WARNING

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), (3) or (4) or 486.6(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 279.01, 279.02, 279.03, 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.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

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. 2005, c. 32, s. 15.

CITATION: R. v. P.M., 2012 ONCA 162

DATE: 20120316

DOCKET: C52760

COURT OF APPEAL FOR ONTARIO

Rosenberg, MacPherson and Epstein JJ.A.

BETWEEN:

Her Majesty The Queen

Applicant /Appellant

and

P.M.

Respondent

Lisa Joyal and Lisa Henderson, for the appellant

Catriona Verner, for the respondent

Heard: September 7, 2011

On appeal from the sentence imposed by Justice Stephen J. Hunter of the Ontario Court of Justice, dated September 7, 2010, with reasons delivered orally.

Rosenberg J.A.:

[1] This Crown appeal from sentence for serious sexual offences imposed by Hunter J. raises two issues. The first deals with the trial judge’s management of the sentence hearing and whether the trial judge was required to view a disc containing images of child pornography tendered by the Crown as evidence of the commission of several of the offences. The second issue concerns the fitness of a total effective sentence of six years imprisonment for these serious offences.

[2] In my view, the trial judge did not err in refusing to view the disc. I have also not been persuaded that the trial judge’s global sentence of six years imprisonment is manifestly inadequate. Accordingly, while I would grant leave to appeal, I would dismiss the appeal.

THE FACTS

[3] Over a period of approximately 13 months the respondent had forced anal and vaginal intercourse with his daughter, who was then 13 and 14 years of age. There were approximately ten incidents. In her statement to the police, the victim described three of the most recent incidents:

The victim was wearing her school uniform, kneeling on the floor of her bedroom, and looking for something. The respondent entered her room, ordered her onto her bed, removed her clothing, and forced vaginal intercourse on her. Her 8 year old brother was home at the time.

The victim was watching television in the living room one day when the respondent removed her pants and instructed her to get onto her hands and knees. She cried and said “no”, but the respondent forced anal intercourse on her and ejaculated on her back.

The victim stayed home from school one day because she was sick. When the respondent came home during his lunch hour, he gave her “that look” and went to get his digital camera. He then removed her pyjama bottoms and forced sexual intercourse on her.

[4] The offences came to light when the victim told a friend about the abuse. The friend in turn told a school counsellor who notified the police. The police executed a search warrant at the respondent’s home and seized two computers and some photographic equipment. The computers contained 1,837 images of child pornography, including photographs of children posing nude, and engaged in forced sexual activity like fellatio and intercourse. The police also found three videos and five still images of the complainant on the respondent’s computer. The videos show the respondent masturbating and ejaculating on the victim, as well as forcing vaginal and anal intercourse. Throughout two of the videos, the victim is heard to repeatedly beg her father, “Daddy please stop”. The respondent replies, “shut up” and “shut the fuck up”.

[5] The police also found a number of weapons and a box of ammunition. The police seized three long guns that were not stored safely or registered. There is no suggestion that the weapons played any part in the sexual abuse of the victim.

[6] As a result of the complaint from his daughter and the police search, the respondent was charged with a number of sexual and other offences. He pleaded guilty to sexual assault, incest, sexual interference, making child pornography, possession of child pornography and careless storage of a firearm. The trial judge imposed a sentence of five years for the various sexual offences involving the respondent’s daughter, one year consecutive for the child pornography offences and six months concurrent for the firearms offence making a total sentence of six years. He then deducted 22 months as credit for 11 months of pre-sentence custody. Thus, the actual sentence to be served was 50 months imprisonment.

The Circumstances of the Respondent

[7] The respondent is 37 years of age and has no prior criminal record. He has a high school education. After briefly working for his father, he joined the Canadian military in 1996 as an infantryman, reaching the rank of Master Corporal. He has also received training as a construction technician. At the time of sentencing, he was about to be discharged from the military as a result of his convictions. The respondent married his wife in 1999. He had a relationship with her for many years before their marriage and was step-father to his wife’s 18 year-old-son. In addition to the victim, the respondent and his wife also have an 11 year-old son. The respondent’s family have continued to support him. The respondent was held in high regard in the military.

[8] Two psychological reports were presented to the trial judge. One, by Dr. Conroy, was prepared for Veterans Affairs Canada and deals with whether the respondent was suffering from post-traumatic stress disorder as a result of his military service in Bosnia and Afghanistan. The second report, prepared by Dr. Eccles, was ordered by the trial judge and deals with the respondent’s risk of re-offending. A comprehensive pre-sentence report was also before the trial judge.

[9] The respondent comes from a dysfunctional family. His parents were alcoholics and separated when the respondent was 13 years-old. Although the respondent was in an emotionally abusive environment, there was no suggestion that he was sexually abused as a child.

[10] The respondent was deployed to Bosnia for seven months in 2000. This deployment seems to have been uneventful. He was deployed to Afghanistan for six months in 2002 and again for six months in 2008. These were combat missions during which the respondent was subject to constant stress. His 2002 mission was the first Canadian combat mission to suffer casualties in Afghanistan. During the 2008 mission, 23 Canadian soldiers were killed.

[11] While the respondent began to drink as a teenager, his drinking became much heavier after the first Afghanistan mission. He particularly noticed changes after the second mission with deteriorating sleep, nightmares, and periods of dissociation. While in Afghanistan, the respondent was prescribed the anti-malaria drug Mefloquine. He began to experience vivid dreams, a common side-effect of the drug. The respondent’s dreams were of a sexual nature, often including his wife, the victim and another female relative. He used these sexual fantasies to “help him zone out”. He would take more of the medication when he was “stressed out”. He continued to use the drug for the same purpose when he returned to Canada.

[12] Dr. Conroy was satisfied that the respondent met the DSM-IV diagnostic criteria for post traumatic stress disorder with symptoms in the mild to moderate range. He also met the criteria for a major depressive disorder in the moderate range, which was probably related to his inappropriate sexual behaviour and legal difficulties. He had some suicidal thoughts. Dr. Conroy did not believe that either the PTSD or the use of Mefloquine were direct causes of the sexual abuse of the victim. They may, however, have contributed to the commission of the offences. Dr. Conroy recommended that the respondent receive treatment for anger management, PTSD, depression, substance abuse and sexual behaviour.

[13] Dr. Eccles agreed with the diagnosis of PTSD and depression. He found the respondent to represent a low to moderate risk to re-offend, provided he had limited access to children. There were troubling aspects to Dr. Eccles’ findings. The respondent committed the offences in a very cold and callous manner, ignoring the victim’s crying and pleas for him to stop. This lack of sensitivity “continues and is reflected in a profound lack of appreciation for the potential impact of his behaviour on his daughter”. He likely has paedophiliac proclivities that present a long-term management issue. He should not have any further contact with the victim until he has developed a far more realistic perspective on the impact of the abuse on her. Dr. Eccles was of the view that the respondent required treatment in an institutional setting in the federal system before he is released to the community. When released, the respondent should be prohibited from being at any venue where children congregate. While such a condition is not always required in cases of familial abuse, the respondent’s case had aggravating features including the production and possession of child pornography.

The View of the Victim

[14] The victim and her mother both filed letters that were supportive of the respondent. The victim did not want the respondent to go to jail. She noticed a change in him after he returned from Afghanistan and felt he needed to be in hospital. She did not believe she could ever trust him again, or forgive him, but she believed he would not have committed the offences if he wasn’t sick. The victim initially received some counselling after disclosing the abuse. However, she terminated the counselling after only a few sessions.

The Viewing of the Disc

[15] The police had prepared a disc that contained a sampling of the child pornography that had been found on the respondent’s computer as well as the videos the respondent had made while sexually assaulting the victim. Crown counsel sought to have the disc made an exhibit and for the trial judge to view the contents of the disc. Crown counsel’s position was that “the sitting judge needs to actually view and appreciate the images that have been described … and cannot adequately understand the impact they might have without actually viewing them”. The trial judge expressed reluctance to view the disc, in part, because the disc would have to be played in open court. He was also aware that the victim was present in the courtroom. The trial judge was interested in her views since he thought it unlikely that he could, or should, exclude her from the courtroom during the sentence proceedings. The trial judge was later informed that the victim did not want the disc viewed.

[16] Counsel for the respondent opposed the playing of the disc and argued that the trial judge had discretion not to admit the disc into evidence on the basis that the prejudicial effect outweighed the probative value. In the course of submissions, the trial judge placed on the record that he had been counsel for the Children’s Aid Society for 15 years and then sat as a judge for almost 20 years. He had viewed countless videos of a similar nature and worse, such as a three year old child being subjected to full intercourse.

