Her Majesty the Queen v. S.C.

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

Ontario Reports

Court of Appeal for Ontario

Sharpe, Benotto and D.M. Brown JJ.A.

March 13, 2019

145 O.R. (3d) 711 | 2019 ONCA 199

Case Summary

Criminal law — Sentencing — Accused touching and photographing sleeping toddlers' genitals while employed by daycare centre — Accused also possessing massive collection of graphic child pornography — Trial judge sentencing accused to six years' imprisonment for eight counts of sexual assault and imposing consecutive sentences of one year for eight counts of making child pornography and two years for one count of possessing child pornography — Mandatory total minimum sentence for all counts being eight years — Nine-year sentence affirmed on appeal — Trial judge not erring by failing to impose consecutive sentences on all counts pursuant to s. 718.3(7) of Criminal Code — Section 718.3(7) subject to totality principle — Trial judge not failing to take into account gravity of offences and accused's egregious breach of trust — Criminal Code, R.S.C. 1985, c. C-46, s. 718.3(7).

The accused pleaded guilty to eight counts of sexual assault, eight counts of making child pornography and one count of possession of child pornography. While employed by a daycare centre as an early childhood educator, he touched and photographed the genitals of sleeping toddlers. His computer was found to contain a massive amount of graphic and highly disturbing child pornography. He was 38 years old at the time of sentencing, had no criminal record and was remorseful and amenable to treatment. The trial judge sentenced the accused to nine years' imprisonment, consisting of six years for the eight counts of sexual assault, one year consecutive for the eight counts of making child pornography and two years consecutive for possession of child pornography. The Crown appealed, arguing that the sentence failed to satisfy the totality principle, ran afoul of s. 718.3(7) of the Criminal Code because consecutive sentences were not imposed on some counts, overemphasized some mitigating factors and was demonstrably unfit.

Held, the appeal should be dismissed.

Section 718.3(7) of the Code is subject to the totality principle. It must be read together with s. 718.2(c), which states that "where consecutive sentences are imposed, the combined sentences should not be unduly harsh". The mandatory minimum sentences applicable to this case by virtue of s. 718.3(7) totalled eight years. It was open to the trial judge to take into account the totality principle as a qualification on s. 718.3(7) when imposing the sentences for the other offences for which the mandatory minimums did not apply.

The trial judge was properly aware of the gravity of the offences and the legal principles bearing upon the appropriate sentence. He observed that the primary sentencing objectives in the circumstances were denunciation and deterrence, and described the accused's conduct as "an egregious breach of trust". Although sentences for sexual assault involving young children and child pornography have been increasing, this sentence is in light with that pattern. The sentence was not demonstrably unfit.

[R. v. S. (J.) (2018), 142 O.R. (3d) 81, [2018] O.J. No. 4095, 2018 ONCA 675, distd]

Other Cases Referred To

Statutes Referred To

Criminal Code, R.S.C. 1985, c. C-46, ss. 83.26, 718.1, 718.2(c), 718.3(7)

Proceedings

APPEAL by the Crown from the sentence imposed by D. McLeod J. of the Ontario Court of Justice on March 9, 2018.

Counsel:

Lisa Joyal, for appellant
Margaret Bojanowska, for respondent

Decision

[1] Introduction

SHARPE J.A.: — The Crown appeals the nine-year sentence imposed on the respondent following his guilty plea to eight counts of sexual assault, eight counts of making child pornography and one count of possession of child pornography. The sexual assault and making child pornography offences were committed against young children under the respondent's care in a daycare centre. The Crown argues that the sentence the trial judge imposed failed to satisfy the principle of totality, ran afoul s. 718.3(7) of the Criminal Code, R.S.C. 1985, c. C-46 because consecutive sentences were not imposed on some counts, overemphasized some mitigating factors and was demonstrably unfit. The Crown asks us to impose a sentence of 15 years.

[2] Disposition

For the following reasons, I would dismiss the appeal.

The Offences

[3] Facts

In the course of a peer-to-peer child pornography investigation, the Peel Regional Police obtained a warrant and conducted a search of the respondent's residence. The respondent's computer was found to contain a massive amount of graphic and highly disturbing child pornography involving young prepubescent children, some in the form of still images and some in the form of videos. The police also found a folder labelled "I Me Mine" containing close-up images and videos taken by the respondent of the genitals of eight female toddlers between the ages of two and three years. Some images revealed male fingers touching the genital area of the children. In an agreed statement of facts filed on the sentencing proceeding, the respondent admitted that during the toddler's nap period when he was supervising them on his own, he pulled down their clothing and undergarments to expose their genitals and took close-up photographs with his phone while touching their genitals with one of his fingers.

