Her Majesty the Queen v. J.S.

[Indexed as: R. v. S. (J.)]

Ontario Reports Court of Appeal for Ontario

Strathy C.J.O., Watt and G.J. Epstein JJ.A.

August 2, 2018

142 O.R. (3d) 81 | 2018 ONCA 675

Case Summary

Criminal law — Sexual offences — Sentence — Accused filming his sexual abuse of his three very young nieces and distributing images on Internet site devoted to made-to-order sadistic child pornography — Accused also possessing extreme child pornography collection — Accused pleading guilty to making, possessing and distributing child pornography, sexual assault with weapon and sexual interference — Sentence of 18 years' imprisonment affirmed on appeal — Sentence at high end of range and possibly in excess of range but not resulting from error in principle and not demonstrably unfit.

The accused pleaded guilty to making, possessing and distributing child pornography, sexual assault with a weapon and three counts of sexual interference. While babysitting his three nieces (six-month-old twins and a four-year-old), the accused sexually abused them, filmed the abuse and distributed the images on an Internet site devoted to made-to-order sadistic child pornography. He attached the older child's name to the sexual abuse images of her which he shared with others. The website attracted people who, like the accused, had access to children and recorded their sexual abuse of those children for distribution. The accused also possessed a child pornography collection that included images and films of sadistic sexual abuse and sexual degradation of very young children. He was 35 years old at the time of the trial and had no criminal record. He showed a lack of insight into the harm he caused and was assessed as a high risk to re-offend. The older girl had developed very serious behavioural and emotional issues including developing an eating disorder, signs of self-mutilation and required constant supervision to prevent her from acting inappropriately towards other children, including her sisters. Victim impact statements also discussed the harm to the other children and the life-altering impact of his actions on some members of the victims' family. The trial judge sentenced the accused to ten years' imprisonment for making child pornography, 4.5 years consecutive for distributing child pornography, six months consecutive for possessing child pornography, five years concurrent for sexual assault with a weapon, three years concurrent on each of two counts of sexual interference, and three years consecutive on the third count of sexual interference -- a total of 18 years' imprisonment, less a credit of 18 months for pre-trial custody. The accused appealed.

Held, the appeal should be dismissed.

The sentencing judge did not fail to consider the totality principle. While he did err in considering the accused's lack of remorse as an aggravating factor, the error was inconsequential because it did not impact the sentence. The sentencing judge's observations about the accused's lack of remorse were made in the context of considering his lack of insight into his crimes and his risk of re-offending. Taken in context, the sentencing judge did not use the accused's lack of remorse to increase the sentence, but rather properly used it to assess the risk of re-offending and the consequent need to isolate the accused from society.

The sentencing judge did not err in making the sentences for possession of child pornography and sexual interference consecutive to the sentence for making child pornography. While there was some overlap in the factual basis of those offences, they were not co-extensive. The accused's collection included not only his three nieces but also images he had obtained of other young children being sadistically sexual assaulted and subjected to acts of degradation. Moreover, the offences of sexual interference and making child pornography protect different interests and it was within the trial judge's discretion to impose consecutive sentences.

Sadistic sexual assault of twin babies and a very young child by a trusted caregiver is amongst the most grievous crimes imaginable. To record such abuse and trade it on the Internet compounded the injury to the victims, particularly as the accused did so for the stated purpose of attaining notoriety and "respect" so that others would share their own sadistic abuse of children. The accused encouraged others to prove themselves with the private trade of images of their own sexual abuse of very young children. Internet child pornography is on the rise means that is highly likely that so too is the sexual abuse of children for the purpose of creating such images and movies. Very young victims have no voice, and images of their abuse are traded in encrypted and anonymous parts of the Internet using software designed to protect both the consumer and supplier. It is extremely difficult for the police to gain access to such images, trace them and rescue the victims. The primary sentencing considerations were denunciation and deterrence. The sentence imposed sends the message to like-minded offenders that they will pay a very heavy price for their conduct. While the sentence was at the high end of the range for such offences, and possibly in excess of the range, the sentencing judge did not make any error in principle, fail to consider or over-emphasize a relevant factor, nor was the sentence demonstrably unfit.

Appeal

Appeal by the accused from the sentence imposed on June 10, 2016 by J.D.D. Evans J. of the Ontario Court of Justice.

Brian A. Callender, for appellant.

John A. Neander, for respondent.

The judgment of the court was delivered by

Judgment

[1] STRATHY C.J.O.:

The appellant was convicted of sexually abusing his three nieces (six-month-old twins and a four-year-old), filming the abuse and distributing the photographs and movies on an Internet site devoted to the sexual abuse of children. He was also convicted of possession of child pornography. His collection included images and films of sadistic sexual abuse and sexual degradation of very young children.

[2]

The appellant appeals his sentence of 18 years (less 18 months' credit for pre-trial custody) on his convictions after guilty pleas to counts of making child pornography, distributing child pornography, possessing child pornography, sexual assault with a weapon and three counts of sexual interference. The relevant offences and sentences are summarized in Appendix A.

[3]

For the reasons that follow, I would dismiss the appeal. The sentence imposed, while lengthy, is entitled to deference. The sentencing judge identified the relevant principles and applied them correctly. The sentence is not demonstrably unfit.

A. Background

The Offences

[4]

I begin with a caution. It is unfortunately necessary to describe the offences and the circumstances surrounding them in a degree of detail that is graphic and disturbing, in order to have a full appreciation of the nature and gravity of the appellant's admitted conduct.

[5]

In 2015, the Child Sexual Exploitation Unit of the Ontario Provincial Police ("OPP"), working in conjunction with the Royal Canadian Mounted Police's National Child Exploitation Coordination Centre and international police agencies, located a child depicted in Internet child pornography known by investigators as the "S Series". The abuser could be heard using the child's name, "S", in some of the videos of his abuse.

[6]

After interviewing the child and her mother, police arrested the appellant, who had been a babysitter for his nieces, S and her twin siblings, B1 and B2.

[7]

A search warrant executed at the appellant's home yielded two computers and an external hard drive containing images and films depicting the appellant's sexual abuse of his nieces, a child pornography collection and postings by the appellant to an anonymous and secret website devoted to distribution and trading between producers and consumers of extreme forms of child pornography.

[8]

It was ascertained that during the summer of 2012, the appellant's three nieces were left in the appellant's care while his sister-in-law worked outside the home. During this time, the appellant sexually abused his nieces, recorded the abuse and posted some of it to a website.