[17] The trial judge ruled that it was not necessary for him to view the video to properly understand and comprehend the impact of the acts of the respondent. He again referred to his experience as CAS counsel and as a trial judge. He took into account that the respondent had admitted his behaviour and, in specific terms, had accepted the facts as alleged by the Crown. In his view, the prejudicial effect of the viewing to the victim far outweighed the probative value to the court “being mindful of the sensitivity of the complainant/victim in this matter and the awareness of the Court of the nature and circumstances of what is in that video”. He concluded as follows:

In my view, it would not serve the ends of justice in the totality of my considerations for me to necessarily view the contents of that CD in open court, even were I to exclude most of the public. I am satisfied that the Court is properly apprised of the nature and circumstances of the impact, bearing in mind, particularly, the reports that have been prepared for pre-sentence purposes and having read both the letters from the victim and her mother as well.

The Trial Judge’s Reasons for Sentence

[18] The trial judge found the respondent’s case perplexing and tragic. What he had done to the victim went far beyond the physical acts, “which in themselves were callous, brutal acts of sexual gratification”. The abuse undermined the victim’s trust in her father. The trial judge continued as follows:

You may be sick and ill, as described by [the victim], your wife, and in some respects the medical reports I have, but you knew what you were doing, you knew who you were doing it to and you continued to do that. It is repulsive and it is something that society abhors and wishes this Court to denunciate in clear and specific terms.

[19] While he had not viewed the disc, the trial judge stated that he fully appreciated the nature of the events and the specific aspects as they related to the victim.

[20] The trial judge was satisfied that the respondent was extremely remorseful. He found that while the PTSD and the malaria medicine did not condone or explain what the respondent did, they were “part of what brought you to where you are today”. The trial judge gave the respondent credit for pleading guilty, thus saving the victim from having to testify, and for having accepted responsibility for these acts from the outset. He noted that the respondent was a low to moderate risk of re-offending. The trial judge recognized that although the respondent was willing to take treatment, there were clear impediments to that treatment especially because of his lack of insight into the impact of the abuse on the victim.

ISSUES

[21] The Crown raises the following issues:

(1) The trial judge erred in principle in failing to watch the child pornography exhibit

(2) The trial judge failed to appreciate the overall gravity of the multiple offences

(3) The trial judge gave undue emphasis to the mitigating circumstances

(4) The total sentence of six years imprisonment was unfit

The Child Pornography Exhibit

[22] The Crown’s principal submission on this appeal was that the trial judge erred in refusing to view the disc containing the child pornography and the videos of the appellant sexually assaulting the victim. Crown counsel argued that, having admitted the disc as an exhibit, the trial judge was bound to view that exhibit as he would any other piece of real evidence. Alternatively, if the trial judge did not admit the disc as an exhibit then he erred in failing to do so.

[23] An issue arose at the hearing of the appeal as to whether the trial judge had in fact admitted the disc as an exhibit. In my view, he marked the disc for identification but did not admit the disc as evidence. Just prior to the excerpts from the trial judge’s reasons set out in paragraph 17 of this decision, the trial judge said the following: “I will file it and give it an exhibit number for identification, should it become important at a later date in another court. I do not intend to view it.” Then, in his reasons the trial judge indicated that he found that the prejudicial effect of admitting the evidence outweighed its probative value. This is the language of exclusion of evidence.

[24] Since the trial judge refused to admit the disc as evidence, the Crown appeal raises two questions. First, whether the trial judge has the discretion to refuse to admit relevant evidence at a sentence hearing; and second, if the judge does have such discretion, whether it was properly exercised in this case.

[25] Section 723 of the Criminal Code provides that before determining the sentence, the court “shall” give the prosecutor and the offender the opportunity to make submissions with respect to any facts relevant to the sentence imposed, and “shall” hear any relevant evidence presented by the prosecutor and the offender. Further, s. 726.1 provides that in determining the sentence, a court “shall” consider any relevant evidence placed before it. Nevertheless, in my view, a trial judge at sentencing should exclude otherwise relevant evidence proffered by the Crown where the prejudicial effect of the evidence outweighs its probative value.

[26] In R. v. Angelillo, 2006 SCC 55, [2006] 2 S.C.R. 728 at para. 32, Charron J., speaking for the majority of the court, had to consider the admissibility at the sentence hearing of evidence showing the commission of other offences than those for which the offender was being sentenced. After referring to several sections of the Criminal Code, including ss. 723 and 726.1, Charron J. confirmed that at the sentence hearing the trial judge “can and must exclude otherwise relevant evidence if its prejudicial effect outweighs its probative value such that the offender's right to a fair trial is jeopardized”.

[27] In deciding whether the prejudicial effect of the prosecution evidence outweighs its probative value the judge must consider any number of relevant factors. The weight to be accorded the various factors is primarily a matter for the sentence judge and thus the judge’s decision is entitled to deference. This deference is part of the broader deference owed to trial judges in managing the sentence hearing and determining the sentence. The Supreme Court of Canada has repeatedly recognized that appellate courts owe considerable deference to the trial judge’s decision as to the quantum and type of sentence. For example, in R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227 at para. 46:

An appellate court should not be given free reign to modify a sentencing order simply because it feels that a different order ought to have been made. The formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentence should only be made if the court of appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearly unreasonable.

[28] In R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, Lamer C.J. explained the functional justification for this deference, even where there has not been a full trial because the offender has pled guilty. In particular he noted, at para. 91, that:

A sentencing judge still enjoys a position of advantage over an appellate judge in being able to directly assess the sentencing submissions of both the Crown and the offender. A sentencing judge also possesses the unique qualifications of experience and judgment from having served on the front lines of our criminal justice system.

[29] In my view, this functional justification applies as much to the conduct of the hearing, including the decision as to whether the prejudicial effect of the proposed evidence outweighs its probative value, as it does to the ultimate decision of quantum. The trial judge, by reason of “experience and judgment from having served on the front lines of our criminal justice system”, is in the best position to decide what evidence is required to determine a fit sentence and to decide how, and in what manner, the evidence should be received. It is hardly for this court to decide how the trial judge presiding over a busy trial court should manage sentence hearings. Provided the judge exercises the discretion reasonably and gives the parties the opportunity to fully present their positions, this court ought not interfere.

[30] That brings me to the second issue. Ms. Joyal, for the appellant Crown, argues that the prejudicial effect did not outweigh the probative value of the evidence. In finding to the contrary, the trial judge took into account irrelevant considerations and failed to appreciate the true probative value of the proposed evidence.

[31] In my view, it was open to the trial judge to find that the prejudicial effect of the disc outweighed its probative value. There is no doubt that the material on the disc was relevant. With respect to the child pornography charges, the disc contained copies of the material that constituted the conduct that was the subject of the charges. As for the sexual offences, the disc contained direct evidence of the commission of the offences. Thus, I agree that ordinarily the judge should view this kind of evidence if asked to do so. This was the view of the Alberta Court of Appeal in the Memorandum of Judgment in R. v. Hunt, 2002 ABCA 155, 166 C.C.C. (3d) 392 at para. 16:

Ordinarily, a sentencing judge would be expected to review photographs that depict the crime. By definition, such photographs are relevant. In this case, the photographs do not depict the crime - they are the crime. That is, the actus reus of this offence is making, printing, publishing, or possessing photographic representations of someone under eighteen years engaged in explicit sexual activity. Thus, they are relevant. Being relevant, they should have been reviewed by the sentencing judge unless some other exclusionary rule applied. Counsel for the respondent did not suggest the prejudicial effect outweighed the probative value. We doubt such an argument could be made when dealing with the actus reus of the crime. So the argument must come down to some sort of estoppel against the Crown.

[32] In Hunt, the offender had argued that the images should not be viewed because the parties had entered into an agreed statement of facts and the Crown was barred from going beyond that statement of facts. The court considered that argument and found that there was no agreement that prevented the Crown from entering the images into evidence at the sentence hearing.

[33] I also agree with the views expressed by Molloy J. in R. v. Kwok, 2007 CanLII 2942 (ON SC), [2007] O.J. No. 457 regarding the need for the court to understand the nature of the offence committed and the contribution that actually viewing the material can lend to that function. As she said at para. 48: “While the description in words of such disturbing images is shocking, nobody can fully appreciate the sickening horror of such pornography without actually looking at it.”

[34] In this case, the trial judge was presented with a difficult and troubling issue. The images copied on to the disc contained video of the victim actually being assaulted by the offender. The victim was present in court and the trial judge was of the view that she had the right to be present during the proceedings. The judge was also of the view that the offender’s right to be present during the proceedings required that if the judge was to view the disc he would have to do so in the offender’s presence and, it followed, in the victim’s presence. It would have been open to the judge to take steps to limit the exposure of the child pornography, including the images of the assaults on the complainant, to the public. Even so, the viewing of the disc showing the sexual assaults of the victim could cause additional trauma to the victim. The judge was sensitive to this fact and this was a proper consideration.

