of artistic and medical merit insofar as the appellant referred to his creating the collage as an attempt to “stop the pain”. He further argued that references made by Crown counsel and the trial judge to the collage as a take off of a MasterCard commercial were indirect references to the defence of artistic merit.
[34] The above references and others form the basis for counsel’s submission that the trial judge should have considered exercising his discretion to reject the guilty plea and proceed to trial.
[35] In my view, there is nothing to be taken from a fair reading of the record that would lead the trial judge to conclude that the appellant was clearly denying the facts in evidence which supported his guilt. Indeed, all of the constituent elements of the offences were admitted by the appellant at the time of the plea. The fact that he did not consider the collage to be child pornography and that he did not consider himself to be a child pornographer does not detract from his admission of guilt. He recognized that he had committed a breach of the Criminal Code but simply disagreed with the characterization of the offences as offences of child pornography. This is illustrated in a statement that he made to the author of the presentence report. The author reported that the appellant “does not believe that he… should be convicted of child pornography even though that is ‘how the governments see it’”.
[36] The alleged oblique references to artistic and medical merit by Crown counsel and the trial judge are of no help to the appellant. This collage cannot be mistaken for a work of art. No reasonable assessment of the appellant’s comment that the collage was made “to stop the pain” could have led the trial judge to question the validity of the guilty plea.
[37] The appellant also submits that he was pressured into pleading guilty by his counsel.
[38] In his affidavit, filed in support of this ground of appeal, the appellant states:
On January 13th, 2004, when I arrived at court, I noticed that the court docket listed the creation and distribution of child pornography charges, but not the possession of child pornography or the mischief charge. I waited for Mr. Burgess in court. He entered the courtroom, acknowledged me, and approached the Crown attorney. He then walked up to me and asked, “Are you ready to plead guilty?” I told him that I was not going to plead guilty. He responded, “You have to, you said you did it”, and he walked up to the counsel table. That was the last time we spoke that day. He did not give me the option of going to trial. He did not tell me what the penalty might be if I pleaded guilty. He did not tell me that I could be going to jail. I had no idea what my options were, what the repercussions would be if I pleaded guilty, or why I had to plead guilty.
[39] Shannon Young, the girlfriend of the appellant, was sitting in court beside the appellant on January 13th, 2004. She filed an affidavit that gave a similar version of the conversation between the appellant and his counsel on that occasion.
[40] I do not find this evidence convincing. If the appellant did not wish to plead guilty and he really believed that he had no option but to do so by reason of pressure from his lawyer, it is surprising that he made no reference to this pressure until after he was sentenced.
[41] The appellant did not complain to his lawyer in subsequent conversations between the time of his plea on January 13th, 2004 and his sentencing on March 9th, 2004. He made no complaint or reference to this issue to the author of the presentence report. His girlfriend, Ms. Young, made no complaint to the appellant’s lawyer in a telephone call to the lawyer made after January 13th, 2004.
[42] I am not persuaded by this complaint, contained in the affidavit sworn after the appellant was sentenced to a penitentiary term. In my view the evidence, considered as a whole, does not support the conclusion that the appellant was forced to plead guilty by his trial counsel.
Ineffective Representation of Counsel
[43] The appellant alleges that his trial counsel provided ineffective representation. He makes several allegations. Central to his complaint of incompetence is the allegation that his counsel failed to advise him that if he pleaded guilty to the offences charged, he was at risk of going to jail.
[44] The appellant in his affidavit, filed on this appeal, stated that between the day he retained his trial lawyer in March or April 2003 and the day that he pleaded guilty on January 13th, 2004 he never spoke to his lawyer for more than five minutes at a time on four or five occasions at court. He said that he tried to arrange for a lengthier interview in the lawyer’s office but was unable to do so. The appellant also said that his lawyer never returned his phone calls.
[45] According to the appellant his lawyer never told him that he could receive a custodial sentence until the day of sentencing, which was long after he had entered his guilty plea.
[46] Mr. Burgess denied that he never told the appellant that he could receive a custodial sentence. He also denied that his meetings with the appellant were no more than five minutes. Unfortunately, there is very little documentation in the lawyer’s file concerning his discussions with his client. On this issue there is very little, if anything, that is helpful. What emerges from the record is that Mr. Burgess is an extremely busy criminal lawyer who testified in cross-examination that he handles as many as eight to ten cases a day in the Peterborough court. He did not challenge the appellant’s assertion that all of their meetings were at the courthouse at times when the charges against the appellant were before the court to be spoken to.