[9]

A representative sampling of the images and films found on the appellant's devices was introduced in evidence before the sentencing judge. This included child pornography unrelated to his nieces. The appellant's collection contained images of vaginal and anal penetration of young children, penetration of children with objects and fingers, a movie of the anal rape of a boy under two years of age, whose arms and legs were bound by electrical tape and an image depicting bondage of a four-year-old girl.

[10]

A sampling of images of B1 and B2 included images of a child's vaginal area, insertion of the appellant's penis in a child's mouth and insertion of a candle into a child's anus. These images were apparently used as part of the appellant's "advertisements" on the website. Films of one or both of the twins showed the use of an electric toothbrush on the infant's vagina, digital masturbation and cunnilingus. In several of the films, the child was crying during the abuse.

[11]

Images and films of S included attempted penetration of the anal and vaginal areas with an erect penis, digital penetration, masturbation of the clitoris, anal penetration with a Sharpie marker and cunnilingus. One film showed the child nude, awake and watching television.

[12]

Apart from the child pornography he himself produced, the appellant's child pornography collection included some 577 images and 243 films. The investigating officer testified that the volume of pornography in the collection was "not above average", but there was evidence to suggest that the appellant may have erased some of his material. The officer described the appellant's collection as "the most intrusive collection I've ever had to categorize". She added, "I saw things in this collection I've never seen before in six years." It included sadistic sexual acts committed against children, as well as penetration with a range of instruments. The officer noted that it was apparent from many of the images and films that "it was the discomfort of the child that was sexually pleasing to the person". The Crown described it as "among the most intrusive and degrading image and movies that can exist", involving infants and very young children, most between the ages of four and six.

[13]

The judge was also provided with a four-page written synopsis of the representative sampling, prepared by the investigating officer, which is part of the record before us.

[14]

The sentencing judge heard and observed evidence of the appellant's activity in the world of Internet child pornography. The website or "boards" in which the appellant participated were dedicated to the sexual abuse and degradation of children. The abuse included anal and vaginal penetration, spanking and urination and ejaculation on children's bodies.

[15]

The evidence adduced before the sentencing judge was that the website used by the appellant for distribution of his material attracted the "upper echelon" of the child pornography industry -- that is, those, like the appellant, who sexually abused children to whom they had access and recorded the abuse for the purpose of distribution. The officer described these individuals as the "hands-on offenders". In order to become a member of the website, or to obtain entry to a particular site or "board", the user had to show that he had access to a child and could make child pornography "to order" based on what other members wanted to see. To use the example given by the officer who testified at the trial, a member of the board might ask another member to spank or urinate on a child in his care.

[16]

The appellant used various names to identify himself on the website. One was "Puffy Pudenda". The officer defined "pudenda" as "the external genital organs, specifically those of the female, the vulva". In May 2013, the appellant posted an introduction to himself on the website:

Daddy of three gorgeous little fuck toys. Really like to hold down my two youngest and spank their little asses for long periods of time, followed by extended forced vibrator play making them convulse, shake and piss all over the place. Beats using Tempera to calm 'em down.

[17]

Attached to this post were ten images of sexual abuse he had committed on his three nieces.

[18]

Later in the same month, the appellant posted another introduction:

Hey everyone just wanted to say a quick hello to tell you a bit about myself. I'm sure some of you have seen some of my material. I'm a daddy of three girls, all under the age of six. Yeah, I live a pretty blessed life as you can all imagine. The best part is I'm a stay-at-home dad, [while] mommy works long hours.

[19]

The appellant proceeded to describe his sexual abuse of one of the children, performing cunnilingus on the child until she urinated and then spanking the child for urinating on him. He described spanking the child with "good strong smacks and my rhythm is steady like a metronome", then pinning back her legs and using a vibrator on her vagina. The appellant said that he used zinc diaper cream to digitally penetrate the child's anus. The appellant indicated that he had attached a "couple of teasers" (photographs of the abuse) to his post. He stated that he had "already proven myself" to the users of the board. He added that he "[w]ould like to hear from other dads of toddler girls, maybe toddler boys". In another posting he told the other members, "if you want private trades you will need to prove yourself".

[20]

Some of the appellant's posting demonstrated contempt for "leechers", who simply consumed the pornography made by "producers" like him and did not contribute their own material to the website.

The Offender

[21]

The appellant was 35 years old at the time of trial and was unmarried. He had previously been in a common law relationship for six years. He had no previous convictions. The sentencing judge noted that he had a grade 10 education and had had sporadic employment. He had been receiving payments from the Ontario Disability Support Program since October 2013 due to a neck and back injury. He admitted to self-medicating his anxiety disorders through the regular use of marijuana. He also used other non-prescription drugs.

[22]

The appellant was raised in a dysfunctional home, characterized by violence and substance abuse. There was some evidence, referred to in the pre-sentence report, that he may have been sexually assaulted by an 11-year-old boy from his neighbourhood when he was five years old, and other evidence suggesting that he had been sexually assaulted by his father at the age of three.

[23]

The sentencing judge noted that the author of the pre-sentence report observed that the appellant had made some contradictory statements with respect to the benefit he might receive from counselling. He did not feel he had hurt S, because he loved her.

[24]

The author of the pre-sentence report noted that although the appellant took responsibility for his conduct by acknowledging guilt, he did not appear to be remorseful or concerned for the victims. He lacked insight into what a healthy relationship with a child should entail.

The Victims

[25]

Two victim impact statements were before the sentencing judge. One was from the children's grandmother, with whom S was placed after the appellant's arrest and following the removal of the children from the family home. The other was from the victims' mother. Both statements spoke of the consequences of the abuse, not only on the victims, but on their parent, grandparents and siblings.

[26]

The sentencing judge observed:

[The statements] speak in a poignant and [heart-rending] fashion to the emotional trauma suffered by these child victims with its ongoing and lasting effects, as well as the physical, emotional and life-altering impact the accused's conduct has wrought upon some of the members of the victims' families.

[27]

The victim impact statements indicated that the older child, S, had required therapy to address behavioural and emotional issues and required constant supervision to control inappropriate behaviour towards other children, including her younger siblings. She had become isolated and alienated. According to her mother, she had developed an eating disorder and showed signs of self-mutilation. Her mother was concerned that the two younger girls might develop similar behaviours as a result of the abuse.

Submissions at Sentencing

[28]

The Crown sought a sentence of between 15 and 18 years. Crown counsel emphasized the nature of the sexual abuse itself, the massive breach of trust and the impact on the victims and their family life. He pointed out that quite apart from the production and distribution of the child pornography, the sexual abuse of defenceless young children on its own would attract a very significant penitentiary sentence. The Crown described the images as "clearly sadistic and extreme child sexual abuse", with the appellant's own words demonstrating his desire for recognition and status in the world of child pornography producers. Once distributed on the Internet, the Crown pointed out, the pornography could never be recalled. The images will continue to be seen by people around the world.