[35] The judge also had to consider the probative value of the proposed evidence. There was no dispute about the facts. The contents of the disc had been described in detail. The judge had extensive experience with child pornography in his practice and then as a judge. He was aware of what the disc contained. In the words of Molloy J., because of this experience he could “fully appreciate the sickening horror of such pornography”.

[36] The appellant makes much of the fact that the trial judge sought the views of the victim as to whether he should look at the contents of the disc. Counsel argues that the trial judge should not have let the views of the victim determine the decision. But this is not what occurred. While the trial judge sought the views of the victim, he made it abundantly clear that it was his decision not hers. It was not wrong for him to take those views into account. He did not defer to her wishes. The courts are becoming increasingly more sensitive not just to the impact of crimes upon the victim, but of the criminal process itself. It is not wrong for the trial judge to involve the victim in the process, provided that involvement does not interfere with the orderly presentation of the case, or unfairly interfere with the rights of the parties to a fair hearing.

[37] I have not been persuaded that there is reason to interfere with the trial judge’s view that the prejudicial effect of the evidence outweighed its probative value in the unusual circumstances of this case. I am also satisfied that the Crown was able to adequately present its case at the sentence hearing. I would not give effect to the Crown’s principal ground of appeal. I now turn to the grounds of appeal that concern the fitness of the sentence imposed.

The trial judge failed to appreciate the overall gravity of the multiple offences

[38] The appellant’s submission on this ground of appeal is that the trial judge failed to appreciate the gravity of the multiple offences. The main point made by the appellant is that the respondent not only sexually assaulted the victim; he made videos of the offences. This distinct offence of making child pornography was extremely serious and, on its own, required a denunciatory sentence. The trial judge, however, was well aware of this aspect of the case. Crown counsel at trial made this point repeatedly in her submissions and the trial judge indicated his understanding of this position during those submissions. In response to the Crown’s submissions, the trial judge expressed the opinion that the respondent’s behaviour was “extremely callous”. However, the trial judge also understood that since it was the same victim for the sexual offences and the making of child pornography, the sentence had to be “a global one”.

[39] I agree with that characterization of the issue. The making of child pornography was both an offence on its own, and a serious aggravating factor of the sexual offences. In spite of this, the respondent could not be punished twice for the same act. See R. v. Woodward, 2011 ONCA 610 at para. 48. The trial judge faced the problem of creating a global sentence that properly reflected the respondent’s high moral blameworthiness and the nature of the various offences he committed, as well as their aggravating features. The trial judge understood this; whether he arrived at a fit sentence is another question which I turn to below.

The trial judge gave undue emphasis to the mitigating circumstances

[40] The appellant submits that the trial judge gave undue emphasis to various mitigating circumstances. Among other things, the appellant submits that the trial judge misapprehended Dr. Eccles evidence as to the respondent’s risk to re-offend and the diagnosis of paedophilia, misunderstood the evidence of the role played by the respondent’s PTSD and use of malaria medication, and gave undue weight to the guilty plea as a mitigating circumstance. These submissions are not borne out by the record.

[41] The trial judge gave very careful attention to the aggravating and mitigating circumstances. He was well aware of the nature of Dr. Eccles’ opinion and during submissions demonstrated that the diagnosis of low to moderate risk to re-offend was premised on the respondent having limited access to children. The judge also appreciated the role played by PTSD and the malaria medication. As the trial judge said in his reasons: “They do not condone or explain your activities and perhaps they are a crutch that you cling to[,] to try and explain your behaviour, but they are still, nonetheless, part of what brought you to where you are today.” I agree with that characterization. It is fully borne out by the record, and especially the reports of Drs. Eccles and Conroy.

[42] The trial judge was entitled to consider the mitigating effect of the guilty plea. It is true that the case against the respondent was formidable and perhaps unanswerable. The guilty plea was still a factor to be taken into account. By his plea, the respondent spared the complainant having to testify at a preliminary hearing or trial. He acknowledged his responsibility for his conduct, and expressed great remorse. These are all appropriate factors to take into account.

The total sentence of six years imprisonment was unfit

[43] In my view, this is the real issue in this difficult case. Before turning directly to this issue I will briefly discuss two decisions from this court: R. v. B. (J.), [1990] O.J. No. 36 and R. v. D. (D.) (2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788.

[44] In B. (J.), this court held that where a parent commits an offence of sexual abuse of a child in his care, and that abuse includes sexual intercourse, the normal disposition should be a penitentiary sentence in the range of three to five years imprisonment. The court held as follows:

The decisions of provincial appellate courts establish that, except in unusual circumstances, a penitentiary sentence is called for in all cases of sexual abuse of children to whom the convicted person stands in loco parentis if the abuse involves sexual intercourse. Such sentences reflect society's denunciation of this abhorrent conduct and the breach of trust reposed on parents or guardians of children. Both counsel agreed that the usual range of sentences for this type of offence is from three to five years. The length of sentence within the range of three to five years depends on a number of factors. These include the age of the victim, the duration and frequency of the sexual assaults, the criminal record of the offender, the effects on the victim and the presence or absence of collateral violence or remorse.

[45] B. (J.) was decided in 1990. Blair J.A. speaking for the court referred to decisions from this court and appellate courts of other provinces, especially the Alberta Court of Appeal. A review of those cases supports the three to five year range for incest, even where the abuse has been prolonged and even where the offences involved more than one child. B. (J.) has been repeatedly followed by this court. See, R. v. H. (D.A.) (2003), 2003 CanLII 48216 (ON CA), 171 C.C.C. (3d) 309 at para. 33; R. v. M. (W.W.) (2006), 2006 CanLII 3262 (ON CA), 205 C.C.C. (3d) 410 at para. 413; R. v. G.A.G. (2006), 206 O.A.C. 134 at para. 13; R. v. M.G., 2007 ONCA 837. However, this court’s decision in B. (J.) must now also be read with the decision in D. (D.). While making it clear that he was not setting out fixed and inflexible guidelines, Moldaver J.A., speaking for the court, said this in D. (D.), at para. 44:

To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted.

[46] Each case will, of course, turn on its own facts and sentencing is a highly individualized exercise. However, the court signalled in D. (D.) that the sexual abuse of a child will attract lengthy penitentiary sentences. In my view, where a father has committed repeated acts of incest with his daughter over many months, as in this case, it will be highly unusual for the court to impose a penitentiary sentence of less than five to six years. Such a range is more consistent with this court’s decision in D. (D.) and is also more consistent with amendments to the Criminal Code since B. (J.) was decided. The Criminal Code now provides that the primary objectives of sentencing are deterrence and denunciation where the victim of sexual abuse is a child under the age of 18 years. The Criminal Code also explicitly provides that abuse of a child under 18 years and abuse of trust or authority in relation to the victim are aggravating factors:

718.01 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.

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim

shall be deemed to be aggravating circumstances,

[47] In this case, the trial judge imposed concurrent sentences of five years imprisonment for the sexual offences of incest, sexual interference and sexual assault committed against the respondent’s daughter. Standing on its own, the sentence of five years imprisonment was a lenient one, and at the bottom end of the range. That said, I have not been persuaded that the sentence was unfit having regard to the several mitigating circumstances including the lack of prior criminal record, the guilty pleas, the remorse, the commitment to treatment and the respondent’s mental illness. Since the respondent was separately charged with making child pornography and to avoid “double-counting”, in considering the sentence for the sexual offences I have not taken into account what would otherwise be the serious aggravating circumstance that the respondent filmed the abuse of his daughter.

[48] I turn now to the fitness of the sentence for making child pornography and possession of child pornography. In my view, the sentence of one year imprisonment consecutive for those offences, standing on its own would have been inadequate. The indictable offence of making child pornography alone carries a minimum sentence of one year imprisonment, pursuant to s. 163.1(2)(a) of the Criminal Code. The videos are extremely disturbing. They did not just show fondling and display of genital organs. The videos show the respondent masturbating and ejaculating on the victim, as well as forcing vaginal and anal intercourse. The cruelty and callousness of the respondent’s conduct in making and keeping these videos is self-evident.

[49] The possession offence was also disturbing. The respondent was in possession of almost two thousand images of child pornography, including photographs of children engaged in forced sexual activity like fellatio and intercourse. The two factors in the respondent’s favour are that there is no suggestion that he intended to distribute the images of his daughter to others or that he was involved in distributing the other child pornography.

