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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rotman, 2015 ONCA 663

DATE: 20151002

DOCKET: C59126

Cronk, Epstein and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Rotman

Appellant

Catriona Verner, for the appellant

Allison Dellandrea, for the respondent

Heard: September 16, 2015

On appeal from the sentence imposed on May 7, 2014 by Justice Charles H. Vaillancourt of the Ontario Court of Justice.

Brown J.A.:

[1] The appellant, Jason Rotman, was convicted of one count of possession of child pornography, as well as one count of failure to comply with a prohibition order and two counts of failure to comply with a probation order. On the conviction for possession of child pornography, the appellant was sentenced to three years’ imprisonment, in addition to his pre-sentence custody of 2 years and 13 days. He was also sentenced to six months in jail, consecutive, for breach of his prohibition order and six months’ imprisonment, concurrent, on his two breach of probation offences. As well, the appellant was declared to be a long-term offender and a ten-year long-term offender supervision order (“LTSO”) was imposed. The appellant seeks leave to appeal the sentence imposed for his conviction for the possession of child pornography and the length of the LTSO. He does not challenge his designation as a long-term offender.

(1) Legality of Sentence

[2] The appellant advances two main arguments in respect of the custodial sentence imposed on the possession of child pornography conviction: (i) the sentence was illegal because it exceeded the maximum sentence of five years’ imprisonment then in force under s. 163.1(4)(a) of the Criminal Code, R.S.C. 1985, c. C-46; and (ii) the sentencing judge erred in focusing solely on the principle of protecting the public in determining the appropriate length of the prison term.

[3] Absent an error in principle, failure to consider a relevant factor, or overemphasis of the appropriate factors, a reviewing court may only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit: R. v. M.(C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, at para. 90.

[4] When submissions on sentence were made on January 23, 2014, Crown counsel argued that an appropriate sentence would be three to four years’ imprisonment, in addition to pre-sentence custody. The appellant sought a sentence of two years less a day, taking into consideration his pre-sentence custody, which effectively would result in time served. Appellant’s counsel informed the court that, at the time of the sentencing hearing, the appellant had been in custody for 21 months (April 24, 2012 to January 23, 2014). Although the sentencing judge was prepared to pass sentence in early April, 2014, scheduling issues prevented the judge from sentencing the appellant until May 7, 2014, some three months and two weeks after the date of the sentencing hearing. By that time, the appellant had been in custody for 2 years and 13 days.

[5] The sentencing judge did not deal expressly with the issue of credit for the appellant’s pre-sentence custody. He said only: “In addition to Mr. Rotman’s pre-trial custody, I sentence him to 3 years plus a 10 year Long-Term Offender designation on the possession of child pornography.” Since, at the time of sentencing, the appellant had spent 2 years and 13 days in pre-sentence custody, the term of imprisonment imposed by the sentencing judge totalled 5 years and 13 days.

[6] The appellant submits that the sentence imposed was illegal because it exceeded the maximum of five years’ imprisonment mandated at the time by s. 163.1(4)(a) of the Criminal Code. The Crown submits that although the sentencing judge, contrary to s. 719(3.2) of the Criminal Code, did not provide any reasons for any credit granted, in the circumstances his reasons should be read as having reduced the credit given for pre-sentence custody to below 1:1, bringing the overall custodial term imposed within the statutory limit.

[7] I accept the appellant’s submission. The language used by the sentencing judge in his reasons clearly indicates that he imposed a sentence containing two elements – the time already served by the appellant in pre-sentence custody (2 years and 13 days by the date of sentence), together with a further 3 years’ imprisonment. At the time the sentence was imposed, that resulted in a sentence which exceeded, by 13 days, the statutory maximum of 5 years’ imprisonment. By imposing a sentence that exceeded the statutory maximum, the sentencing judge erred in principle. On this basis alone, the sentence imposed cannot stand.

[8] As a result, it falls to this court to determine a fit sentence for the appellant’s conviction for possession of child pornography.

(2) A Fit Sentence

[9] At the sentencing hearing, the Crown sought a term of imprisonment near the statutory maximum of five years. The Crown renews that position before this court. The appellant submits that an appropriate sentence is three years in jail.

[10] Denunciation and general deterrence are the primary applicable sentencing principles when sentencing for child pornography offences. This was a second pornography-related offence by the appellant. In February 2010, the appellant pleaded guilty to one count of making available child pornography, as well as to sexual assault, two counts of luring a child, and failure to comply with his recognizance. He was sentenced to 16 months’ imprisonment, in addition to credit for 10.5 months’ pre-sentence custody, concurrent on all charges, followed by three years’ probation. One of the terms of his three-year probation order was not to possess any telecommunication device capable of accessing the internet, except while supervised and solely for the purpose of employment.

[11] However, within a week of his release from jail in January 2011, the police discovered that the appellant had breached the terms of his probation by using a laptop computer to engage in on-line chatting with under-aged girls. He was also in possession of a cell phone that was capable of accessing the internet. The appellant pleaded guilty to two breaches of probation and, in June 2011, was sentenced to approximately 12.5 months’ imprisonment, in addition to 155 days pre-sentence custody, followed by 3 years’ probation.

