Publication Ban 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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 File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20220606 DOCKET: C69460 & C69585

Doherty, Huscroft and George JJ.A.

DOCKET: C69460

BETWEEN

Her Majesty the Queen Respondent

and

M.M. Appellant

DOCKET: C69585

AND BETWEEN

Her Majesty the Queen Appellant

and

M.M. Respondent

Counsel: Mark C. Halfyard and Chloe Boubalos, for M.M. Samuel Greene, for Her Majesty the Queen

Heard: May 27, 2022

On appeal from the conviction entered on November 6, 2020 and from the sentence imposed on June 1, 2021 by Justice Russell S. Silverstein of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was convicted of possessing and making child pornography and sentenced to a 15-month conditional sentence and 12 months’ probation. The appellant appeals his conviction. The Crown appeals the sentence.

[2] We find no errors concerning the appellant’s conviction. We accept the Crown’s position that the sentencing judge erred and that a conditional sentence should not have been imposed. However, given that the sentence has largely been served, we do not consider it appropriate to substitute a carceral sentence. Consequently, both the appeal from conviction and from sentence are dismissed for the reasons that follow.

Background

[3] The complainant is the foster daughter of the appellant’s aunt. She met the appellant when she was 12 years old. The appellant and the complainant texted each other over a three-year period. The text messages became sexually charged and the appellant told the complainant of his romantic feelings for her. During the course of their texting, the complainant sent the appellant photos of her breasts and a video of her masturbating. The appellant sent the complainant photos of his penis.

[4] The appellant and complainant made arrangements to have sex following the complainant’s 16th birthday, but the trial judge found there was no evidence they did so. The appellant conceded that the images sent to him by the complainant met the definition of child pornography and that he possessed them. He also conceded that he arranged to have sex with the complainant. The complainant was 15 years old at the time of the offences. The appellant was 31.

The conviction appeal

[5] The appellant argues, first, that the trial judge erred in finding that he was in a position of trust in relation to the complainant. Second, the appellant argues that the trial judge erred in failing to find that the text messages (“sexting”) between the appellant and the complainant were meant for their private use, so did not constitute criminal possession.

[6] We reject these arguments.

[7] Whether a relationship of trust exists is a mixed question of fact and law. The trial judge’s decision is entitled to deference in the absence of a palpable and overriding error. We see no such error. The trial judge applied this court’s decision in R. v. Aird, 2013 ONCA 447, which sets out some of the considerations relevant to determining whether a relationship of trust exists. The trial judge found that several of these criteria were satisfied. For example, the appellant was significantly older than the complainant; he acknowledged that he was a role model for her; and he knew that the complainant looked up to him and had looked to him for emotional support since she was a child. Moreover, the appellant knew that the complainant wanted him to be her godfather and he was prepared to do so.

[8] These findings reveal no error and are entitled to deference. They provide ample support for the trial judge’s finding that the appellant was in a position of trust.

[9] The appellant’s second argument is that the trial judge erred in ending his analysis at the first step of the private use exception established in R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45. The trial judge found that the complainant’s action in sending the pictures and video to the appellant did not fall within the private use exception because the appellant was neither depicted in the images nor was he the creator of the images. The appellant says that the sexting was private sexual activity between the complainant and the appellant and that the images were created during the sexting. The private use exception should apply, the appellant submits, provided that there is no dissemination outside the confines of the conversation.

[10] In effect, the appellant invites this court to expand the private use exception to include sexting, an argument that was not made at trial. Assuming that we could expand the exception, we decline to do so.

[11] The private use exception established in Sharpe is strictly limited. It presupposes physical involvement in sex or the recording of the sex, as the court confirmed in R. v. Barabash, 2015 SCC 29, [2015] 2 S.C.R. 522, at para. 52. We see no basis to broaden the exception created in Sharpe to include images forwarded by one party to another in the context of sexting. Sexting is a phenomenon that post-dates Sharpe, but it is not akin to either the activity recognized by the exception in Sharpe or the purpose behind that exception – especially where, as here, the sexting concerns communications between an adult and a child.

[12] The appeal from conviction is dismissed.

Sentence appeal

[13] The Crown argues that the trial judge erred in principle and the conditional sentence he imposed was demonstrably unfit in light of R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1.

[14] We agree.

[15] The Supreme Court’s instructions from Friesen could not be clearer: sentences for sexual offences against children must increase. There are no qualifications here. Sentences have been too low for too long. Denunciation and deterrence are of primary importance: R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, at para. 3. Those who commit sexual offences against children must understand that carceral sentences will ordinarily follow.

[16] Conditional sentences for sexual offences against children will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate – for example, where it gives rise to a medical hardship that could not adequately be addressed within the correctional facility. It would not be appropriate to enumerate exceptional circumstances here and we make no attempt to do so. Suffice it to say that no exceptional circumstances are present in this case. A sentence of imprisonment should have been imposed.

[17] The sentencing judge failed to give effect to several aggravating factors, and in particular to the appellant’s breach of trust. As the Supreme Court explained in Friesen, a breach of trust is likely to increase the harm to the victim and the gravity of the offence: at paras. 125-26. It is a significant aggravating factor, but the sentencing judge mentioned it only in passing. At the same time, some of the sentencing judge’s remarks suggest that he minimized the nature of the appellant’s offending. For example, he stated that the photos and videos of the complainant “couldn’t be less sinister, and still be child pornography”.

[18] Of course, as with any offence, there is a spectrum of offences involving child pornography. But it is not a mitigating circumstance that the photos and video sent to the appellant did not depict acts perpetrated against infants and very young children, nor is it a mitigating circumstance that the appellant was not trolling the internet in search of child pornography. Although the child pornography was sent to the appellant unsolicited, it was plain that the appellant had been grooming the complainant – a child in foster care who was especially vulnerable as a result.

[19] We accept the Crown’s submission that a 15-month sentence of imprisonment plus 12 months’ probation would have been appropriate, albeit at the low end of the range.

[20] In the normal course, a respondent could expect to be required to serve the increased portion of a carceral sentence following a successful Crown appeal. However, in this case the appellant has already served approximately 12 months of his 15-month conditional sentence. In our view, the interests of justice would not be served by substituting a 15-month sentence of imprisonment. The effect would be to require the appellant to serve only a very brief portion of that sentence prior to statutory release. At the same time, however, it would not be appropriate to impose a carceral sentence but stay its enforcement: this would have the effect of shortening the appellant’s sentence by relieving him of the burden of serving the remainder of his conditional sentence.

[21] Accordingly, although we have concluded that the sentencing judge erred in imposing a conditional sentence, the Crown’s appeal from sentence is dismissed. The appellant is therefore required to complete his conditional sentence and one-year probation period.