[50] The approach to crafting a sentence in this kind of case, which involves sexual assault of the offender’s child, and making of child pornography involving that child, is set out by LeBel J. in R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 31:

Viewed as a whole, the crime was complex. The offence of sexual assault was closely connected with three other offences of making, possessing and distributing child pornography that are subject to express sanctions under the Criminal Code. Each aspect of the offender's conduct could be considered only in light of all these charges, viewed as a whole. As Judge Wilhelmy concluded, the global sentence was the crucial factor in determining the sentence in the case at bar.

[51] Further, as Feldman J.A. observed in R. v. F. (D.G.), 2010 ONCA 27, 98 O.R. (3d) 241, at para. 27: “Although the totality principle must always be considered when sentencing for multiple offences, the sentence imposed cannot thereby become inadequate to properly recognize the overall gravity of this conduct that victimizes children in the most horrendous way.”The trial judge in this case was required to consider the totality principle in crafting the appropriate global sentence. This was a difficult case. The trial judge was sentencing a man who had become mentally ill while in the service of his country. Although the post-traumatic stress disorder did not cause the respondent to commit these offences, it was an inescapable piece of the context that had to be considered. The trial judge also had before him the views of the victim and her mother asking for leniency for the respondent. Crafting a fit global sentence was a difficult and unenviable task.

[52] In considering whether there is a basis for appellate intervention in this case it is important to return to the standard of review. I have already referred to the importance of deference in relation to the management of the sentencing hearing itself. This deference finds its greatest expression when considering the length of sentence and the manner in which the sentence will be served, concurrently or consecutively. The Supreme Court of Canada has described the standard of review that this court is required to apply in terms such as the following. From M. (C.A.), at para. 91:

A sentencing judge also possesses the unique qualifications of experience and judgment from having served on the front lines of our criminal justice system. Perhaps most importantly, the sentencing judge will normally preside near or within the community which has suffered the consequences of the offender's crime. As such, the sentencing judge will have a strong sense of the particular blend of sentencing goals that will be "just and appropriate" for the protection of that community. The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. The discretion of a sentencing judge should thus not be interfered with lightly.

[53] Again, from M. (C.A.), at para. 92:

As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred. For these reasons, consistent with the general standard of review we articulated in Shropshire, I believe that a court of appeal should only intervene to minimize the disparity of sentences where the sentence imposed by the trial judge is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes. [Emphasis added.]

[54] From R. v. L.M. at para. 68:

On an appeal by the Crown, it will thus not suffice for the Court of Appeal to conclude that the impugned sentence is lenient; nor, on an appeal by the accused, to find that the sentence is severe. Rather, a sentence may be varied only if it is found to be too lenient or too severe—that is to say, “clearly excessive or inadequate”; and therefore unfit (Shropshire, at para. 48).

[55] From R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290, at para. 244:

One function of appellate courts is to minimize disparity of sentences in cases involving similar offences and similar offenders; see M. (C.A.), supra, at para. 92, and McDonnell, supra, at para. 16, per Sopinka J. In carrying out this function, appellate courts may fix ranges for particular categories of offences as guidelines for lower courts. However, in attempting to achieve uniformity, appellate courts must not interfere with sentencing judges' duty to consider all relevant circumstances in sentencing; see McDonnell, supra, at para. 43, per Sopinka J.; and at para. 66, per McLachlin J. In Archibald, [R. v. Archibald (1992), 1992 CanLII 834 (BC CA), 15 B.C.A.C. 301] McEachern C.J. clearly stated, at p. 304, that it would be wrong to assume that there is any "precise range that will apply to every case". In my opinion, this qualification reveals that the Court of Appeal in Archibald correctly intended for trial judges to balance uniformity in sentencing with their duty to consider the circumstances of the particular case. [Emphasis added.]

[56] And, finally, as to whether sentences should be consecutive or concurrent, R. v. McDonnell, 1997 CanLII 389 (SCC), [1997] 1 S.C.R. 948, at para. 46:

In my opinion, the decision to order concurrent or consecutive sentences should be treated with the same deference owed by appellate courts to sentencing judges concerning the length of sentences ordered. The rationale for deference with respect to the length of sentence, clearly stated in both Shropshire and M. (C.A.), applies equally to the decision to order concurrent or consecutive sentences. In both setting duration and the type of sentence, the sentencing judge exercises his or her discretion based on his or her first-hand knowledge of the case; it is not for an appellate court to intervene absent an error in principle, unless the sentencing judge ignored factors or imposed a sentence which, considered in its entirety, is demonstrably unfit. The Court of Appeal in the present case failed to raise a legitimate reason to alter the order of concurrent sentences made by the sentencing judge; the court simply disagreed with the result of the sentencing judge's exercise of discretion, which is insufficient to interfere. [Emphasis added.]

[57] A substantial argument could be mounted that, on their own, the concurrent one year sentences for making child pornography and possession of child pornography were extremely lenient and that, in addition, one sentence might well have been made consecutive to the other. However, when combined with the fact that they were consecutive to the five year sentence imposed for the sexual offences, it is my view that the high threshold for appellate intervention has not been met. The global sentence of six years was lenient but it was not clearly inadequate given the highly unusual circumstances, particularly the respondent’s mental state. The respondent’s mental state tempers the otherwise significant moral blameworthiness of the respondent's conduct.

DISPOSITION

[58] Accordingly, while I would grant leave to appeal, I would dismiss the appeal.

Signed: “M. Rosenberg J.A.”

“I agree J. C. MacPherson J.A.”

Epstein J.A. (Dissenting):

I. INTRODUCTION

[59] This appeal concerns the manner in which the trial judge, in the course of a sentencing hearing, dealt with evidence proffered by the Crown that was relevant to the nature and gravity of the offences committed. The offender had entered guilty pleas to the offences of incest, sexual assault, sexual interference, production of child pornography, possession of child pornography, and unsafe storage of firearms. The evidence in issue is a disc the police prepared containing a sampling of the 1,845 child pornography images and videos that were found on the offender’s computers, including the three videos and five images that he had made while sexually assaulting his young daughter.

[60] Without viewing the contents of the disc, the trial judge refused to admit it as an exhibit tendered by the Crown, reasoning that its probative value was overborne by its prejudicial effect. In making this ruling and then ultimately in determining a fit sentence, the trial judge relied upon his professional experience of viewing other images and videos depicting sexual abuse of children, together with the facts read into the record in support of the guilty plea, for the purposes of gaining the appreciation of the nature and gravity of the sexual offences committed by the respondent. It was against this background that the trial judge arrived at a global sentence of six years’ imprisonment.

[61] I have had the benefit of reading the reasons of my colleague, who would grant the Crown leave to appeal the sentence but dismiss the appeal primarily on the ground that this court should defer to the trial judge’s treatment of the disc and his determination of a fit sentence.

[62] On this record, I come to a different conclusion. Decisions pertaining to the admission of evidence should normally be left to the trial judge, but appellate intervention is both warranted and required where – as here – the decision is tainted by legal error. In my view, the trial judge erred by relying on his previous professional experience – that of being exposed to images and videos of child pornography – in determining the probative value of the disc, by failing to view the disc to determine its admissibility, and in his consideration of prejudicial effect.

[63] Having viewed the disc, I am of the opinion that it should have been admitted as an exhibit. It offers considerable value in terms of the appreciation of the nature and gravity of the sexual offences. This value was not offset by any relevant prejudice.

[64] As a result of these errors, the trial judge arrived at a sentence without the benefit of evidence relevant to the central issue of the gravity of the sexual offences. It follows that the trial judge’s determination of sentence does not attract the usual deference. In my view, taking into consideration the degree of moral culpability of the respondent together with the other sentencing principles set out in s. 718 of the Criminal Code, the appropriate global sentence in this case is nine years’ imprisonment.

[65] I would add that, quite apart from the errors I have identified in relation to the disc, I am of the view that the sentence of six years’ imprisonment imposed by the trial judge is manifestly unfit.

II. ANALYSIS

[66] As indicated by my colleague, the Crown raised four distinct issues in this appeal. The first relates to the failure of the sentencing judge to admit and view the disc containing child pornography including the offender’s audio and visual recording of his sexual abuse of his daughter. I deal with this issue first. The Crown’s remaining issues relate to the determination of sentence, which I deal with in the second part of my analysis.

(1) Admission of the Disc

[67] In seeking to have the disc admitted, the trial Crown, relying on R. v. Kwok, (2007), 72 W.C.B. (2d) 533, 2007 CanLII 2942, argued that it was highly relevant to the trial judge’s appreciation of the nature and gravity of the offences. Counsel for the offender agreed that the disc was relevant, but resisted its admission on the basis that its probative value was outweighed by its prejudicial effect. He argued that with the admitted facts on the guilty plea, the trial judge had “a clear sense” of the offender’s moral culpability, and viewing the disc would be “grossly inflammatory” and unnecessary.