[29]

The defence acknowledged the gravity of the offences, the vulnerability of the victims and the long-term impact of the images remaining on the Internet, particularly with respect to S, whose name was attached to some of the images. It was, the defence admitted, a unique and aggravated set of facts.

[30]

The defence submitted that the "range" for the offences was eight to 15 years. Defence counsel acknowledged that it was "one of the most serious offences of making and distributing child pornography and, in fact, this person is the perpetrator of the sexual violence in the creation of those images. So that makes this a very worst example of the offence." She suggested, however, a sentence of eight to ten years.

[31]

Defence counsel acknowledged the appellant lacked remorse, and suggested that he was "born without an empathy gene". Counsel said that the appellant simply did not understand the harm he had caused the children.

Reasons of the Sentencing Judge

[32]

The sentencing judge described the appellant's offences as "one of the worst, if not the worst, examples" of these offences. The images and films and the appellant's posts on the Internet sites spoke for themselves and demonstrated his determination to be recognized and appreciated as a producer of "the most vile of child pornography". He found that the appellant created and distributed the material "without concern for the pain and suffering he was inflicting upon his helpless and vulnerable victims in his pursuit of recognition and appreciation from his like-minded peers".

[33]

The victim impact statements, in the judge's view, spoke "to the emotional trauma suffered by these child victims with its ongoing and lasting effects, as well as the physical, emotional and life-altering impact the accused's conduct has wrought upon some of the members of the victims' families".

[34]

The sentencing judge noted:

Even in the absence of impact statements the Court is entitled to consider the well-known consequences of child sexual abuse upon the victims, including psychological harm, emotional trauma, and the inability as an adult for the victim to form a loving and caring relationship with another adult. The Court can also consider, as in this case, that the posting of the child pornography on the internet will forever permit these children, and in particular, S, to be further victimized and they will be further traumatized by the knowledge that these images and movies could surface in their personal lives at any time.

[35]

He referred to the pre-sentence report but pointed as well to the opinion of the investigating officer who described the accused as "arrogant, self-centred and lacking remorse". He noted that the author of the pre-sentence report considered that the appellant posed a high risk to re-offend.

[36]

The sentencing judge found the following aggravating factors:

• the number of victims and their ages of six months and four and a half years;
• the nature of the assaults committed upon the victims, with its relative depravity and violence;
• the accused's sexual abuse of his victims was for the purpose of his creating, possessing and distributing child pornography on the Internet which could lead to further victimization of the children by others;
• the size and nature of the accused's child pornography collection;
• the accused's position of trust as the uncle and part-time care giver to the children;
• the accused's desire to create and distribute child pornography in a manner which would enhance his standing amongst his peers in the child pornography community;
• the accused's callous disregard of the obvious pain and suffering he was inflicting upon his six-month-old victims;
• the accused's lack of insight into the harm he had visited upon his victims, either due to the lack of any moral compass or through willful disregard;
• the accused's lack of any genuine remorse; and
• the accused's ambivalence with respect to the possible benefits of counselling, which raised the spectre of his being at a high risk to re-offend.

[37]

The sentencing judge found the following mitigating factors:

• the accused's lack of a prior criminal record; and
• the accused's pleas of guilty, which spared S the trauma of testifying, but which he found to be "more of an acceptance of reality in the face of overwhelming and compelling evidence than an expression of any genuine remorse".

[38]

The judge noted the appellant's dysfunctional upbringing and the presence of some evidence that he had been sexually assaulted as a young child. It was not suggested at sentencing or in this court that this evidence should be taken into account as an explanation for the appellant's conduct.

[39]

The trial judge noted that the goals of denunciation, and general and specific deterrence took precedence in these types of offences. He said:

The Courts have made it clear that in sentencing for these types of offences denunciation, general and specific deterrence and the need to separate the offender from society take precedence over the other recognized objectives of sentencing. The Court has a duty to seek to protect children who are our most vulnerable and our most valued assets in our society. The sentences imposed must be sufficiently punitive to demonstrate society's revulsion and condemnation and to demonstrate to the accused and to those who are like-minded that the consequences of such conduct will be dire.

[40]

He noted that "even where an accused might not qualify as the worst offender the maximum sentence might well be appropriate if it is a fit sentence in the light of the gravity of the offence and the degree of responsibility of the accused". He also referred to the investigating officer's opinion that the appellant would be likely to re-offend.

[41]

The sentencing judge noted the principle of totality, acknowledging that he was required to ensure that the sentences imposed, together, did not result in a penalty that was unduly harsh or exceeded that which would be appropriate in the circumstances.

B. Submissions on Appeal

[42]

I will elaborate on the parties' submissions in more detail in the "Analysis" section of these reasons. The following brief summary will put the issues in context.

Submissions of the Appellant

[43]

While the appellant acknowledges that the sentence for distribution of child pornography should be at the high end of the range, he submits that the sentencing judge did not give adequate consideration to the totality principle in considering the sentences for the other offences and the sentence as a whole, resulting in a sentence that was disproportionate and unfit. He characterizes the sexual assaults and the making of child pornography as being at the low to medium level of severity and the sexual interference as part and parcel of the child pornography offences. He submits that the trial judge's failure to recognize that the offences were not the most serious resulted in a total sentence that was excessive, particularly when compared to sentences imposed on other offenders for similar offences.

[44]

He also submits that the sentencing judge made errors in principle in treating the appellant's lack of remorse as aggravating and in making the sentences on counts 3 (possessing child pornography) and 7 (sexual interference) consecutive.

Submissions of the Respondent

[45]

The respondent acknowledges that the sentencing judge erred in characterizing lack of remorse as aggravating, but submits that the error did not impact the sentence in any meaningful way. The respondent describes each of the offences as serious, particularly having regard to the very young age of the victims, the distribution of images of their abuse on the Internet, the appellant's stated intention to become a "respected" producer of sadistic and degrading child pornography and his exhortations of others to do the same. Not only was the appellant producing child pornography, he was in possession of other particularly vicious and degrading images of sexual abuse of young children. The overall sentence was fit.

C. Analysis

[46]

I begin by examining the standard of review, followed by outlining some general principles applicable to sentencing. I will then examine the appellant's grounds of appeal and, finally, consider whether the sentence imposed was fit.

