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 (3) of the Criminal Code shall continue. This section of the Criminal Code provides:

486.4

(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written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

Court of Appeal for Ontario

Date: 20230109 Docket: C70800

Tulloch, Benotto and Trotter JJ.A.

BETWEEN

His Majesty the King Appellant

and

Chris McCaw Respondent

Counsel: Samuel Greene, for the appellant Robert Sheppard, for the respondent

Heard: December 2, 2022

On appeal from the sentence imposed on May 24, 2022, by Justice Allan Maclure of the Ontario Court of Justice.

Trotter J.A.:

A. Introduction

[1] The respondent has been convicted of child pornography offences three times. The first time, he received a conditional sentence. The second time, he received a prison sentence of two years less a day. Upon his third conviction, the respondent received another conditional sentence.

[2] The Crown appeals this most recent sentence. It submits that the sentencing judge failed to undertake the proper analysis before imposing a conditional sentence, and that a conditional sentence was manifestly unfit in the circumstances.

[3] I would allow the appeal and substitute a sentence of three years’ imprisonment, less credit for pre-sentence custody (“PSC”), time spent on house arrest bail, and the time served on the conditional sentence imposed.

B. Background

[4] The respondent was arrested when the police executed a search warrant at the house where the respondent lived with his father. The respondent used email accounts to upload videos of male children between the ages of one and 12 years old engaging in sexual acts with adults and other children. In total, the respondent possessed seven unique images and three unique videos. Although he was charged with several offences, he pled guilty to one count of possession of child pornography: Criminal Code, R.S.C. 1985, c. C-46, s. 163.1(4).

[5] As noted above, the respondent is a repeat offender. He was first convicted of the same offence in 2002 and received a one-year conditional sentence. In 2011, the respondent was convicted of possessing, as well as distributing child pornography (s. 163.1(3)). He received a sentence of two years’ less a day imprisonment and three years’ probation.

[6] The respondent is 47 years old (46 at the time of sentencing). The respondent lives with certain mental health challenges, including Asperger’s syndrome, obsessive-compulsive disorder, depression, and agoraphobia. He receives an Ontario Disability Support Pension. The respondent is socially isolated. He told the author of the Pre-Sentence Report that he uses child pornography to cope with his loneliness.

[7] The respondent has had treatment opportunities over the years, but he has not followed through with what has been made available to him. When he was charged with his first offence in 2000, he attended a few appointments with a psychologist. This therapeutic relationship ended when the respondent was sentenced.

[8] While he was serving his prison sentence imposed in 2011, the respondent was transferred to the St. Lawrence Valley Correctional Treatment Centre, and then to the Royal Ottawa Secure Treatment Unit. The respondent participated in a Sexual Behaviours Assessment, and was diagnosed with pedophilia and paraphilia (hebephilia). When he was released on probation, the respondent completed the Sex Offender Relapse Prevention program. The respondent does not utilize the safety plan that was developed as part of the program. Since he completed his period of probation in 2016, he has not attempted to access any therapeutic or counseling services; he claims that this is financially driven.

[9] Although the respondent has been convicted and sentenced for child pornography offences three times over the course of roughly 20 years, these convictions do not stand as isolated incidents. When he was arrested in 2010, the respondent acknowledged that he accessed child pornography several times a day. In the present case, the respondent told the police and the author of the Pre-Sentence Report that he continued to access child pornography almost daily.

C. Sentencing Proceedings

[10] The respondent’s case progressed in the Adult Therapeutic Court (a mental health diversion court). After he was arrested, the respondent spent 27 days in PSC. By the time he was sentenced, he had been on bail for just under three and a half years, with a house arrest condition (subject to the customary exceptions, including being allowed to be outside the house with his mother or father).

[11] In view of the respondent’s past record, the Crown sought a three-year penitentiary sentence. Relying on the respondent’s PSC and his house arrest while on bail, the respondent’s trial counsel submitted that a fit sentence was one of time-served, followed by three years’ probation.

[12] At the sentencing hearing, the respondent expressed remorse for his actions and apologized to the many children he has harmed by his use of child pornography. The sentencing judge invited both of his parents to speak; they expressed their ongoing support of the respondent.