The Offender

[4] Background

At the time of sentencing, the respondent was 38 years old, single and had no prior criminal record. He lived with his mother and had worked at several daycare centres as an early childhood educator for a number of years. He maintained that the children were asleep when he sexually assaulted them and he filed written apologies for his conduct. He admitted that he had an unhealthy affection for the children, that he was addicted to child pornography and that he had become obsessed with acquiring more and more images.

Sentencing Proceedings

[5] Submissions

Sentencing submissions were made over the course of several days.

[6] Victim Impact

Parents of the child victims read victim impact statements indicating the profound effect these offences had upon them. The trial judge aptly summed up the effect of the victim impact statements in his reasons:

A common theme that resonated through the various messages was real and palpable -- emotional destruction of trust. The statements were riddled with emotional moments that run the gamut from self-doubt and guilt to anger, and feelings of betrayal.

[7] Crown and Defence Positions

The trial Crown argued that a sentence of 17 to 19 years was the appropriate range but recommended a sentence of 15 years' imprisonment to take into account the principle of totality and mitigating circumstances. The respondent asked for a global sentence of six years.

[8] Trial Judge's Sentence

The trial judge gave oral reasons for imposing a global sentence of nine years, which comprised of six years for the sexual assaults, one year for making child pornography and two years for possession of child pornography.

Issues

[9] Crown's Arguments

The Crown raises the following issues on appeal:

Did the trial judge err in his application and interpretation of the principle of totality?
Did the trial judge err by failing to impose consecutive sentences pursuant to s. 718.3(7) of the Criminal Code?
Did the trial judge err in his assessment of "mitigating" factors?
Did the trial judge impose a sentence that was demonstrably unfit?

Analysis

[10] Framework

As I see it, there is a substantial overlap between issues 1, 2 and 4. In my view, the logical starting point for analysis of these issues is to consider the application of s. 718.3(7), then to consider the issues of totality and the fitness of the sentence, and finally to ask if any error was made with respect to the mitigating factors.

Criminal Code, s. 718.3(7)

[11] Statutory Provision

Section 718.3(7), introduced as part of the Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, provides:

718.3(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.

[12] Interaction with Other Principles

This provision must be read alongside the fundamental sentencing principle expressed in s. 718.1 which states: "[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender" and the totality principle enshrined in s. 718.2(c) which states: "where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh".

[13] Mandatory Minimums

Section 718.3(7) came into force on July 17, 2015. The offences with which we are concerned in this appeal straddle that date. It is common ground that s. 718.3(7) applies to four pairs of counts of sexual assault and making child pornography against four victims. Each of those offences carries a minimum sentence of one year. In addition, the one count possession of child pornography is covered by s. 718.3(7). The mandatory minimum sentence that attaches to that offence was struck down by this court in R. v. John (2018), 142 O.R. (3d) 670, [2018] O.J. No. 4495, 2018 ONCA 702. As a result, the total of the mandatory minimum sentences to which s. 718.3(7) applies come to eight years.

[14] Pre-Dating Offences

Four pairs of counts for sexual assault and making child pornography pre-date s. 718.3(7). The mandatory minimum sentence for those offences total eight years but they are not governed by the requirement for consecutive sentences under s. 718.3(7) and therefore can be imposed concurrently.

[15] Crown's "Illegality" Argument

I do not accept the Crown's submission that the sentence imposed by the trial judge was "illegal" because of s. 718.3(7) for the following reasons.

[16] Mandatory Minimums Met

First, the total number of years required by mandatory minimums comes to eight years, well within the nine years imposed by the trial judge.

[17] Totality Principle Applies to s. 718.3(7)

Second, the Criminal Code does not mandate a purely mechanical approach whereby all sentences governed by s. 718.3(7) must be simply added up and imposed. Both at trial and in oral argument before us, the Crown properly conceded that s. 718.3(7) is subject to the totality principle. Section 718.3(7) must be read together with s. 718.2(c) stating that "where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh". In R. v. Ahmed (2017), 136 O.R. (3d) 403, [2017] O.J. No. 384, 2017 ONCA 76, 346 C.C.C. (3d) 504, this court dealt with s. 83.26 of the Criminal Code, which provides that a sentence other than one of life imprisonment, imposed on a person for a terrorism offence, must be served consecutively to any other punishment imposed on the person "for an offence arising out of the same event or series of events". This court, following the Supreme Court of Canada in R. v. Khawaja, [2012] 3 S.C.R. 555, [2012] S.C.J. No. 69, 2012 SCC 69, stated, at para. 79:

The totality principle is a particular application of the general principle of proportionality. It requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. Following M.(C.A.), the sentencing provisions in the Criminal Code were amended. Proportionality was included as the fundamental principle of sentencing (s. 718.1) and sentencing courts were instructed to take into consideration the totality principle when imposing consecutive sentences to ensure that the combined sentence is not unduly long or harsh (s. 718.2(c)). The totality principle applies in sentencing persons convicted of terrorism offences.