(1) Applicable Principles

The Standard of Review

[47]

It is well-settled that sentencing decisions attract a high level of deference in this court: "Absent error in principle, a failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor that has had an impact on the sentence imposed, appellate intervention is not justified": R. v. Saikaley (2017), 135 O.R. (3d) 641, 2017 ONCA 374, at para. 155; R. v. Lacasse, [2015] 3 S.C.R. 1089, 2015 SCC 64, at paras. 43-44.

[48]

In R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 91, the Supreme Court emphasized that deference is required, not simply due to the unique perspective enjoyed by the trial judge in hearing and seeing the evidence, and receiving the full submissions of counsel for the defence and the Crown, but also because the trial judge represents and speaks for the community that has suffered the consequences of the crime. The Supreme Court described, at para. 91, the determination of a just and appropriate sentence as 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.

See, also, R. v. Ramage, [2010] O.J. No. 2970, 2010 ONCA 488, 257 C.C.C. (3d) 261, at para. 72.

[49]

There is particular reason for deference in this case. While the appellant pleaded guilty, and the judge did not hear evidence as to guilt, he heard evidence on sentencing from the investigating officer, a member of the OPP's Child Sexual Exploitation Unit, concerning the search to identify the three child victims, the identification of the appellant and the discovery of the child pornography on his computers. The officer testified about the nature and extent of distribution of child pornography on the Internet, including the "S series", the location of secret and encrypted websites and user exchange groups and the existence of sadistic and degrading websites devoted to made-to-order sexual abuse of very young children and babies. The officer also testified about the appellant's involvement in this world of Internet child pornography where he aspired to be, and apparently was, a respected producer.

[50]

The sentencing judge also saw with his own eyes a selection of photographs and video clips, explained by the investigating officer, to demonstrate the abuse the appellant perpetrated on the three victims. This was the child pornography which he himself produced and distributed on the Internet. The judge also observed a selection of the unrelated sadistic, intrusive and degrading child pornography that was part of the appellant's collection.

[51]

In R. v. Kwok, [2007] O.J. No. 457, at para. 48, Molloy J. observed, in reference to sadistic child pornography, 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". Having seen and heard this evidence, the trial judge had an appreciation of the evidence that this court does not have.

[52]

One of the leading cases concerning deference in sentencing matters is the Supreme Court's decision in R. v. M. (L.), [2008] 2 S.C.R. 163, 2008 SCC 31, a case that bears some similarity to this. In M. (L.), the accused was convicted of sexually assaulting his four-year-old daughter and of making, distributing and possessing child pornography. His collection of 5,300 pictures and 540 videos of child pornography included many images of his sexual abuse of his daughter. He distributed the pornography for profit on the Internet. The trial judge imposed the maximum ten-year sentence for sexual assault and a consecutive sentence on the charges of possessing, making and distributing child pornography, which resulted in a global sentence of 15 years. The Quebec Court of Appeal reduced the global sentence from 15 to nine years. In restoring the sentence imposed by the trial judge, the Supreme Court again emphasized the need for deference in appellate review of sentence. LeBel J. observed, at paras. 14-15:

In its past decisions, this Court has established that appellate courts must show great deference in reviewing decisions of trial judges where appeals against sentence are concerned. An appellate court may not vary a sentence simply because it would have ordered a different one. The court must be "convinced it is not fit", that is, "that . . . the sentence [is] clearly unreasonable" (R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 46, quoted in R. v. McDonnell, [1997] 1 S.C.R. 948, at para. 15). This Court also made the following comment in R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 90:

. . . absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.

Owing to the profoundly contextual nature of the sentencing process, in which the trier of fact has broad discretion, the standard of review to be applied by an appellate court is one based on deference. The sentencing judge has "served on the front lines of our criminal justice system" and possesses unique qualifications in terms of experience and the ability to assess the submissions of the Crown and the offender (M. (C.A.), at para. 91). In sum, in the case at bar, the Court of Appeal was required -- for practical reasons, since the trier of fact was in the best position to determine the appropriate sentence for L.M. -- to show deference to the sentence imposed by the trial judge.

[53]

I will return to the issue of deference later in these reasons, when I consider the fitness of the sentence.

[54]

I turn to another important principle applicable to this case.

Primacy of Denunciation and Deterrence in Sentencing Adult Sexual Predators

[55]

It has been stated time and again, often with reference to this court's decision in R. v. D. (D.) (2002), 58 O.R. (3d) 788, 163 C.C.C. (3d) 471 (C.A.), that in the sentencing of adult sexual predators, the objectives of denunciation, general and specific deterrence and the separation of offenders from society must be paramount. In D. (D.), Moldaver J.A., as he then was, stated, at paras. 33-35:

Before going further, I wish to emphasize that the ranges which I have identified are not meant to be fixed and inflexible. On the contrary, sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases.

The overall message however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in s. 718 (a), (b) and (c) of the Criminal Code, commonly referred to as denunciation, general and specific deterrence, and the need to separate offenders from society, must take precedence over the other recognized objectives of sentencing.

We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at once our most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselves against predators like the appellant and as such, they make easy prey. People like the appellant know this only too well and they exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow.

[56]

The sentencing judge made specific reference to these principles.

Sentencing for the Production, Distribution and Possession of Child Pornography

[57]

This court has also frequently stated that denunciation and general deterrence are the primary principles of sentencing in offences involving child pornography. In our recent decision in R. v. Inksetter (2018), 141 O.R. (3d) 161, 2018 ONCA 474, Hoy A.C.J.O. stated, at para. 16:

By enacting s. 718.01 of the Criminal Code, Parliament made clear that denunciation and general deterrence must be primary considerations for any offence involving the abuse of a child. Further, this Court has repeatedly stated that denunciation and general deterrence are the primary principles of sentencing for offences involving child pornography: R. v. D.G.F., 2010 ONCA 27, 98 O.R. (3d) 241, at paras. 21-22, 30; R. v. Nisbet, 2011 ONCA 26, at para. 3; R. v. E.O., at para. 7; R. v. Stroempl, at para. 9.

[58]

Hoy A.C.J.O. observed that the evidence in that case reinforced the concern that increasing technological sophistication has facilitated the production and distribution of child pornography. She noted at para. 26 that the evidence established, as a general trend, that "[t]he images and videos keep getting more aggressive. The police are now identifying more images of 'baby rape.'"