[13] When delivering his oral reasons for sentence, the sentencing judge outlined the features of the offence and identified some of the personal circumstances of the respondent. He then engaged in a lengthy colloquy with the respondent about his reasons for using child pornography. During this exchange, the sentencing judge said, “you are this close to going to prison for three years. Now these offences in my view, [they are] some of the … very most serious offences in the Criminal Code.” The sentencing judge noted that the respondent had been subject to a house arrest bail condition for approaching four years (in fact, it was under three and a half years), and said:

That to me is significant and I am going to tell you right now that it is by the narrowest of margins that you are not going to jail because denunciation and deterrence are paramount sentencing considerations. Fortunately a conditional sentence is available and that is what I am going to put in place.

[14] Towards the end of this dialogue, the sentencing judge again said, “You were that close to going to jail for three years. I gave you the benefit of the doubt. … You do not really deserve it.”

[15] Overall, the sentencing judge’s decision was driven by: (a) the respondent’s personal challenges; (b) his guilty plea and acceptance of responsibility; (c) the lengthy gap in the respondent’s record; and (d) PSC and house arrest bail.

[16] The sentencing judge purported to impose a two-year conditional sentence. [1] The first six months are subject to home confinement with liberal exceptions. For the remainder of the sentence, the respondent is bound by a curfew. The sentencing judge did not order a period of probation.

D. Positions of the Parties

[17] The Crown submits that this court should impose the sentence recommended by the Crown at the sentencing hearing – three years’ imprisonment. The Crown contends that a conditional sentence is manifestly unfit in light of the respondent’s criminal record for committing similar offences. Moreover, he submits that the sentencing judge did not follow the proper analytical approach when considering whether a conditional sentence order was appropriate. Had he done so, the sentencing judge would have concluded that the respondent poses a danger to the community and was ineligible to receive a conditional sentence.

[18] In response, Mr. Sheppard, counsel for the appellant, submits that the sentencing judge’s decision to impose a conditional sentence was justified by the respondent’s unique personal circumstances and the lengthy period of time spent on a house arrest bail. In the alternative, he submits that, if a three-year penitentiary sentence is imposed, the respondent be given credit for PSC, his bail conditions, and the time he has already served on his conditional sentence (calculated on a 1:1 basis).

E. Analysis

[19] Child pornography offences are extremely serious and are met with sentences that emphasize the sentencing principles of denunciation (Criminal Code, s. 718(a)) and general deterrence (Criminal Code, s. 718(b)). When prosecuted by indictment, possession of child pornography is punishable by a maximum of 10 years’ imprisonment (s. 163.1(4)(a)). [2]

[20] I agree with the Crown that the sentencing judge failed to properly address the pre-conditions for imposing a conditional sentence, set out in s. 742.1 of the Criminal Code. In R. v. Scholz, 2021 ONCA 506, 156 O.R. (3d) 561, this court set aside a conditional sentence because the sentencing judge failed to undertake “the necessary analytical process and consider all of the factors before imposing a conditional sentence”: at para. 17. The proper approach was identified long ago in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, in which Lamer C.J.C. said, at para. 50:

A literal reading of s. 742.1(a) suggests that the decision to impose a conditional sentence should be made in two distinct stages. In the first stage, the judge would have to decide the appropriate sentence according to the general purposes and principles of sentencing (now set out in ss. 718 to 718.2). Having found that a term of imprisonment of less than two years is warranted, the judge would then, in a second stage, decide whether this same term should be served in the community pursuant to s. 742.1.

See also R. v. Sharma, 2022 SCC 39, at para. 13.

[21] In this case, as in Scholz, the sentencing judge erred by failing to make the preliminary determination that a sentence of less than two years was appropriate. As Nordheimer J.A. said in Scholz, at para. 27: “Indeed, the trial judge never actually addressed what the appropriate sentence should be. Rather, he simply found that a conditional sentence was appropriate which required no greater sentence than two years less a day.” Similarly, see R. v. H.S., 2014 ONCA 323, 308 C.C.C. (3d) 27, at paras. 32-33.

[22] Likewise, in this case, the sentencing judge was silent as to what the appropriate sentence should be. The sentencing judge did not specifically address the Crown’s submission that a sentence of three years’ imprisonment was appropriate. Although, he did not dispute the appropriateness of the Crown’s position during submissions or in his dialogue with the respondent.

[23] The sentencing judge placed great weight on the time the respondent had spent on house arrest. But even if the time spent on house arrest could reduce what would otherwise be an appropriate penitentiary term to a sentence of less than two years, the sentencing judge erred at the second stage of the Proulx framework – he failed to consider why it was appropriate to order that the sentence should be served in the community.

