Court and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20211201 DOCKET: C69097
Strathy C.J.O., Hourigan and Paciocco JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Richard Walker Appellant
Counsel: Matthew Gourlay, for the appellant Kristen Pollock, for the respondent
Heard: November 26, 2021
On appeal from the sentence imposed on February 2, 2021 by Justice Judy A. Fowler Byrne of the Superior Court of Justice, sitting with a jury.
Reasons for Decision
[1] The appellant was found guilty of accessing child pornography, possessing child pornography, and making child pornography available. He was sentenced to three years’ custody for making child pornography available and two years concurrent on the possession count. The trial judge also imposed several ancillary orders, including an order under s. 161 of the Criminal Code, R.S.C. 1985, c. C-46. A conditional stay was entered on the accessing child pornography count on the basis of Kienapple v. R., [1975] 1 S.C.R. 729.
[2] The appellant seeks leave to appeal his sentence, raising three grounds of appeal: (i) the trial judge erred in deeming his lack of “insight” into his offending behaviour to be an aggravating factor; (ii) the trial judge erred in failing to reduce the sentence as a collateral consequence of COVID-19, and (iii) these errors rendered the resulting sentence demonstrably unfit and it should be reduced to a global sentence of two years in custody. At the close of oral argument, we dismissed the appeal with reasons to follow. These are our reasons.
[3] Regarding the first ground of appeal, the trial judge found in her reasons for sentence that the fact that there was “no sign that [the appellant] has any insight into the seriousness of the offences” was an aggravating factor. The appellant relies on R. v. Reeve, 2020 ONCA 381, 151 O.R. (3d) 65, for the proposition that a lack of remorse cannot be treated as an aggravating factor because to do so would come very close to punishing the offender for making full answer and defence.
[4] In our view, this case is distinguishable from Reeve. First, the issue in the present case was a lack of insight and not a lack of remorse. In addition, in the case at bar, the thrust of the defence submission was that the appellant posed a low risk to re-offend and that a conditional sentence was fit in the circumstances. In considering that argument and the issue of future dangerousness, it was open to the trial judge to consider that the appellant did not appear to understand the seriousness of the offences: R. v. Hawley, 2016 ONCA 143, at para. 5, R. v. Shah, 2017 ONCA 872, at para. 8. Consequently, we do not give effect to this ground of appeal.
[5] Concerning the second ground of appeal, the appellant filed letters from his parents, friends, and former coworkers that expressed concern about how he would fare if incarcerated given his health issues. The letters did not otherwise expand on these health issues and stated only that in the past, the appellant required the use of a C-PAP machine. The trial judge, citing R. v. Morgan, 2020 ONCA 279, noted that the collateral consequences of the pandemic could not be used to reduce a sentence to the point where it becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender. She found that the pandemic had a minimal mitigating impact on the appellant’s sentence.
[6] The appellant submits that the trial judge “appears to have understood Morgan to stand for the proposition that any meaningful reduction in sentence to reflect COVID conditions would render a sentence non-proportionate." We disagree. A fair reading of the trial judge’s reasons for sentence makes clear that she correctly held that collateral consequences cannot be used to reduce a sentence to the point where it is no longer proportionate. Her finding that the pandemic has a “minimal mitigating impact” on the appellant’s sentence does not suggest that she misunderstood the case law. Instead, she considered the aggravating factors so severe that this mitigating factor would not substantially reduce the sentence. A sentencing judge's decision regarding the pandemic's impact in a particular case is a matter of discretion and is entitled to deference. In our view, the trial judge reasonably exercised that discretion, and there is no basis for this court to interfere.
[7] Regarding the third ground of appeal, we do not find that the sentence imposed was unfit. The trial judge was mindful of the admonition in R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, that sentencing judges must impose sentences commensurate with the gravity of sexual offences against children and that reflect the consequential harm to children. The trial judge carefully assessed the Friesen factors and noted that the appellant’s case fell on the high end of the “frequency” factor because he placed the material on a peer-to-peer file sharing platform for anyone to obtain, review, and redistribute. In addition, the trial judge found that the victims’ ages were a particularly aggravating factor in this case because the children were prepubescent, with some appearing to be toddlers. Finally, the trial judge also found the degree of physical interference to be great because the material depicted digital and penile penetration, penetration by objects, fellatio, and aggression.
[8] We do not find the appellant’s submissions in support of his position that his sentence should be reduced to be compelling. He primarily relies on jurisprudence that was decided prior to the Supreme Court’s decision in Friesen. Further, the appellant’s submissions on the size of the collection of materials in his possession as compared to the materials held by other defendants in past cases is unpersuasive. Sentencing for child pornography offences is not done by means of a strict mathematical formula tied solely to the quantity of pornographic materials without regard to other factors. Such an approach overlooks the importance of the content of the materials and other relevant considerations. The trial judge focused on the egregiousness of the materials in the appellant’s possession, and this was a significant factor in her sentencing decision. We see no error in that analysis.
[9] For these reasons, we grant the appellant leave to appeal sentence but dismiss his sentence appeal save for a correction to the trial judge’s s. 161 order under the Criminal Code. On consent, the s.161 order shall be amended so that it tracks the language in para. 86(e)(i) of the reasons for sentence. The sentence appeal is otherwise dismissed.
“G.R. Strathy C.J.O.” “C.W. Hourigan J.A.” “David M. Paciocco J.A.”