[59]

In R. v. F. (D.G.) (2010), 98 O.R. (3d) 241, 2010 ONCA 27, 250 C.C.C. (3d) 291, Feldman J.A. noted, at para. 21, that for the previous two decades, courts had been on a "learning curve to understand both the extent and the effects of the creation and dissemination of child pornography over the internet and to address the problem appropriately". She noted that in cases involving the making of child pornography and child sexual abuse, significant custodial sentences had been imposed. She observed, at para. 22:

Unfortunately, the incidence of this behaviour appears to be increasing and expanding as technology becomes more sophisticated, encouraging the production of child pornography and greatly facilitating its distribution. The victims are innocent children who become props in a perverted show, played out for an ever-wider audience not only of voyeurs but of perpetrators.

[60]

This appeal demonstrates the chilling accuracy of those observations.

[61]

I now turn to the grounds of appeal raised by the appellant.

(2) Grounds of Appeal

[62]

I will begin by considering the grounds of appeal raised by the appellant.

Totality

[63]

The appellant submits that the trial judge failed to apply the totality principle, and that this failure led him to impose an unfit sentence of 18 years.

[64]

Totality is an expression of the principle, stated in s. 718.1 of the Criminal Code, R.S.C. 1985, c. C-46, that a sentence must be proportionate to the gravity of the offence and the responsibility of the offender. As well, s. 718.2(c) provides that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh: see, also, R. v. Ahmed (2017), 136 O.R. (3d) 403, 2017 ONCA 76, 346 C.C.C. (3d) 504.

[65]

Where an accused is ordered to serve consecutive sentences for multiple offences, the offences are not looked at in isolation. Nor is it simply a mathematical exercise. The cumulative sentence must not exceed the overall culpability of the offender: R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 42.

[66]

In R. v. B. (R.), [2014] O.J. No. 5625, 2014 ONCA 840, 327 O.A.C. 20, this court referred to the proper approach in such cases, at para. 8:

Second, from reading the sentencing proceedings, we think the sentencing judge followed the approach endorsed by this court for sentencing for multiple offences -- that is, first determine a global sentence and then assign sentences for each offence and designate each as concurrent or consecutive to fit within the global sentence. Trial counsel framed their submissions in terms of a global sentence. The defence argued for two to three years and the Crown for five to six years. The sentencing judge appears to have come down the middle.

See, also, R. v. Ahmed, at para. 85; R. v. Jewell, [1995] O.J. No. 2213, 100 C.C.C. (3d) 270 (C.A.), at p. 279 C.C.C.

[67]

In this case, as in B. (R.), the submissions of trial counsel focused on the total sentence. As I have noted, the Crown proposed 15 to 18 years and the defence proposed eight to ten years. However, at one point, defence counsel submitted that the sentence should not exceed 14 years (the maximum for sexual assault with a weapon). At another point, defence counsel acknowledged that the range for making and distributing child pornography was eight to 15 years, and expressly acknowledged that this was one of the worst offences:

You clearly have the worst offence in terms of assessing the offender and the offence. This is certainly one of the most serious offences of making and distributing child pornography and, in fact, this person is the perpetrator of the sexual violence in the creation of those images. So that makes this a very worst example of the offence.

[68]

Having received those submissions, the trial judge specifically adverted to the totality principle before determining the appropriate sentence. He said:

Each of the offences to which the accused has pled guilty provides for maximum and minimum sentences. Generally, maximum sentences are reserved for the worst offender committing the worst example of the offence. However, even where an accused might not qualify as the worst offender the maximum sentence might well be appropriate if it is a fit sentence in light of the gravity of the offence and the degree of responsibility of the accused. However, where the Court is imposing sentences for several offences it must have due regard for the principle of totality of sentence to ensure that the sentences to be imposed, taken together, do not result in a penalty that is unduly harsh and exceeds that which would be appropriate in all of the circumstances.

[69]

While the trial judge did not set out the global sentence before noting the individual sentences and whether the sentences were consecutive or concurrent, he stated the global sentence immediately thereafter, reflecting the effect of the sentences he had imposed. I do not regard this as reflecting a failure to consider and apply the totality principle.

[70]

Like M. (L.), this was a complex case in which the determination of the appropriate global sentence was the key issue on sentencing. In M. (L.), LeBel J. observed, 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.

[71]

In my view, the appellant's approach to totality is not consistent with the jurisprudence. He would view the sexual abuse inflicted on the victims at the low to mid range described in D. (D.). He says it was isolated, it did not involve full intercourse and it did not include violence or threats of violence. He submits the sentence should have taken this into account.

[72]

This is the opposite of totality, focusing on isolated features of some of the sexual interference offences. It ignores the fact that the appellant committed a breach of trust, and that the victims were two infants and a toddler. It ignores the sexual assault with a weapon. It ignores the fact that at least some of the abuse was committed in the course of making child pornography. It ignores the distribution and the perpetuation of the abuse on the Internet. It ignores possession of not only the pornography the appellant created, but also of the sadistic, degrading and intrusive pornography he obtained from other sources. It ignores his activities as a "producer" and his exhortation of others to do the same.

[73]

In my view, the sentencing judge properly applied the totality principle and considered these matters and others.

Lack of Remorse

[74]

The appellant says that the sentencing judge erred in considering lack of remorse as an aggravating factor. The respondent acknowledges that, to the extent the sentencing judge did so, it was an error. But the respondent submits that this error was inconsequential because it did not impact the sentence and therefore does not require this court to open up the sentencing and re-sentence the appellant based on first principles. For the reasons that follow, I agree with the respondent.

[75]

To put this issue in context, it is important to consider the several sources of evidence that were before the sentencing judge concerning the appellant's appreciation of the significance of his acts and their impact on his victims. There was evidence of the investigating police officer, the author of a pre-sentence report, the appellant's own statement prior to sentencing and victim impact statements from the children's mother and grandparent.

[76]

First, the pre-sentence report. The author of the report considered the appellant at high risk to re-offend due to his lack of insight and lack of remorse, among other things. The trial judge summarized this evidence as follows:

The author of the pre-sentence report indicated that while the appellant admitted the offences, he lacked insight into the offences: "he did not feel he hurt the children" stating that "he loves the [oldest] child, he would never hurt her." He made no reference to the other two children. At one point in the interview the appellant blames his brother and sister-in-law [the children's parents] for being bad parents and permitting the older child to wander around the house naked after a bath. The appellant also made contradictory statements about the benefits of counselling. The report continues that one of the investigating officers described the appellant as arrogant, self-centered and lacking in remorse. The officer described the case as "the worst, most sadistic case of child exploitation she has been involved in".

[77]

In a brief statement prior to sentencing, the appellant expressed sorrow for the hurt he had caused his family. However, nowhere in the appellant's statement did he recognize the physical and emotional trauma that he had inflicted on the victims and their family or the lasting implications of the publication of the abuse on the Internet.