(Citations omitted)

[18] Application to This Case

As I have noted, the mandatory minimum sentences applicable in this case by virtue of s. 718.3(7) total eight years. It was open to the trial judge to take into account the totality principle as a qualification on s. 718.3(7) when imposing the sentences for the other offences for which the mandatory minimums did not apply.

[19] Trial Judge's Awareness of s. 718.3(7)

Nor do I agree that the trial judge erred in law by failing to advert specifically to s. 718.3(7) in his reasons for sentence. The trial judge was certainly alive to the possible application of 718.3(7) as the provision was the subject of detailed consideration in the sentencing submissions of counsel. Moreover, the trial judge did refer to 718.3(7) indirectly when reviewing the totality principle, by citing the passage I have quoted above from Ahmed.

[20] Sentencing Methodology

The trial judge did not take as his starting point the determination of the appropriate sentence for each individual count and then add up all the count by count sentences to determine the global sentence, but rather identified the gravity of the conduct overall and then determined the total sentence that should be imposed and then apportioned it to the various offences. In so doing, he followed the practice approved by this court in R. v. Jewell, [1995] O.J. No. 2213, 100 C.C.C. (3d) 270 (C.A.), at p. 279 C.C.C.; R. v. B. (R.), [2014] O.J. No. 5625, 2014 ONCA 840, 327 O.A.C. 20, at para. 8; R. v. S. (J.) (2018), 142 O.R. (3d) 81, [2018] O.J. No. 4095, 2018 ONCA 675, at para. 66; and R. v. Ahmed, at para. 85. It would be an error in taking that approach to ignore the effect of s. 718.3(7). While it would have been preferable for the sentencing judge to specifically address s. 728.3(7), I am satisfied from reading the record as a whole including the sentencing submissions, that the trial judge was alive to the provisions of 718.3(7).

[21] Conclusion on s. 718.3(7)

For these reasons, I conclude that the trial judge did not err by failing to impose consecutive sentences for all offences pursuant to s. 718.3(7) of the Criminal Code.

Totality and Fitness of the Sentence

[22] Crown's Argument

The Crown argues that the trial judge erred in his interpretation and application of the principle of totality and imposed a sentence that was demonstrably unfit. The Crown argues that a sentence of nine years' imprisonment failed to address the cumulative gravity and moral blameworthiness of the respondent's conduct.

[23] Gravity of the Offences

There can be no question that these were very serious offences that called for a substantial prison sentence. The victims of the sexual assault and making child pornography were defenceless toddlers. The respondent was entrusted with their care. He abused his position of trust to satisfy his sexual cravings. The victim impact statements powerfully demonstrate the harm caused to the families of the victims. The quantity of child pornography in the appellant's possession was massive. The content was disturbing in the extreme. It depicted scenes of sexual abuse on a very large number of children who were the victims of an entirely evil industry.

[24] Sentencing Objectives

It is well-established in the case law that crimes of this nature call for sentences that emphasize deterrence and denunciation: see R. v. S. (J.).

[25] Trial Judge's Awareness

In my view, the trial judge's reasons indicate proper awareness of both the gravity of the crimes for which the appellant was being sentenced and the legal principles bearing upon the appropriate sentence. He observed that his "primary consideration should be given the objectives of denunciation and deterrence" and that the "gravity of the offence is properly the central factor". He reviewed the victim impact statements and was fully aware of the devastating impact of the crimes. He described the respondent's conduct as "an egregious breach of trust" and his crimes as "heinous".

[26] Application of Sentencing Principles

The trial judge described the harm caused by the appellant and the message that had to be sent by the sentence imposed by referring to and applying the statement of this court in R. v. D. (D.) (2002), 58 O.R. (3d) 788, [2002] O.J. No. 1061 (C.A.), at para. 45:

The appellant was prepared to risk the lives of innocent children to satisfy his sexual cravings. His conduct was reprehensible and it must be condemned in the strongest of terms. The harm occasioned by the appellant and others like him 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!

[27] Comparison to R. v. D. (D.)