(i) Probative Value and Prejudicial Effect of Evidence in the Context of a Sentencing Hearing

[68] In R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at para. 18, Sopinka J., writing for the court, concisely outlined the reception of relevant evidence, and the exclusion of it based on prejudicial effect:

Relevance is a threshold requirement for the admission of expert evidence as with all other evidence. Relevance is a matter to be decided by a judge as a question of law. Although prima facie admissible if so related to a fact in issue that it tends to establish it, that does not end the inquiry. This merely determines the logical relevance of the evidence. Other considerations enter into the decision as to admissibility. This further inquiry may be described as a cost benefit analysis, that is "whether its value is worth what it costs." See McCormick on Evidence (3rd ed. 1984), at p. 544. Cost in this context is not used in its traditional economic sense but rather in terms of its impact on the trial process. Evidence that is otherwise logically relevant may be excluded on this basis, if its probative value is overborne by its prejudicial effect, if it involves an inordinate amount of time which is not commensurate with its value or if it is misleading in the sense that its effect on the trier of fact, particularly a jury, is out of proportion to its reliability. While frequently considered as an aspect of legal relevance, the exclusion of logically relevant evidence on these grounds is more properly regarded as a general exclusionary rule (see Morris v.The Queen, 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190). Whether it is treated as an aspect of relevance or an exclusionary rule, the effect is the same.

[69] The explanation in Mohan of the weighing of probative value against any prejudicial effect was in the context of expert evidence proffered at trial. The concern was that such evidence would be improperly used by the trier of fact, perhaps by the jury’s being unduly impressed by the expert’s credentials. It is primarily in the trial context where impermissible reasoning may lead to unfairness that the probative value and prejudicial effect test is used.

[70] As I will explain, sentencing hearings are different. In my view, the differences call for a modification of the general exclusionary rule such that, if relevant to the admissibility analysis at all, the potential prejudice of the evidence in issue should be given less weight.

[71] As my colleague notes, the Supreme Court, in R. v. Angelillo, 2006 SCC 55, [2006] 2 S.C.R. 728, does refer to the discretion to exclude evidence on the basis that its prejudicial effect outweighs its probative value in a sentencing hearing. However, it is important to recognize that in Angelillo the court was considering the particular issue of whether extrinsic evidence of other offences (uncharged or unproven) allegedly committed by the offender is admissible against him in a sentencing proceeding. Writing for the majority of the court, and responding to the minority’s view that such extrinsic evidence would not ordinarily be admissible, Charron J., in obiter, was emphasizing the procedural protections offenders have in a sentencing hearing (at paras. 31-32):

… There are a number of other principles that assure the offender's right to a fair trial. I will explain this.

If the extrinsic evidence is contested, the prosecution must prove it. Since the facts in question will doubtless be aggravating facts, they must be proved beyond a reasonable doubt (s. 724(3)(e)). The court can sentence the offender only for the offence of which he or she has been convicted, and the sentence must be proportionate to the gravity of that offence. In addition, the judge can and must exclude otherwise relevant evidence if its prejudicial effect outweighs its probative value such that the offender's right to a fair trial is jeopardized. … [Emphasis added.]

[72] I make three observations concerning the import of Angelillo. First, Charron J.’s reference to the general exclusionary rule was in the context of the particular circumstances present in that case where extrinsic evidence of as yet unproven unrelated offences is tendered against the offender. Second, it is clear that the focus was on prejudice to the offender, and more specifically, to the offender’s right to a fair sentencing proceeding. Third, at para. 21, Charron J. emphasized that all prior case law must be read in the light of the sentencing provisions contained in Part XXIII of the Criminal Code. This, in my view, includes the legislated focus on relevance in ss. 723 and 726.1 of the Code, which specifically address the treatment of evidence in the context of a sentencing hearing. Section 723 provides that before determining a sentence, the court “shall hear any relevant evidence presented by the prosecutor or offender”, and s. 726.1 directs that “[i]n determining a fit sentence, a court shall consider any relevant information placed before it” [Emphases added].

[73] This wording of these provisions demonstrates that at a sentencing hearing, the emphasis is on the relevance of proffered evidence, a point Charron J. appreciated in Angelilloat para. 28, where she said:

Section 723 requires the court to give the prosecutor and the defence an opportunity to make submissions with respect to any facts relevant to the sentence to be imposed and to hear any evidence they see fit to submit. Section 726.1 clearly states that all this information must be considered in determining the sentence. [Emphasis added].

These legislative provisions support the proposition that for the purposes of admitting evidence during a sentencing hearing, the dominant factor is the relevance of the evidence.

[74] Parliament’s specific focus in this respect is consistent with the unique context of sentencing. The dominant concern addressed by the weighing of prejudice against probative value for the purposes of determining admissibility during the trial itself is that the evidence in issue may lead to impermissible reasoning, either as a result of the evidence being used for an improper purpose or having the potential to inflame the trier of fact – either of which has the potential of rendering the accused’s trial unfair. At the sentencing stage, the trier of fact is always a judge and the issue is no longer guilt but the determination of a fit sentence – a determination for which the trial judge should have as much relevant information as possible; see R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487, at para. 30.

[75] It is against this background that I turn to the trial judge’s approach to the admissibility of the disc in this case.

(ii) The Trial Judge’s Approach to the Disc

[76] In my view, the trial judge committed the following errors in principle in his analysis of the admissibility of the disc. First, without viewing the contents of the disc, the trial judge determined that it lacked probative value. With reference to the fact that his professional experience had exposed him to images of similar conduct, he concluded that viewing the contents was not necessary in order for him to appreciate the gravity of the sexual offences Second, in considering the potential prejudice associated with admission of the proffered evidence, the trial judge relied on the effect that his viewing of the disc would potentially have on the victim.

Probative Value - Reliance on Previous Experience in Place of Viewing the Contents of the Disc

[77] For the reasons that follow, I am of the view that the trial judge erred in law by failing to view the disc’s contents. Without having done so, he was not in a position to assess its probative value adequately.

[78] It was not disputed that the contents of the disc were relevant to the issue of the gravity of the sexual offences.

[79] Of course, in understanding the moral culpability of the offender, the trial judge was entitled to rely on the agreed-upon facts that were read into the record to support the guilty pleas, as well as the respondent’s implied admission of all of the essential elements of the offences admitted by the pleas: see R. v. Gardiner (1982), 1982 CanLII 30 (SCC), 68 C.C.C. (2d) 477, at p. 514. However, as is most often the case, these facts contain little more than an outline of the accused’s conduct that comprised the basic elements of the offences. As the content of these facts – what they describe and what they do not describe – are important to my reasoning, I set them out in full:

[The victim] has a date of birth of ... 1995 and is the victim in this matter. [The offender] is her father. In October of 2009, [the victim] disclosed to a friend that her father had been sexually abusing her. This information was passed on to the Military Police and an investigation was commenced. [The victim] was interviewed and provided the following information: Her father had been sexually abusing her for a few years. She believes there were approximately 10 occurrences, all occurred in their residence. On each occurrence there would be either vaginal or anal intercourse. The abuse commenced prior to his deployment to Afghanistan in the Fall of 2008 and it happened again when he returned for Christmas leave 2008 to 2009. [The victim] described two most recent occurrences, actually three I should say. In or about September 2009 [the victim] had been in her bedroom. She was in her school uniform kneeling on the floor looking for something. [The offender] entered the room, instructed her to get onto her bed. He removed her clothing and had vaginal intercourse with her. [The victim]'s eight year old brother was present in the residence but it is believed that he did not witness this. She also described an occasion when she was in the living room watching television. [The offender] came in, removed her bottoms and instructed her to get onto her hands and knees. She cried and said no. None the less, he engaged in anal intercourse and ultimately ejaculated on her back. Just prior to her disclosure, [the victim] describes, sorry, [the victim] describes another incident that occurred prior to her disclosure. She was at home sick from school. [The offender] came home during the lunch hour. She was watching television on the couch. He gave her, she describes, that look, and went upstairs to get his digital camera. When he returned to the living room, [the offender] removed the pyjama bottoms that [the victim] was wearing. He engaged in sexual intercourse with her. [The victim] advised that [the offender] took photographs of the sexual act. She also advised that this was not the first time he photographed his sexual acts with her. On October 21, 2009, a search warrant was executed at the [family’s] residence. Two computers and some photographic equipment were seized. Investigators also found a number of weapons and a box of ammunition. [The offender] did not have any weapons registered to him. As a result, three long guns were seized as they were not stored safely and were not registered. The two computers were analyzed. A lap top used by [the offender] was analyzed. 1,794 images of child pornography were found to be on that computer. They included photographs of children posing nude, engaging in sexual acts of fellatio and intercourse and forced sexual activity. Also seized was a Dell desk top. On that, 43 images of child pornography were discovered. They also included pictures of children posing nude engaging in sexual acts of fellatio, intercourse and forced sexual activity. Also on the Dell desktop in a separate directory were three videos and five still images of [the victim] created with a Fuji camera. It was the same Fuji camera that was also seized pursuant to the search warrant. The videos show [the offender] engaging in sexual activity with [the victim]. They show vaginal intercourse and self-masturbation by [the offender] with the – ultimately with ejaculation on [the victim]. Throughout two of the videos you can hear audio. You can hear [the victim] saying ‘Daddy please stop’ repeatedly in both videos. In one, [the offender] says ‘shut up’ to [the victim] and in the other you can hear [the offender] say ‘shut the fuck up’ to [the victim].