[78]

Defence counsel in sentencing submissions acknowledged that the appellant did not appreciate the damage he had done to his child victims -- he "doesn't get the harm he caused to them" and it was as if he was born without an "empathy gene".

[79]

It appears that the sentencing judge's observations about the appellant's lack of remorse were made in the context of considering the appellant's lack of insight into his crimes and his risk of re-offending. In summarizing the last three of the ten aggravating factors he identified, the judge described:

(8) the accused's lack of insight into the harm he has visited upon his victims, either due to the lack of any moral compass or through willful disregard;

(9) the accused's lack of any genuine remorse; and

(10) his ambivalence with respect to the possible benefits of counselling, which even in the absence of any formal risk assessment certainly raises the spectre of his being at a high risk to re-offend.

[80]

These observations reflect, in part, the views expressed by the author of the pre-sentence report:

In this writer's opinion, the offender's criminal behaviour combined with his lack of remorse for the victims, his thought processes that he can have an intimate relationship with a child, moving to a location that could have provided him with an opportunity for more victims, his sense of notoriety within the pedophilic community, his lack of family supports in the community, and his self-centered, arrogant/ controlling behaviours make him a high risk to re-offend.

[81]

The judge also stated that while the appellant's guilty pleas were a mitigating factor, he considered them to be "more of an acceptance of reality in the face of overwhelming and compelling evidence than an expression of any genuine remorse". However, the judge noted that the appellant's guilty pleas precluded the possibility of the older child testifying, potentially risking further trauma.

[82]

The judge was entitled to reject the appellant's profession of sorrow or remorse. While he erred in saying that the lack of remorse was aggravating, the context in which the statement was made indicates that the primary purpose was to emphasize the appellant's lack of insight into his crimes and the impact on his risk of re-offending.

[83]

In R. v. Shah, [2017] O.J. No. 6141, 2017 ONCA 872, this court observed that lack of remorse may indicate a lack of insight and responsibility for the offence and may therefore be a relevant factor in considering the risk of re-offending. The court stated, at paras. 8-9:

Lack of remorse is not ordinarily a relevant aggravating factor on sentencing: R. v. Valentini, at para. 82. It cannot be used to punish the accused for failing to plead guilty or for having mounted a defence: Valentini, at para. 83; R. v. J.F., 2011 ONCA 220, at para. 84, 105 O.R. (3d) 161; aff'd on other grounds in 2013 SCC 12, [2013] 1 S.C.R. 565. Absence of remorse is a relevant factor in sentencing, however, with respect to the issues of rehabilitation and specific deterrence, in that an accused's absence of remorse may indicate a lack of insight into and a failure to accept responsibility for the crimes committed, and demonstrate a substantial likelihood of future dangerousness: Valentini, at para. 82; R. v. B.P. (2004), 190 O.A.C. 354 (C.A.), at para. 2.

In the present case, the placement of the phrase concerning the appellant's lack of genuine remorse is awkward. However, when the Reasons for Sentence are considered in their entirety, we do not agree that the trial judge treated the appellant's lack of genuine remorse as an aggravating factor. Certainly, there is no indication that the trial judge increased the sentence because the appellant lacked genuine remorse.

See, also, M. (L.), at para. 30.

[84]

Taken in context, the trial judge did not use the appellant's lack of remorse to increase the sentence. He properly used it to assess the risk of re-offending and the consequent need to isolate the appellant from society. If there was an error, it did not have an impact on the sentence imposed.

Consecutive Sentences for Count 3 and Count 7

[85]

The appellant submitted that the sentencing judge erred in imposing consecutive sentences for count 3 (possession of child pornography) and count 7 (sexual interference). He submits that the sexual interference was part and parcel of the possession of child pornography and that the imposition of a six-month consecutive sentence for the possession count was unjustified.

[86]

The appellant also submitted in his factum, relying on R. v. Jewell, that the three-year sentence for sexual interference was inappropriate because it was an inherent feature of the making of child pornography. He asserted that the effect is that he was sentenced twice for the same conduct and the two should have been treated as a single transaction.

[87]

I would not accept either submission. The sentencing judge's decision to impose a consecutive sentence is entitled to deference from this court: R. v. M. (P.), [2012] O.J. No. 1148, 2012 ONCA 162, 282 C.C.C. (3d) 450, at para. 56, referring to R. v. McDonnell, [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.

See, also, R. v. B. (P.J.), [2010] A.J. No. 145, 2010 ABCA 49, at para. 8.

[88]

The child pornography count included child pornography found on the appellant's computers that was in addition to the child pornography he himself produced. In total, his collection included some 577 still images and 243 movies. There was also evidence that the appellant may have used a software program to erase some of the files. The photographs and films recovered included images from what the investigating officer described as one of the most offensive and violent series of child pornography on the Internet. It included images and films of young children being sexually violated, abused and degraded. The investigating officer said that she had seen larger collections of child pornography, but in six years of working in the area the appellant's was the most intrusive collection she had ever had to categorize. She saw things that she had never seen before. The images showed vaginal and anal rape of young children, including a child of under two years of age whose arms and legs were bound with electrical tape and who was anally penetrated.

[89]

As well, some of the pornography produced by the appellant was unrelated to the charges of sexual interference.

[90]

While there was some overlap in the factual basis of the offences, they were by no means co-extensive. Moreover, the offences of sexual interference and making child pornography protect different interests. It was within the discretion of the sentencing judge to impose consecutive sentences.

[91]

I turn to the question of whether the sentence was unfit.

(3) Was the Sentence Excessive or Unfit?

[92]

In this section, I will consider whether the sentence was excessive or unfit. It is not necessary to repeat the aggravating circumstances identified by the sentencing judge and set out in detail above. Suffice to say that the circumstances of this case are unique and egregious. I will begin by identifying the relevant sentencing principles and how they impact on these offences. I will also examine sentences imposed in similar cases. Finally, I will consider whether the sentence was unfit, in light of the foregoing.

(a) Relevant Sentencing Principles

[93]

I have already referred to, and do not need to repeat, this court's jurisprudence on the primacy of denunciation and general and specific deterrence in the sentencing of adult sexual predators. I have also referred to the application of the same principles in sentencing for child pornography offences.

[94]

This is confirmed by s. 718.01 of the Criminal Code, which states that "[w]hen 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."

