WARNING The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18 .

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

COURT OF APPEAL FOR ONTARIO

DATE: 20210706

DOCKET: M52571 (C69544)

Brown J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen Respondent

and

Arthur Rule Applicant

Counsel: Fredrick R. Schumann, for the applicant Adam Wheeler, for the respondent

Heard: June 18, 2021 by video conference

ENDORSEMENT

A. OVERVIEW

[1] The applicant, Arthur Rule, applied for leave to appeal his custodial sentence and bail pending appeal. The following endorsement was read at the end of the hearing on June 18, 2021:

For reasons to follow, the application for leave to appeal sentence and the application for bail pending appeal are granted. The terms of bail shall be those in the draft order submitted by counsel.

[2] These are those reasons.

[3] Mr. Rule is 71 years old. He pleaded guilty to three counts of possessing and one count of accessing child pornography, contrary to ss. 163.1(4) and (4.1) of the Criminal Code. By reasons dated May 4, 2021, the sentencing judge concluded that the appropriate sentence was a term of imprisonment for a period of 22 months, concurrent on all counts, followed by probation for three years. She deferred the imposition of sentence until June 18, 2021.

[4] Mr. Rule applied for leave to appeal sentence and, if leave were granted, bail pending appeal. The Crown did not oppose Mr. Rule’s application for leave to appeal his sentence: Criminal Code, s. 675(1)(b). I therefore granted leave to appeal.

[5] The contested matter at the hearing was Mr. Rule’s application for bail pending appeal: Criminal Code, s. 679(4). The Crown acknowledged that Mr. Rule’s sentence appeal is not frivolous. However, it opposed the application on two grounds: (i) the sentence appeal lacks sufficient merit that, in the circumstances, it would not cause unnecessary hardship if the applicant were retained in custody; and (ii) the applicant has not demonstrated that his detention is not necessary in the public interest.

B. BACKGROUND

[6] The applicant is a retired teacher who lives in Kenora. Prior to his conviction on these charges, he had no criminal record.

[7] A police investigation resulted in the search of Mr. Rule’s home and the seizure of his computer. As described by the sentencing judge, at paras. 9-11:

The items seized from Mr. Rule’s computer revealed a vast collection of images and videos of children being sexually abused and exploited. Over 100,000 images and videos were examined by the OPP child sexual exploitation unit. The police categorized 22,429 images, 204 movies or videos and determined these images fit the definition of child pornography. 92,984 images were not categorized, but the Crown noted these items would have met the criteria for child pornography.

Approximately two thirds of the material focus on the genitals of the children depicted. One third of the images depict persons under the age of 18 engaged in graphic sexual activity. There appeared to be a preponderance of images involving prepubescent girls and less so of boys under age 18. The additional 92,000 + images were not categorized because of the time and resources needed to fully examine the contents of Mr. Rule's extensive collection.

In addition, the police noted that Mr. Rule's screen saver on the computer was an image of a prepubescent girl, naked with her legs spread. He had the other images and videos saved under various folders on his computer.

C. ANALYSIS

[8] Under Criminal Code s. 679(4)(a), the applicant must establish that his appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if he were detained in custody. The extent of the inquiry into the merits of the appeal under that criterion has variously been described as asking whether the appeal has “arguable merit”, “some hope or prospect of success”, or “it is more probable than not that a successful sentence appeal would result in a significantly lower sentence”: R. v. McIntyre, 2018 ONCA 210, at para. 24; R. v. Hewitt, 2018 ONCA 293, at para. 18.

[9] In his notice of appeal, the applicant argues that the custodial sentence of 22 months was demonstrably unfit for two main reasons: (i) the sentencing judge erred in not granting a conditional sentence; and (ii) she disregarded the evidence of Mr. Rule’s health problems, the care he requires, and the hardship incarceration would impose.

[10] On the issue of the availability of a conditional sentence, the Crown concedes that the sentencing judge mis-stated the law when she wrote, in para. 47:

Section 163.1 (4) (a) of the Criminal Code sets out a range of punishment for offenders on indictment to be a minimum of 12 months to a maximum of 10 years imprisonment for accessing child pornography. The Criminal Code also sets out that conditional sentences are not available for offenses under this section. I have reviewed the jurisprudence provided by counsel, all the relevant post- Friesen jurisprudence, and the amendments to the Criminal Code, in the result, I cannot entertain a conditional sentence here.