[47] On the other hand, it is clear from the record that trial counsel believed, and rightly so, that there was no viable defence to the charges of making and distributing child pornography. Counsel’s focus was on his attempt to negotiate a plea bargain, which would keep the appellant out of jail. His discussions with the Crown attorney were directed towards either a conditional discharge or a conditional sentence. A conditional discharge was out of the question. He could not get the Crown to commit to any position on sentence until the Crown saw the presentence report. In the result, if there was to be a plea it would take place before they knew the Crown’s position on sentence.
[48] What appears to have happened is that both lawyer and client, in their discussions, were placing most of their attention on a conditional sentence with the result that jail was not uppermost in either person’s mind. The lawyer’s communication with his client could have been much better. Brief meetings at the court house are not the most satisfactory way to communicate, particularly when counsel is handling as many as eight or ten cases a day. Nevertheless, I am not persuaded that Mr. Burgess did not tell the appellant that there was a risk of his going to jail. The onus is on the appellant in this respect.
Additional Allegations of Ineffective Representation of Counsel
[49] The appellant also submits that he was provided with ineffective representation of counsel in respect of the following:
(i) Counsel failed to research the law in respect of child pornography and the defence of artistic merit;
(ii) Counsel misunderstood the artistic merit defence and failed to give the appellant proper advice in regard to it;
(iii) Counsel failed to investigate whether the appellant agreed with the essential elements of the offence;
(iv) Counsel failed to do more then review the relevant sections of the Criminal Code with the appellant to convey what his options were;
(v) Counsel failed to clarify the Crown’s position on sentencing before his client pleaded guilty:
(vi) Counsel failed to recommend that the appellant seek independent legal advice when it became apparent that the appellant was failing to take responsibility for creating child pornography; and
(vii) Counsel failed to move to strike the appellant’s guilty plea when it became apparent that the appellant was denying responsibility in his responses to the presentence report and the victim impact statement.
[50] In a recent judgment of this court Doherty J.A. reviewed the legal principles relevant to establishing a claim of ineffective representation of counsel. At para. 18 of R. v. Archer (2005), 202 C.C.C. (3d) 60, he held:
It is helpful to begin with a summary of the applicable legal principles, none of which are in dispute. An accused who is represented at trial is entitled to effective representation by counsel. Ineffective representation may result in a miscarriage of justice necessitating the quashing of the conviction on appeal. Evidence relating to the alleged ineffective assistance of counsel will be received on appeal pursuant to s. 683(1) so that the appellate court may determine whether the representation was ineffective and ultimately whether it resulted in a miscarriage of justice: R. v. Joanisse (1995), 102 C.C.C. (3d) 35 at 43-44, 56-58 (Ont. C.A.), leave to appeal to S.C.C. refused, [1996] S.C.C.A. No. 347; R. v. B.(L.C.) (1996), 104 C.C.C. (3d) 353 (Ont. C.A.).
Doherty J.A. further stated at paras. 119-120 that three things must be shown by an appellant seeking to quash a conviction on the basis of ineffective assistance of counsel:
First, where the claim is based on contested facts, the appellant must establish the material facts on the balance of probabilities. Second, the appellant must demonstrate that counsel’s acts or omissions amounted to incompetence. Incompetence is measured against a reasonableness standard. That assessment is made having regard to the circumstances as they existed when the impugned acts or omissions occurred. Hindsight plays no role in the assessment. Allegations of incompetent representation must be closely scrutinized. Many decisions made by counsel at trial will come to be seen as erroneous in the cold light of a conviction. The reasonableness analysis must proceed upon a “strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance”: R. v. G.D.B. (2000), 2000 SCC 22, 143 C.C.C. (3d) 289 at 298 (S.C.C.). As this court said in R. v. White (1997), 114 C.C.C. (3d) 225 at 247:
An appellate court’s review of trial counsel’s performance should be deferential. … deference is called for because of the broad spectrum of professional judgment that might be considered reasonable. In most cases, even among the most skilled counsel, no two lawyers will defend an accused in the same way. Different defence counsel will use different trial strategies and tactics, different approaches to the examination and cross-examination of witnesses, different styles in opening and closing argument, all of them reasonable. The art of advocacy yields few, if any, absolute rules. It is a highly individualized art. What proves effective for one counsel may be ineffective for another. Most cases, therefore, offer defence counsel a wide scope for the exercise of reasonable skill and judgment. Appellate judges, many of them advocates in their own practices, should not be too quick to conclude that a trial lawyer’s performance was deficient because they would have conducted the defence differently.
Third, the appellant must demonstrate that counsel’s ineffective representation caused a miscarriage of justice. A miscarriage of justice occurs if the appellate court is satisfied that counsel’s ineffective representation undermined the appearance of the fairness of the trial, or the reliability of the verdict. A verdict is rendered unreliable where the appellant demonstrates that had counsel performed in a competent fashion, there is a reasonable possibility that the verdict could have been different.