[95]

The circumstances of this particular case also bring into play a number of statutory aggravating circumstances, including (a) abuse of a person under the age of 18 years (s. 718.2(a)(ii.1)); (b) abuse of a position of trust (s. 718.2(a)(iii)); and abuse which has a significant impact on the victims, considering their ages and other personal circumstances (s. 718.2(a)(iii.1)).

[96]

Moreover, although the provision was not in effect at the time of the offences, it is appropriate to note that the Tougher Penalties for Child Predators Act, S.C. 2015, c. 23 increased mandatory minimum and maximum sentences for certain sexual offences against children. This included increasing the minimum sentence for possession of child pornography to one year and the maximum sentence to ten years, where the Crown proceeds by indictment. It also provided that the sentences for certain offences against children were required to be served consecutively. It added s. 718.3(7), which provides:

(7) When a court sentences an accused at the same time for more than one sexual offence committed against a child, the court shall direct

(a) that a sentence of imprisonment it imposes for an offence under section 163.1 be served consecutively to a sentence of imprisonment it imposes for a sexual offence under another section of this Act committed against a child; and

(b) that a sentence of imprisonment it imposes for a sexual offence committed against a child, other than an offence under section 163.1, be served consecutively to a sentence of imprisonment it imposes for a sexual offence committed against another child other than an offence under section 163.1.

[97]

In Inksetter, Hoy A.C.J.O. observed, at para. 24, that

. . . Parliament's legislative initiatives signal Canadians' concerns regarding the increasing incidence of child pornography. Sentencing decisions that precede these amendments must be viewed with some caution.

[98]

Parliament's concern is reflected in increasing judicial concern about the sexual abuse of children and the dissemination of images and films of child sexual abuse on the Internet, inciting others, like the appellant, to commit both offences.

[99]

Some 23 years ago, in Jewell, this court expressed concern about a child pornography subculture that it described as "unsettling and repugnant". Speaking for the court, Finlayson J.A. stated, at p. 277 C.C.C.:

These appeals confront the court with the pressing issue of how to deal with offenders such as the appellants who prey on young persons, boys in this case, for no other purpose than their own sexual gratification. The court must be responsive to emerging concerns that pornography, particularly child pornography, has become an area of criminality that increasingly menaces our young people and threatens our values as a society. Because pornography now can be so easily prepared and disseminated through relatively inexpensive means, such as the hand-held video camera used in the case under appeal, it has emerged as a very real problem in our society.

[100]

That case was decided before the Internet was easily accessible to child pornographers. Even in D. (D.), decided 16 years ago when the Internet was in its relative infancy, this court could not foresee that a new category of child sexual abuse was emerging -- made-to-order sadistic sexual abuse and degradation of young children and babies, broadcast into the darkest corners of the Internet, shared with communities of abusers and consumers, creating an ongoing cycle in which the publisher feeds not only a demand but creates his own supply. A single act of abuse is repeated, violating the victim again and again, promoting new abuse of new victims.

[101]

This was expressed in eloquent and moving words by Ratushny J. in R. v. Lynch-Staunton, [2012] O.J. No. 313, 2012 ONSC 218 (S.C.J.), at paras. 49 and 54:

This [child sexual abuse] is the source of the extreme harm caused by the possession and distribution of child pornography. It starts with innocent children who have been physically and emotionally abused by acts of sexual violence committed by depraved persons interested in satisfying their own deviant urges and in having their actions filmed and shown to others. This starts the cycle of abuse and the sexual victimization of these children and of other children continues so as to satisfy the "business" of production and distribution of child pornography for the curious viewer, the deviant viewer and the depraved viewer.

It is the "business" of the possession of child pornography that perpetuates the cycle of the physical and mental abuse of children, even though the possessor is rarely, and certainly not in the present case in terms of the images, the original abuser. As Detective Coakley testified, it is the "new" children being portrayed in child pornography images that attract the most demand in terms of the "trading card mentality" surrounding collections of child pornography. This "value" only means that new and real children are being abused to satisfy the demand.

[102]

In R. v. Nisbet, [2011] O.J. No. 101, 2011 ONCA 26, at para. 1, this court observed that Internet child pornography is increasing:

Sadly, possession of child pornography facilitated through the internet is on the rise. It is an abhorrent crime that victimizes the most vulnerable members of our society and hence the need for sentences to reflect denunciation and deterrence.

[103]

The fact that Internet child pornography is on the rise means that sexual abuse of children for the purpose of creating child pornography is almost certainly on the rise.

[104]

As this case demonstrates, the detection and prosecution of such crimes is difficult. The offences take place in private and are perpetrated against victims who have no voice. Images are traded, encrypted, in dark and anonymous corners of the Internet using software designed to protect both the supplier and the consumer. Even if police are able to access the images, tracing the perpetrators and producers -- and, most importantly, rescuing the victims -- is enormously challenging and depends on extraordinarily skillful and patient investigation as well as some degree of luck.

(b) Other Cases

[105]

The parties have referred us to the sentences in a number of cases involving a combination of sexual offences and the possession, creation or distribution of child pornography. I will briefly summarize some of the cases that appear to me to be of most assistance. I do not propose to distinguish each case from this one, although I will make some general comments following this review.

[106]

In R. v. Cardno, [2013] B.C.J. No. 889 (Prov. Ct.), the accused was convicted of sexual touching, sexual touching by a person in a position of trust, sexual assault, sexual exploitation and making child pornography. The offences took place over 13 years and were committed on prepubescent boys the accused had befriended. There were hundreds of incidents and thousands of pictures documenting the abuse. The accused was sentenced to a total of nine years' imprisonment: three years for making child pornography and six years consecutive for the sexual offences.

[107]

In R. v. Pike, [2008] O.J. No. 4001, 2008 ONCJ 484, the accused pleaded guilty to and was convicted on eight counts of sexual interference, one count of making child pornography and one count of possession of child pornography. He abused eight young male victims between the ages of two to 14, whom he had met through babysitting, coaching and other activities, over the course of four years. At all times, the accused was in a position of trust towards the boys. He was found in possession of thousands of images and hundreds of movies and stories depicting the sexual abuse of his victims and other children. There was evidence of ongoing psychological trauma to the victims. He was sentenced to 14 years' imprisonment, before credit for pre-trial custody.

[108]

In R. v. Gilbert, [2011] N.B.J. No. 76, 2011 NBPC 10, the accused pleaded guilty to 11 counts of making child pornography, possessing child pornography, sexual assault (including unprotected anal sex), sexual interference and sexual exploitation committed against six male children between the ages of four and 16, over an 11-year period. The accused abused a position of trust and groomed some of the victims. He was sentenced to 15 years' imprisonment.