[80] It is worth noting that the guilty plea proceeding that took place on July 7, 2010, was relatively brief and was adjourned for the purpose of obtaining a pre-sentence report and a psychological assessment. The matter resumed on September 7, 2010, and after the trial judge acknowledged receipt of the reports, the Crown requested that the disc be admitted as an exhibit and submitted that it was the trial judge’s duty to view its contents. In my view, it is a reasonable inference that the Crown intended to supplement the limited description of the offences that was read into the record two months previously by the proffered evidence contained on this disc. It is also reasonable to infer that had the Crown known the disc would not be admitted, the Crown would have provided a more detailed description of the offences for the record.

[81] In concluding that he did not have to review the contents of the disc in order to assess its probative value, the trial judge reasoned that he could look to his experience viewing other crimes committed by other offenders to gain an appreciation of the nature and gravity of the sexual offences. His references to the value of this experience include the following exchange with the Crown:

In my view, despite the legal concerns that might flow from this decision, I am satisfied that it is not necessary for me to view the video to properly understand and comprehend the impact of the acts of the accused, specifically, as they relate to his daughter in this matter.

As I said earlier, having been counsel for the Children’s Aid Society for 15 years and having been on this bench for almost 20 years, I have been involved and presided over, unfortunately, countless cases of child pornography and other similar cases. I have seen and been exposed to significant examples of the type of behaviour here.

[82] The trial judge reiterated this position in his reasons for sentence:

I comment on not watching the video, because I may not be the last one to speak on these matters, only to say that I am well aware of the graphic nature of events as they unfolded here, have seen the child pornography repeatedly, both in video and photograph form and believe I fully appreciate the nature of those events and the specific aspects as they relate to [the victim].

[83] In my view, the assessment of the nature of the offender’s specific offences is an adjudicative fact central to the determination of the sentence and should not be determined by reaching outside the record and into one judge’s prior professional experience. This is impermissible and amounts to an error in principle: see R. v. Perkins, 2007 ONCA 585, 223 C.C.C. (3d) 289.

[84] Other difficulties flow from this approach. Significantly, the determination of the admissibility of otherwise relevant evidence could be affected by who the trial judge is and the nature of his or her experience adding considerable uncertainty to counsel’s preparation for the sentencing hearing.

[85] The trial judge’s approach to child pornography evidence might have merit, if, for example, the case only related to a charge of possession of a collection of child pornography images, the nature of which was detailed for the record and the trial judge had experience viewing such collections. However, in this case the impugned evidence included direct audio and visual evidence of the actus reus of the sexual abuse perpetrated by the offender as well as a large inventory of child pornography images that were not described in the facts read into the record at the time the respondent pleaded guilty to the offences. But that was not the situation here.

[86] As I viewed the disc, it became clear to me that the visual and audio components of its contents disclose aspects of the depravity of the respondent’s conduct and the horrific abuse suffered by his young victim that are not conveyed by the agreed-upon facts. I will identify but one – that the intercourse was unprotected. There are a number of others, some that contribute more significantly to the sentencing analysis. The point is that the contents of the disc are highly probative to the central issue before the judge; namely, the moral culpability of the respondent.

[87] Another judge may have made different observations about this evidence and in another comparable case there may be significantly different things to observe from such evidence. The point is that in order to determine whether relevant evidence should be admitted, the trial judge needs to know what it is that he or she is being asked to admit. This trial judge did not have that knowledge.

[88] Here, I am reminded of the familiar quotation from Plato’s Apology, attributed to Socrates: “At any rate it seems I am wiser than he is to this small extent, that I do not think I know what I do not know.”

[89] Without viewing the disc, the trial judge did not know what it contained. The read-in facts and the trial judge’s previous professional experience did little to inform the trial judge of the value of this particular piece of evidence. By failing to review the disc to determine whether it should be admitted, the trial judge fell into error.

Prejudicial Effect – Reliance on the Effect of Viewing the Disc on the Victim

[90] In the opening section of my analysis, I question the extent to which the potential prejudice of proffered evidence relevant to the determination of a fit sentence should be given weight. However, regardless of the view taken of that issue, the trial judge, in my respectful opinion, erred in his consideration of prejudice in this case.

[91] The transcript of the exchanges between the trial judge and Crown demonstrates that the trial judge was concerned about the effect this would have on the victim, who was present in court. The Crown offered to canvass whether the victim would remain in the courtroom if the disc were viewed in open court. While acknowledging that it was his decision to make, the trial judge expressed an interest in knowing the victim’s opinion with respect to his viewing the video and whether she wished to remain in the courtroom.

[92] The transcript shows that the hearing was held down for some time and upon resuming, the trial judge was advised, as he states, that “the complainant in this matter does not wish the video played”. There appears to have been no answer to the trial judge’s question whether the victim would have left the courtroom had the disc been played.

[93] In his ruling, the trial judge indicated that he was “mindful that the complainant in this matter does not wish the video played,” but reiterated, “her wishes and that of the family do not determine the issue for me.” After making reference to his experience and his exposure “to significant examples of the type of behaviour here,” the trial judge ruled he would not view it, stating:

In my view, the prejudicial effect of the viewing, (and by that I mean to the victim not the accused), far outweighs the probative value to the Court, being mindful of the sensitivity of the complainant/victim in this matter and the awareness of the Court of the nature and circumstances of what is in that video.

[94] A review of the transcript makes two things clear. First, notwithstanding his indicating otherwise, the trial judge, in his assessment of prejudicial effect identifies and relies upon only the impact on the victim of his of viewing the disc. He makes no mention of any prejudice to the respondent such that his right to a fair hearing would be jeopardized.

[95] In my view, the trial judge’s concern about the victim’s sensitivities does not fall within the proper ambit of the probative value versus prejudicial effect analysis.

[96] The due consideration of evidence will often include viewing that of an individual’s victimization – a task that unfortunately carries the potential of adversely affecting the victim, among others. However, obtaining an appreciation of all available relevant evidence is at the very core of the truth-seeking responsibility of the court. Allowing a judge to circumvent this responsibility out of a concern over potential adverse consequences such as this, threatens to undermine this important objective.

[97] Even if the impact on the victim by being present in court while the disc was viewed was relevant to the determination of whether the evidence in issue ought to have be admitted, the trial judge’s reliance on this concern was not supported by the record as he was not provided with an answer to his question as to whether the victim would leave the courtroom while he viewed the disc.

[98] I do not wish to be taken as suggesting that the sensitivities of victims are irrelevant. Far from it. I agree with my colleague that courts are becoming increasingly sensitive to the interests of the victims of crime; not just the impact the crimes have on victims but also the impact of the criminal process itself. The trial judge demonstrated laudable concern and compassion for the victim. However, I am of the view that this concern should inform not the admissibility of relevant evidence but rather the manner in which it is managed by the trial judge, once admitted.

[99] I take this opportunity to comment that there are practical ways to address a victim’s concerns while at the same time providing a trial judge with an opportunity to view the contents of evidence such as the disc at issue in the case. The jurisprudence discloses various methods trial judges have resorted to in order to that mitigate the detrimental effects to the victim, ensure the rights of the accused, respect the purpose of the sentencing hearing, and protect the fair and orderly process of the court: see R. v. Bernardo, [1995] O.J. No. 1472 (C.J. (Gen. Div.)), at paras. 122-123; R. v. Lehman, 2007 ONCJ 18, at paras. 3-4 and 11-12; R. v. G.(M.), 2009 ONCJ 561, at para, 6; R. v. J.V.H., 2010 BCPC 253, at paras. 3-4.

(iii) The Admissibility of the Exhibit in this Case

[100] Because the trial judge’s approach to the probative value and the prejudicial effect of the disc evidence was flawed, the decision not to admit the disc does not attract the usual degree of deference.