[12] Within two months of his release from jail in March 2012, the appellant had breached the conditions of his s. 161 prohibition order and probation orders and had collected more child pornography. I agree with the statements of the sentencing judge that, “after his release on the 2011 charges, Mr. Rotman flagrantly and quickly breached his probation terms again and re-involved himself in activities expressly prohibited by his court orders and re-entered the realm of child pornography,” and that the appellant’s “criminal record demonstrates his proclivity for engaging in criminal conduct similar to the predicate offences over and over again.” The appellant’s record for similar offences and his disregard for the terms of his probation and prohibition orders operate as strong aggravating factors in the circumstances.

[13] At the time of his arrest on the predicate offences, the police discovered two USB drives in the appellant’s possession, plus twelve pages of handwritten notes by the appellant. The nature of the child pornography found on the USB drives was vile – four still photos and two videos of child pornography, including depictions of pre-pubescent girls engaged in oral and vaginal intercourse with adult males. The appellant’s handwritten notes included sexual information relating to women and young girls with whom the appellant had chatted online.

[14] Although the amount of collected child pornography was small, I agree with the sentencing judge’s observation:

[Defence counsel] pointed out that the number of images in Mr. Rotman’s possession was very small. This factor is of no great moment considering Mr. Rotman’s very brief time in the community following his most recent period of incarceration. The fact remains that after his release he was in the initial stages of putting a new collection in place.

[15] Few mitigating factors are present in this case. In his factum, the appellant acknowledges that the expert evidence given by Dr. McMaster at the Long Term Offender hearing was that the appellant is at a moderate to high risk to re-offend in a hands-on fashion, manifesting itself in sexual contact with a child who is “consenting,” and that he is at a very high risk to re-offend by luring a child or by his involvement with child pornography. Although, on the day of his sentencing, the appellant filed a letter with the judge expressing remorse, I agree with the sentencing judge that the sincerity of the appellant’s remorse is questionable.

[16] Taken together, these factors point to a custodial sentence near the statutory maximum. I conclude that a fit sentence is 4.5 years of imprisonment on the conviction for possession of child pornography.

[17] The appellant has been incarcerated since April 24, 2012. The appellant submits that he should receive credit for his pre-sentence custody on a 1.5:1 basis. I agree.

[18] Judges may grant credit for pre-sentence custody at a rate of 1.5:1 to account for lost eligibility for early release and parole during pre-sentence custody, as well as for the relative harshness of the conditions in detention centres: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, at para. 70. A lower rate may be appropriate where the offender is likely to obtain neither early release nor parole: Summers, at para. 71.

[19] The appellant was in custody at a provincial detention centre for 2 years and 13 days prior to his sentencing. Fresh evidence filed on consent by the appellant shows that, since his sentencing, the appellant has been incarcerated in a federal penitentiary where he has received and completed the High Intensity Sexual Offender Treatment Program.

[20] Given the loss of eligibility for early release and the conditions of the appellant’s pre-sentence detention in a provincial facility, I conclude that the appellant is entitled to credit for his pre-sentence custody on a 1.5:1 basis. This results in credit of 3 years, 19.5 days (1,114.5 days) for pre-sentence custody. Taking into account the time served by the appellant since his sentencing, his remaining sentence on his conviction for possession of child pornography is 16 days.

(3) LTSO

[21] As to the length of the LTSO, the appellant submits that the sentencing judge erred by failing to provide reasons for imposing the longest possible supervision period of 10 years available under s. 753.1(3)(b) of the Criminal Code. The appellant submits that five years is an appropriate term for the LTSO.

[22] I disagree.

[23] The sentencing judge gave extensive reasons for imposing a LTSO. His reasons must be read as a whole. In those reasons, he reviewed, in detail, the appellant’s conduct that stretched back to 2004, and made the following key findings, none of which is challenged by the appellant:

(i) The appellant’s risk of re-offending is very high and would continue to exist absent meaningful treatment, close supervision, and a gradual re-integration into the community;

(ii) Probation as a form of control and rehabilitation has been a complete failure because the appellant has displayed a contempt of court orders and has demonstrated his proclivity for engaging in criminal conduct similar to the predicate offences over and over again; and,

(iii) The appellant did not seem to recognize that he had a problem and was in denial regarding his situation.

Those findings led the sentencing judge to impose a LTSO of 10 years. In my view, the evidence amply supported those findings and that conclusion. I see no basis to interfere with the duration of the LTSO.

(4) Disposition

[24] For the reasons given, I would grant the appellant leave to file the fresh evidence and to appeal from his sentence. I would allow the appeal on the custodial sentence, set aside the sentence imposed by the sentencing judge, and substitute therefor a term of imprisonment of 4.5 years for the conviction for possession of child pornography. After proper credit for pre-sentence custody and taking into account his time served, the appellant’s remaining custodial sentence is 16 days. In all other respects, I would dismiss the appeal.

Released: October 2, 2015 (EAC)

“David Brown J.A.”

“I agree E.A. Cronk J.A.”

“I agree Gloria Epstein J.A.”