[11] In fact, the former 6-month minimum for possession of child pornography was struck down by this court in R. v. John, 2018 ONCA 702, 142 O.R. (3d) 670, as violating s. 12 of the Canadian Charter of Rights and Freedoms. As well, in subsequent cases, in light of John the Crown has conceded the likely unconstitutionality of the minimum sentence for accessing child pornography in Criminal Code s. 163.1(4.1): see, for example, R. v. Rytel, 2019 ONSC 5541, at para. 8. As this court observed in R. v. M.N., 2017 ONCA 434, 37 C.R. (7th) 418, at para. 40, the identical penalties for accessing and possession of child pornography indicate a legislative view that the moral culpability for the two offences is the same.

[12] Although the sentencing judge returned to the issue of the availability of a conditional sentence later in her reasons, she proceeded on the basis that a conditional sentence would offend the proportionality principle and not constitute a fit sentence because of the requirements set out in the Criminal Code, the nature of the offences, and recent jurisprudence: at para. 57.

[13] The applicant submits that the sentencing judge failed to adequately consider a conditional sentence as an alternative to incarceration, as required under the statutory principle of restraint in s. 718.2 (e) of the Criminal Code. Given that her analysis got off on the wrong legal footing, there certainly is merit in this submission.

[14] Indeed, there is sufficient merit that, in the circumstances, it would cause Mr. Rule unnecessary hardship if he were detained in custody. Mr. Rule suffers from several medical conditions. One is rectal cancer, for which Mr. Rule has received chemotherapy and radiation treatment. As a result of cancer-related surgery, Mr. Rule has to wear an ostomy bag. In his affidavit, he describes the daily challenge of wearing an ostomy bag:

The ostomy bag needs to be changed frequently. This involves the following:

(a) In my bathroom, pulling the pouch off while sitting on a toilet to catch any spillage;

(b) Cleaning the stoma site with warm water;

(c) Waiting for the excretions from the site to stop;

(d) Moving to the dining room where I keep the ostomy equipment;

(e) Using a mirror to see the underside of the hernia (described below), and using scissors to cut out the portion of the ostomy pouch that fits overtop;

(f) Further cleaning and drying the skin around the stoma;

(g) Applying a glue sealer to the ostomy pouch;

(h) Pressing the pouch into place on my stomach;

(i) Lying down and pressing on the pouch with my hand for around fifteen minutes to use heat to seal the glue; and

(j) Applying special elastic tape on the outside of the pouch to further attach it to my body.

Generally this process is required once a day, but it may be twice a day, or once every two days. The time that the changing is required is not at all predictable, and may be any time of the day or night.

I need a great deal of equipment for the ostomy care. It takes up the surface of my dining room table.

I have experienced some internal leakage at the site of the operation where my intestines were affected. This leakage has caused excretions of fecal matter and blood from my rectum. This is called an anastomosis. There is also a hernia underneath the stoma site, meaning that some of my internal organs are pushing through a hole in my abdominal muscles. The result is a large lump at the stoma site the size of half a grapefruit.

[15] While the sentencing judge acknowledged the need for this daily procedure, she was satisfied that “[t]his regimen can be addressed in a correctional facility as it is the state’s responsibility to protect and provide proper medical care for those in its care or custody.” Although the Crown submitted that the correctional facility could accommodate Mr. Rule’s medical needs, given their extraordinary nature I concluded that it would cause Mr. Rule unnecessary hardship if he were detained in custody.

[16] As to the criterion in Criminal Code s. 679(4)(c) that Mr. Rule establish his detention is not necessary in the public interest, a qualitative and contextual assessment is required to resolve the balance between enforceability and reviewability: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 49. While, as the Crown submits, the offences for which Mr. Rule has been convicted are very serious ones, I conclude that this is a case where the public interest in reviewability overshadows the enforceability interest: there are no public safety or flight concerns, and the grounds of appeal clearly surpass the “not frivolous” criterion: Oland, at para. 51.

[17] For these reasons, I granted Mr. Rule’s application for bail pending appeal.

“David Brown J.A.”