[101] It is manifest that the disc was no ordinary piece of evidence: it portrays, visually and audibly, the actus reus of the most serious of the offences of which the respondent was convicted. It is also the very subject of the pornography offences. To borrow the language of Hunt, infra, the images do not only depict the crime – they are the crime.

[102] Evidence of this nature has been the subject of strong comment – both in terms of its high degree of relevance and the importance of it being viewed. As my colleague notes, referring to the decision of the Alberta Court of Appeal in R. v. Hunt, 2002 ABCA 155, 166 C.C.C. (3d) 392, and the decision of Molloy J. in Kwok, videos or images of the actual crime(s) at issue are highly relevant and should normally be viewed. Like my colleague, I agree with Molloy J.’s observation in Kwok, at para. 48, that “[w]hile the description in words of such disturbing images is shocking, nobody can fully appreciate the sickening horror of such pornography without actually looking at it.” This position has been supported, properly in my view, by a number of trial judges: see R. v. Bishop, 2007 ONCJ 442, [2007] O.J. No. 3807, at para. 11; R. v. L.A.C., 2005 ABPC 217, 386 A.R. 102, at para. 60; R. v. Fisher, 2007 NBPC 15, 317 N.B.R. (2d) 317, at para. 5; R. v. Moen, 2006 SKPC 1, 274 Sask. R. 79, at para. 3.

[103] I appreciate that sentencing is a highly individualized process and a sentencing judge has considerable latitude as to the sources and types of evidence upon which to base his or her determination. However, in the circumstances of this case, and on this record, I am of the view that the important aspects of the nature and gravity of the sexual offences could only have been obtained by direct observation of the contents of the disc.

[104] Based on the foregoing analysis, I would admit the disc. Its contents are admittedly relevant, carry high probative value and do not prejudice the respondent’s right to a fair hearing.

[105] I would add that, even if I am mistaken as to whether the impact of the judge’s viewing the evidence on the victim can be considered as prejudice weighing against the probative value of the disc, and as to whether such prejudice is made out on this record, I am of the view that the evidence – the images and videos stored in the disc – should nonetheless be admitted.

[106] The comment of the Alberta Court of Appeal in Hunt, is worth repeating:

Being relevant, [the pornographic images] should have been reviewed by the sentencing judge unless some other exclusionary rule applied. Counsel for the Offender did not suggest the prejudicial effect outweighed the probative value. We doubt such an argument could be made when dealing with the actus reus of the crime. [Emphasis added.]

[107] On this record such an argument cannot be made.

(iv)Admission Requires Appropriate Review and Consideration

[108] As my colleague notes, an issue arose during argument as to whether the trial judge actually admitted the disc into evidence or merely marked it for identification purposes. The record is unclear. I agree with my colleague that the trial judge employed language that can be interpreted to suggest exclusion. However, the language is also indicative of admission. I refer to both the body of the transcript and in the introduction where exhibits are listed and the disc was formally marked as Exhibit One. I further note that the appellant, in his factum, specifically identifies the disc as an entered exhibit and the respondent, in his factum, agrees.

[109] Regardless of whether the trial judge did or did not admit the disc, I come to the same conclusion. If the trial judge did not admit the disc, he made the errors discussed above. If, on the other hand, the trial judge did admit the disc, for the reasons that follow, he nonetheless erred by failing to view and consider the evidence in arriving at his determination of a fit sentence.

[110] Once admitted, the trial judge was obligated to review the contents of the disc. While a sentencing judge must necessarily retain some discretion in terms of how to engage with admissible evidence, this discretion must be exercised within the bounds of what it means to “hear” and “consider” relevant evidence and information, pursuant to ss. 723(2) and 726.1 of the Criminal Code.

[111] The Criminal Code defines neither the term ‘hear’, nor ‘consider’. The Canadian Oxford Dictionary’s definition of “hear” includes “pay attention to”, “consider”, and “examine the merits of”. Burton’s Legal Thesaurus, 3rd Ed. (McGraw-Hill, 2001), defines “hear” as including “to give attention to and be guided by” and “consider” as “take into account, think about, turn over in one’s mind” and “weigh”.

[112] In Newfoundland Provincial Court Judges v. Newfoundland (1998), 1998 CanLII 14092 (NL SC), 160 D.L.R. (4th) 337 (T.D.), the court held that in order to “consider” a report, a legislative body must actually review it; it must turn its mind in good faith to the contents of the report.

[113] In R. v. Jeffrey (1976), 34 C.R.N.S. 283 (Ont. Prov. Ct.), the court, in a matter involving what was then s. 455.3(1)(a) of the Criminal Code, held that the requirement to “hear and consider” went beyond a mere reading of the informant’s allegation in the Information. The judge must actually hear, listen to, and consider the allegations. The restriction on the meaning of ‘hear’ in Jeffrey demonstrates that the duty to hear is not fulfilled simply because a judge otherwise has some knowledge as to what information may be revealed.

[114] In the light of these sources and the variety of forms that evidence can take at a sentencing hearing, the statutory requirement on the trial judge to ‘hear evidence’ and ‘consider relevant information’ involves acknowledging the evidence, paying attention to it or examining it, and informing oneself of its import.

[115] As previously indicated, a judge will necessarily have a degree of discretion in terms of how the obligations under ss. 723 and 726.1 of the Criminal Code may be met in the light of the nature of the exhibit and the issue to which it is relevant. For example, it may be neither practical nor necessary to review, line by line, a 500 page document. And of course, a judge retains the discretion to exclude otherwise admissible cumulative evidence if it is needlessly ‘piled on’: see R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at para. 60. However, deciding not to interact at all with relevant, admitted evidence would not be, in my view, consistent with what the Criminal Code mandates.

(2) Fitness of the Sentence

[116] The errors in the trial judge’s approach to the admissibility of the disc left him in a position of determining the sentence in the absence of important evidence on a central issue – the gravity of the sexual abuse offences. The sentence therefore does not attract the usual level of deference. No viva voce evidence was called. As such, this court is in a position to determine a fit sentence.

[117] The quantum of sentence must be proportional to the gravity of the offences and the moral blameworthiness of the offender: see Criminal Code, s. 718.1; R. v. C.A.M., 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at p. 529; Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, Wilson J., concurring, at p. 533.

[118] As noted by my colleague, recent amendments to the Criminal Code and decisions of this court have signalled a determination to address, in a more powerful and effective fashion, the need to denounce and deter crimes that involve the sexual victimization of children.

[119] My colleague refers to R. v. D.(D.), (2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788 (C.A.). In that case, Moldaver J.A., speaking for the court, expressed the following concern, at para. 45:

The harm occasioned [to children] by [adult sexual predators] is cause for grave concern. Children are robbed of their youth and innocence, families are often torn apart or rendered dysfunctional, lives are irretrievably damaged and sometimes permanently destroyed. Because of this, the message to such offenders must be clear – prey upon innocent children and you will pay a heavy price!

[120] In D.D., at para. 44, an appropriate range of sentences for sexual abuse of children was identified:

To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted.

[121] Almost a decade later, Moldaver J.A., in R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81, felt the need not only to reiterate the concern he expressed in D.D. but also to increase the “price” to be paid by adult sexual predators who violate young children: see paras. 74-75.

[122] In R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at para. 92, the Supreme Court spoke to the nature and significance of the harm caused by the production of child pornography:

The link between the production of child pornography and harm to children is very strong. 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 else.

[123] Concurrent with the recognition that offences involving the sexual victimization of children should attract higher sentences, came an overlay of increased penalties for crimes where the child sexual abuse is accompanied by making child pornography. In R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, the trial judge imposed a global sentence of 15 years upon the offender’s plea of guilty to the offences of sexually assaulting his daughter, and producing, distributing and possessing child pornography. The Québec Court of Appeal allowed the sentence appeal and reduced the sentence to nine years less 16 months for the time spent in pre-sentence custody. The Supreme Court, in restoring the trial judge’s sentence, reinforced the importance of arriving at a global sentence that reflected the interrelationship among the offences and the seriousness of the overall situation they gave rise to, at para. 31:

The judge also correctly understood the close relationship between the offences, the overall situation they gave rise to and the need to impose a global sentence suited to that situation. Viewed as a whole, the crime was complex. The offence of sexual assault was closely connected with three other offences of making, possessing and distributing child pornography that are subject to express sanctions under the Criminal Code. Each aspect of the offender's conduct could be considered only in light of all these charges, viewed as a whole. As Judge Wilhelmy concluded, the global sentence was the crucial factor in determining the sentence in the case at bar.