[109]

In R. v. C. (D.), [2016] M.J. No. 141, 2016 MBCA 49, 336 C.C.C. (3d) 366, the court upheld a 16-year sentence for an offender who, over a three-year period, sexually abused his nine-year-old daughter and four sons, who ranged in age from four to eight years. He recorded the abuse and posted some of it on a website used for sharing child pornography. He pleaded guilty to sexual touching, invitation to sexual touching, creating child pornography, possession of child pornography and distribution of child pornography. It is noteworthy that the sentencing judge would have imposed a sentence of 22.5 years, but for the application of the totality principle.

[110]

In R. v. Snook, [2013] N.B.J. No. 334, 2013 NBPC 17, an accused was sentenced to 18 years' imprisonment after pleading guilty to 46 offences committed against 17 young male victims (including his foster child) over a 12-year period, including making child pornography, making child pornography available and possession of child pornography. He was an elected municipal official who participated in programs for underprivileged youth.

[111]

In R. v. H. (K.D.), [2012] A.J. No. 816, 2012 ABQB 471, an offender was convicted of sexually abusing four child victims, including his two biological children, over a nine-year period. Their ages ranged from approximately six to 13 when the abuse began. The abuse included bondage, sadism and bestiality.

[112]

In R. v. M. (L.), the Supreme Court of Canada restored the sentence of 15 years' imprisonment imposed by the trial judge on the accused, who had abused two child victims, one of whom was his daughter, over a period of two years when she was between two and four years old. He had distributed images of the abuse, for profit, over the Internet to a child pornography network. The accused had a previous record for sexual assaults of minors and there were numerous aggravating factors. He pleaded guilty to possession and distribution of child pornography and was convicted as well of making child pornography and sexual assault. He was assessed at a high rate to re-offend.

[113]

In this court's decision in R. v. F. (D.G.), referred to earlier, the accused pleaded guilty to seven sexual offences, including two counts of sexual assault of his four-year-old daughter, three counts of making child pornography in relation to his daughter, one count of possession of child pornography, and one count of distributing child pornography. He had participated in an Internet chat room devoted to the exchange of images and films of child sexual abuse. The accused explained that he decided to sexually abuse his daughter after receiving encouragement online from other members of the chat room. He was apprehended shortly after transmitting a live sexual assault of his own daughter to an undercover police officer.

[114]

This court set aside an effective four-year sentence as manifestly unfit and imposed a sentence of seven years, which was the sentence the Crown had requested at trial and the basis on which the guilty plea had been entered. The Crown on appeal contended that the range for the offences was between seven and ten years. Feldman J.A. noted, at para. 29, that in M. (L.) the Supreme Court upheld the 15-year sentence imposed by the trial judge, making it "clear that the range can reach well into the double-digit level, depending on the number of offences and the confluence of circumstances that may exist in each case".

[115]

It seems clear that the sentence imposed by this court in F. (D.G.) was reflective of a plea agreement and would undoubtedly have been higher in the absence of that consideration.

(c) Conclusion: The Sentence Was Fit

[116]

The foregoing summary of some of the case law does not begin to describe the gravity of the offences or the impact on the child victims. Nor does it readily permit comparisons between this case and others. The myriad and complex ways in which such crimes are committed makes it difficult to compare one case to others and to identify whether one offender deserves a greater or lesser sentence than another.

[117]

In comparison to some of the cases referred to above, this case might be described as an anomaly. The abuse took place over a relatively shorter time period than some, there were fewer victims than some, and the abuse did not include full intercourse or violence extrinsic to the abuse. On the other hand, the circumstances of this case are, to some extent, sui generis -- in a class of their own, so to speak. These included the very young age of the victims; sexual assault with a weapon and objects causing evident distress; distribution of the images of the abuse on the Internet; the appellant's boastfulness, his exhortation of others to prove themselves with "private trades"; his portrayal of himself as a "producer" and a "decent" member of the "community"; and the evidence of the appellant's child pornography collection, with its focus on sadistic and degrading abuse of young children.

[118]

I return to the issue of deference. The Supreme Court's decision in R. v. Lacasse, above, reminds us that deviation from a sentencing range is not, in itself, a basis for appellate intervention. The court stated, at para. 11:

This Court has on many occasions noted the importance of giving wide latitude to sentencing judges. Since they have, inter alia, the advantage of having heard and seen the witnesses, sentencing judges are in the best position to determine, having regard to the circumstances, a just and appropriate sentence that is consistent with the objectives and principles set out in the Criminal Code in this regard. The fact that a judge deviates from the proper sentencing range does not in itself justify appellate intervention. Ultimately, except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit.

[119]

The court also stated, at para. 58, that a sentence outside the range may sometimes be appropriate:

There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. LeBel J. commented as follows on this subject:

A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred.

[120]

Sadistic sexual assault of twin babies and a very young child by a trusted caregiver is amongst the most grievous crimes imaginable. To record such abuse and trade it on the Internet compounds the injury to the victims. All the more so when the offender does so for the stated purpose of attaining notoriety and "respect" so that others will share their own sadistic abuse of children. And the more horrific the abuse, the more it is valued in that community. The appellant's violation of his victims is repeated every time the images are viewed on the Internet, where they cannot be erased and will likely reside in perpetuity. And, as the sentencing judge observed, the victims, particularly S, whose face is shown, may be further traumatized by the knowledge that these images and films could surface in their personal lives at any time.

[121]

As the sentencing judge noted, this is not the only way the victims have been and will be affected. Child sexual abuse can cause enduring, even lifelong, psychological harm, trauma and suffering. The sexually abused child may become incapable of forming loving and caring relationships. His or her family members may suffer the indirect consequences of the abuse.

[122]

Courts must continue to denounce and deter such conduct in the strongest possible terms. The only way to do so is to send a message to the offender, and to like-minded individuals, that they will pay a very heavy price for their conduct.

[123]

The sentence in this case sends that message. It needed to do so. While the sentence was at the high end of the range for such offences, and possibly in excess of the range, I am not satisfied that it was the product of an error in principle or of the failure to consider or over-emphasis of a relevant factor. Nor is the sentence demonstrably unfit.

D. Disposition

[124]

For these reasons, I would dismiss the appeal.

Appeal dismissed.

Appendix A

Ancillary Orders:

• a DNA order;
• an order to comply with SOIRA [Sexual Offender Information Registration Act] for life;
• a s. 743.21 order prohibiting communication with any of the victims, their mother and grandparents;
• a s. 161(1)(a), (b), (c) and (d) order for life;
• a forfeiture order; and
• a victim fine surcharge of $1,400.

End of Document