I do not agree with the Crown's submission that the trial judge erred by placing reliance on R. v. D. (D.). In that case, this court upheld a sentence of nine years and one month for the sexual abuse of four young boys over a seven-year period. The offender had abused a position of trust with families, groomed the boys over a lengthy period and regularly engaged in all manner of sexual activity including anal intercourse. He used violence and threats of violence to compel compliance and keep the boys quiet. Despite the differences in these crimes, the passage the trial judge quoted from R. v D. (D.) was nevertheless pertinent to sentencing on sexual offences involving children. Further, given the gravity of the crimes committed in R. v. D. (D.) against children, I fail to see why this case calls for a longer sentence.

[28] Sentencing Trends

I agree with the Crown that sentences for sexual offences involving young children and child pornography have been increasing: see R. v. S. (J.); R. v. M. (L.), [2008] 2 S.C.R. 163, [2008] S.C.J. No. 31, 2008 SCC 31. However, I am satisfied that the nine-year sentence imposed by the trial judge is consistent with that pattern. The 18-year sentence upheld by this court in S. (J.) post-dated the sentencing proceedings in this case and there are several distinguishing factors. First, that case involved an offender who recorded acts against his three infant nieces of attempted anal and vaginal penetration with an erect penis, digital penetration, penetration with a marker, digital masturbation and cunniligus. That conduct is even more disturbing than the conduct at issue here. Second, that case did not involve this court overturning a sentence imposed at trial and it is clear from the court's reasons that deference to the sentencing discretion of the trial judge was a primary factor. Third, the court observed, at para. 123, that the 18-year sentence was "at the high end of the range for such offences, and possibly in excess of the range" but that it was not the product of an error in principle. The refusal of this court to set aside the 18-year sentence does not establish 18 years as a benchmark for future cases.

[29] Fitness of Sentence

The sentence in this case was not demonstrably unfit.

Mitigation

[30] Crown's Submission on Mitigating Factors

The Crown submits that the trial judge erred in determining that certain factors were mitigating, citing the following paragraph from his reasons:

[S.C.] is a first-time offender. He has [sic] the court time, and resources have been saved. He appears to be a good candidate for rehabilitation and none of the victims suffered physical injury or required mental treatment. No physical violence was used by [S.C.] during the course of the sexual assaults of the eight victims. There was no evidence that the downloads were unusually brutal.

[31] Crown's Arguments on Mitigation

The Crown submits that the lack of need for medical treatment is not a mitigating factor, that sexual assaults are inherently violent and that while brutality can be an aggravating factor, the lack of brutality is not mitigating.

[32] Context of Trial Judge's Reasons

In my view, the passage quoted by the Crown must be read together with the immediately preceding paragraph where he refers to the aggravating factors. In that paragraph he recites the massive amount of pornography found on the appellant's computer, the fact that the assaults took place while the children were sleeping, that the respondent was in a position of trust, the number of victims and their young age and the potential for latent psychological damage.

[33] Assessment of Mitigating Factors

I have already referred to the passages from the trial judge's reasons that indicate his awareness of the gravity of the offences. The Crown may be correct in pointing out that some of the points listed under the heading "mitigating factors" were not strictly speaking mitigating. However, they were relevant to the assessment of the gravity of the respondent's conduct and, when read in the context of the reasons as a whole, do not reveal any legal error.

[34] Significant Mitigating Factors

I add that there were significant mitigating factors. The respondent pleaded guilty thereby saving the victims, their families and the system the cost and trauma of a trial. The respondent was a first offender and he expressed remorse. He has faced the fact that he has a serious problem that needs to be addressed and he has expressed a willingness to undergo treatment. The institutional records filed as fresh evidence, which I would admit, indicate that he is ready and willing to follow programs that will assist in rehabilitation.

Conclusion

[35] Final Analysis

As the Crown acknowledges in its factum, it is well established that sentencing decisions attract a high level of deference. Absent an error in principle or a failure to consider a factor relevant to an aggravating or mitigating factor, this court is not entitled to intervene: R. v. Lacasse, [2015] 3 S.C.R. 1089, [2015] S.C.J. No. 64, 2015 SCC 64, at paras. 43-44. The trial judge recognized that deterrence and denunciation were the primary sentencing objectives in this case. As a consequence, he imposed a very substantial penitentiary sentence of nine years. He did so to denounce the appellant's conduct and to deter the appellant and others from committing offences against children in the future. That sentence took into account the gravity of the respondent's conduct and moral culpability. The message the nine-year sentence sent is loud and clear. I am not persuaded that the longer sentence sought by the Crown at trial and on appeal would appreciably add to the deterrent effect of the sentence that was imposed. A longer sentence could discourage guilty pleas and undermine the interest of rehabilitation. In my view, the trial judge was entitled to conclude that the sentence sought by the Crown would not be consistent with the principles of proportionality and totality.

[36] Disposition

For these reasons, I would dismiss the appeal.

Appeal dismissed.

End of Document