[124] In addition, as my colleague noted, ss. 718.01 and 718.2 of the Criminal Code identify certain factors, relevant to this case, as aggravating circumstances.

[125] In terms of the overall moral blameworthiness of the offender, on multiple occasions over an extended period of time, he sexually assaulted his young daughter through acts that included unprotected anal and vaginal intercourse. He recorded the abuse. In addition to these offences, the respondent, acknowledging his significant collection of over 1,800 images of child pornography, some depicting his daughter, pleaded guilty to possession of child pornography. Finally, the accused also pleaded guilty to the offence of possessing the unregistered and unsafely stored firearms that the police found in his home.

[126] The confluence of these factors clearly calls for a significant sentence to respond to the sentencing principles of general deterrence and denunciation – principles that have been identified, by statute, as paramount in sentencing offenders for crimes of this nature.

[127] I must also consider any mitigating factors. Those identified by the trial judge are: the effects upon the offender of his service in the armed forces, including his suffering from post-traumatic stress disorder, his taking medication known to have serious side effects, his guilty plea, his remorse, his preparedness to seek treatment, the fact that the evidence indicated the offender was at a low or low-to-moderate risk to re-offend, the fact that there was only one victim and the offender was not in a predatory role, and the victim’s wishes.

[128] I agree that the offender deserves credit for taking responsibility for his conduct through his guilty plea and making it unnecessary for his daughter to testify about the abuse he inflicted on her. However, in the light of the evidence, including his own recording of the abuse, the Crown had what may be called an overwhelming case.

[129] While the offender’s expression of remorse is also a mitigating consideration, in my view it is minimal given his limited insight demonstrated by his description to Dr. Eccles of his conduct being “just intercourse”.

[130] The offender’s history of medical problems and his time served in the armed forces are also relevant. These factors are, to borrow the trial judge’s language, part of what brought the offender to where he is today. However, I attach limited importance to them given the evidence about there being no direct causal connection between this history and the commission of the offences.

[131] With respect, these factors – while mitigating – do not justify describing the sentence of five years’ imprisonment for the sexual offences as being at the very low end of the range. In my view, it falls below the range.

[132] Furthermore, unlike my colleague, I take issue with the trial judge’s finding that there was only one direct victim. Each child depicted in the multitude of child pornography images in his possession is a victim. In Sharpe, L’Heureux-Dubé, Gonthier and Bastarache JJ. stated the following, at para. 132:

The very existence of child pornography, as defined by s. 163.1(1) of the Criminal Code is inherently harmful to children and society. This harm exists independently of dissemination or any risk of dissemination and flows directly from the existence of the pornographic representations, which on their own violate the dignity and equality rights of children.

[133] I am also wary of the emphasis that the trial judge placed on the offender’s not being in a “predatory role, which means outside of your family”. As my colleague notes, s. 718.2(iii) of the Criminal Code cites an offenders’ abuse of a position of trust or authority in relation to the victim as an aggravating factor for the purposes of sentencing. The offender violated a most sacred relationship of trust – that between a parent and his own child. While the trial judge mentioned the relationship of trust between a father and daughter, it appears that what should have been treated as an aggravating factor was in fact treated as mitigating, or, at best, as neutral.

[134] Finally, on this record, I disagree with the trial judge’s having taken the wishes of the young victim into consideration. I say this in the light of his specific observation that she lacked insight into what her father had done to her. In my opinion, her views should not be given much weight in determining a fit sentence.

[135] This takes me to the offence of production of child pornography for which the respondent has been convicted. Pursuant to s. 163.1(2)(a) of the Code, this offence carries a minimum sentence of one year imprisonment and a maximum of ten years.

[136] In this case, given the circumstances surrounding the offence, the minimum sentence cannot be justified. The sexual activity displayed was explicit and extreme. The offender’s own child was the victim. There were repeated instances of his recording the sexual abuse and the victim knew this.

[137] The lack of evidence concerning the use to which the offender made or planned to make of the recordings does not, in my view, limit the victim’s suffering. While being violated by her father, the victim had to endure the additional horror of knowing that he was making a record of the assaults. She then had to endure the continuing horror of knowing that the videos were in her father’s possession for his enjoyment, at any time.

[138] Similarly, the fact that there is no evidence that the offender intended to distribute the images of his daughter or the other children is of little moment. But for the offender’s apprehension and the discovery of the images of child pornography in the offender’s possession, his daughter and the other children depicted in the images and videos would remain victims of abuse on an ongoing basis.

[139] The offender also pleaded guilty to possession of child pornography. In his possession he had videos and over 1,800 still images. Compared to other cases of substantially larger collections of child pornography, the offender’s collection is not as extensive, but is certainly significant, indicating a strong proclivity to child exploitation. Furthermore, my review of the images revealed a collection containing vile photographs of children of various ages, some barely beyond being toddlers, engaging in sexual activity with each other and adult men. Thus, the offender contributed to the abuse of countless young children. These are all crimes of unspeakable violence that give rise to unspeakable harm, much of which will take a long time to be understood and even longer, if ever, to come to an end.

[140] Under all of these circumstances, I would grant leave to appeal, allow the appeal, and increase the sentence for sexual assault, incest and sexual interference to eight years, on all these counts concurrent to each other. I would impose a sentence of four years for the production of child pornography.

[141] I recognize that there is an overlap between the sexual abuse charges and the production of child pornography charge, but the latter is nevertheless a separate charge with distinct elements that carry significant aggravating features. On that basis, but for the totality principle discussed below, I would make this sentence consecutive. Likewise, I would impose a separate consecutive sentence of one year for possession of child pornography. Although not pressed on appeal, I would make the six-month sentence for careless storage of a firearm consecutive to the sentence served for the other offences.

[142] However, in arriving at a fit sentence, the principle of totality must be considered (Criminal Code, section 718.2(c)), recognizing as did my colleague, that in R. v. D.G.F., 2010 ONCA 27, 98 O.R. (3d) 241, this court stressed the importance of not allowing the totality principle to interfere with the imposition of a sentence that recognizes the overall gravity of the offender’s conduct: see paras. 20 and 27.

[143] Given the overall gravity of the offences and the degree of responsibility of the offender, and taking all of the aggravating and mitigating circumstances into account, and also considering the Crown’s position at trial and maintained on appeal of nine years’ imprisonment, I would impose a global sentence of nine years. This would be accomplished by imposing eight years for the sexual assault, sexual interference and incest convictions, concurrent to each other; four years for the making child pornography conviction, concurrent; and one year consecutive for the possession of child pornography conviction. I would not interfere with the six-month concurrent sentence for the firearms offence.

[144] This would yield a total effective sentence of nine years. Allowing 22 months credit for the period of 11 months pre-sentence custody, the total sentence to be served would be seven years plus two months’ imprisonment.

Irrespective of the Evidentiary Issue, the Sentence Imposed by the Trial Judge Is Unfit

[145] With great respect, I disagree with the view of my colleague – following his conclusion that the trial judge did not err in his treatment of the disc – that based on the deference owed to the trial judge in determining a fit sentence, the sentence should not be disturbed.

[146] Among other factors, I note that after reviewing the mitigating factors, the trial judge indicated the balance he sought to strike with a global sentence of six years:

...I hope to impose a sentence that will balance the need for society to condemn [the offender] and [his] acts while leaving the door open to the prospects for successful reconciliation.

[147] This demonstrates that the trial judge’s approach departed from that mandated by s. 718.01 of the Criminal Code, which, as my colleague notes, provides that where the victim of sexual abuse is a child under the age of 18, the primary objectives of sentencing are deterrence and denunciation. Here, the trial judge erred in principle by focusing on rehabilitation and reconciliation with the victim at the cost of adequate attention to denunciation and deterrence.

[148] In my view, in the light of the seriousness of the offences, the direction of the law, and my analysis of the other s. 718 factors, much of which explicitly and implicitly takes issue with the analysis of the trial judge, the sentence the trial judge imposed was not “just and appropriate”. The aggregate sentence he arrived at was not a “high price” within the reasoning of D.(D.) and is demonstrably unfit.

III. CONCLUSION

[149] The offender’s abuse of his young daughter was horrendous and prolonged. His abuse of the countless other victims depicted in his child pornography collection is serious and, given the preparedness of depraved individuals to use the internet to share their passion for child pornography, must be strongly condemned. In the light of the degree of the offender’s moral culpability and the recent direction Parliament and this court in attempting to address the harm caused by sexual predators of young children and the importance to be placed on denunciation and deterrence, I would grant leave to appeal sentence, allow the appeal and impose a global sentence of nine years’ imprisonment less 22 months credit for the 11 months of pre-trial custody.

Signed: “G. J. Epstein J.A.”

Released: “MR” MARCH 16, 2012