[51] At para. 121 of Archer, Doherty J.A. referred to the observation of Major J. in R. v.. G.D.B. at 298 that when an allegation of lawyer incompetence is made on appeal the court should first consider whether the alleged incompetence resulted in a miscarriage of justice. If the court is satisfied that there has been no miscarriage of justice, then it is unnecessary to assess the conduct of counsel. As Doherty J.A. aptly put it: “This approach recognizes that it is the appellate court’s function to determine whether a miscarriage of justice has occurred and not to grade counsel’s performance.”
[52] I am satisfied that, even if a case could be made out in respect of these additional allegations of incompetence, there was not a miscarriage of justice in this case. The case against the appellant was overwhelming. The appellant admitted that Ms. J. was under eighteen years of age and that the photos depicted explicit sexual activity. He admitted making the collage and admitted e-mailing it to his friend.
[53] In my view there was no air of reality to any possible defence of artistic merit as submitted by counsel for the appellant in this appeal. Counsel suggested that the collage was a take off of a MasterCard commercial and argued that this gave the collage its artistic merit. I disagree.
[54] Counsel for the appellant relied upon the reasons for judgment of McLachlin C.J.C. in R. v. Sharpe (2001), 2001 SCC 2, 150 C.C.C. (3d) 321 (S.C.C.), in which she discussed the defence of artistic merit. At para. 63 she stated:
I conclude that “artistic merit” should be interpreted as including any expression that may reasonably be viewed as art. Any objectively established artistic value, however small, suffices to support the defence. Simply put, artists, so long as they are producing art, should not fear prosecution under s. 163.1(4).
[55] In my view there is nothing in the collage in this case “that may reasonably be viewed as art”. I do not fault trial counsel for failing to consider this defence.
[56] I need not discuss the other allegations of incompetence raised by the appellant. As I have already stated, I am satisfied that there was no miscarriage of justice in this case. Therefore, in accordance with the observation of Major J. in R. v. G.B.D., I find it unnecessary to consider further the remaining allegations of incompetence.
The Sentence Appeal
[57] The appellant was twenty-three years old at the time of the offence. His father left the family when he was two years old. He has had minimal contact with his father since that time. His mother was married three times after the appellant’s father left. Her last marital partner was described by the appellant as a “wife-beating alcoholic”. The appellant left home and moved into an apartment. He continued at school on student welfare. He attended thirteen different schools. In 2002, the appellant attended Sir Sandford Fleming College for a two-year computer engineering science program. At the time of his sentencing in March 2004 he was self-employed, building custom computers and engaging in computer consulting.
[58] At the time of sentencing the appellant had entered into a stable relationship with Shannon Young and was living at the home of her parents, to whom he paid room and board of $330.00 per month.
[59] The appellant has one previous conviction for break and enter for which he received a suspended sentence and eighteen months probation.
[60] It is clear from the submissions made by Crown counsel and the observations made by the trial judge that the circumstances of this case are vastly different from the typical child pornography case.
[61] The appellant was granted bail pending appeal by Feldman J.A. In her endorsement at para. 12 Feldman J.A. observed:
I note that this is not the more typical situation where an offender is using the Internet as a business or a hobby to view or distribute child pornography. This was a one time, immature and very unfortunate response to a personal life event.
[62] I do not wish to minimize the seriousness of the offences for which the appellant was convicted, nor to discount the horrific impact that the offences have had on Ms. J. That said, I am of the view that a penitentiary term of two years is harsh and excessive. It is an unfit sentence for a young man with a minor criminal record who committed the offences in the circumstances described by Feldman J.A.
[63] While the offences call for a custodial sentence, they do not call for a penitentiary term. In my view the appellant’s sentence should be reduced to time served which was eight months in custody prior to his being granted parole.
[64] I would maintain the probation order. Feldman J.A., on the recommendation of the appellant’s parole officer, altered the restriction on the appellant’s use of computers to permit use for employment purposes, not including self-employment. I would remove the restriction altogether as I see minimal chance of a repetition of offences of this kind.
DISPOSITION
[65] I would dismiss the appeal against conviction. I would grant leave to appeal sentence and reduce the two-year term to time already served. I would not interfere with the probation order except to remove the computer and electronic device restriction.
RELEASED: March 13, 2006 “STG”
“R.P. Armstrong J.A.”
“I agree. S.T. Goudge J.A.”
“I agree. R.A. Blair J.A.”
CORRECTED DECISION:
Corrections made on September 23, 2021: A publication ban warning has been put at the beginning of the copy of the decision that is available on the Court of Appeal’s website. The appellant’s name has been put into initials. A period has been inserted after the first sentence in paragraph 7. A period has also been inserted at the end of the block quotation in paragraph 15. The double quotation mark before the word “how” in the last sentence of para. 35 has been changed to a single quotation mark.