[24] Specifically, the sentencing judge failed to consider two critical considerations identified in s. 742.1(a). In imposing a conditional sentence, a court must be satisfied that, “the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2” (emphasis added).

[25] First, the sentencing judge did not assess the danger to the community in imposing a conditional sentence. As prescribed by Proulx, at paras. 69-74, a sentencing judge is required to consider: (a) the risk of re-offending; and (b) the gravity of the harm that could ensue in the event of re-offending. Lamer C.J.C. held, at para. 69: “If the judge finds that there is a real risk of re-offence, incarceration should be imposed.”

[26] Nowhere in the reasons did the sentencing judge address the respondent’s risk of reoffending or the gravity of the harm that could ensue if he was to serve his sentence in the community. Had he done so, he would have found that the circumstances of this case indicated that there was a “real risk” of re-offending such that a conditional sentence was unavailable. On paper, there was an 8-year gap in the respondent’s criminal record; in reality, his offending conduct persisted over the course of that period, almost on a daily basis. This may well have been the result of the respondent’s minimal interest in seeking treatment and ongoing therapeutic supports.

[27] Second, the sentencing judge did not consider whether a conditional sentence was consistent with the fundamental purpose and principles of sentencing as set out in sections 718 to 718.2.

[28] This court has repeatedly stressed the seriousness of child pornography offences. Denunciation and deterrence are the paramount sentencing objectives: R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, at paras. 16, 25; R. v. J.S., 2018 ONCA 675, 142 O.R. (3d) 81, at para. 57, R. v. M.M., 2022 ONCA 441, at para. 15. This is consistent with the more general approach to sentencing for any offence involving the sexual abuse of a child: see R. v. Friesen, 2020 SCC 9, 391 CCC (3d) 309. It is also mandated by s. 718.01 of the Criminal Code, which provides:

718.01 When 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. [Emphasis added.]

[29] In M.M., the Crown appealed a conditional sentence imposed for possession of and making child pornography. Because the respondent had served most of his sentence, the court declined to intervene. However, the court said the following at paras. 15 and 16:

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. Those who commit sexual offences against children must understand that carceral sentences will ordinarily follow.

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. [Emphasis added.]

[30] In this case, the sentencing judge alluded to the principles of denunciation and general deterrence, but only in passing. They should have been primary sentencing objectives.

[31] At the sentencing hearing, counsel for the respondent emphasized the fact that the size of the child pornography collection was small on this occasion, considerably less than the 650 digital files involved with his previous conviction that resulted in the imposition of a jail term. The sentencing judge seemed to reject this submission. He said: “That does not make it any less horrific or harmful or damaging to the victims.”

[32] The same submission was renewed on appeal, which I do not accept. In R. v. Walker, 2021 ONCA 863, this court said at para. 8: “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” (emphasis added).

[33] The “other relevant considerations” in this case include the respondent’s repetitive conduct, his self-reported almost daily use of child pornography, and the shockingly vile material that was seized (including one video of a toddler being sexually abused by an adult female). Thus, the relatively small size of the respondent’s collection of child pornography had no mitigating value.

[34] In conclusion, a conditional sentence was manifestly unfit in this case. Although the respondent’s time spent on house arrest was an important consideration, it did not justify the imposition of a conditional sentence given the danger to the community that the respondent poses and the primacy of the principles of denunciation and deterrence.

[35] Previous dispositions have not curbed the respondent’s use of child pornography. He was given an opportunity to address his offending behaviour when he was arrested the first time for possession of child pornography. But this had no tangible effect – the respondent continued to use child pornography on a daily basis. A carceral sentence of two years less a day, followed by three years of probation, also failed to stop this harmful behaviour. The respondent continued to use child pornography daily.

[36] With nothing more than hope that the respondent might gain control over his offending behaviour on his own initiative, the penal solution was not to impose an unduly lenient sentence, one that had already proven ineffective. The principles of denunciation and general deterrence warranted a much stronger message to the respondent and others – the penitentiary sentence requested by the Crown, one of three years.

F. Conclusion and Disposition

[37] I would allow the appeal and substitute a sentence of three years’ imprisonment. From this, I would deduct 40 days for time spent in PSC. In addition, the respondent should be credited for some time spent on bail. However, this exercise must be tempered by the fact that the house arrest condition, with its liberal exceptions, did not have a dramatic impact on how the respondent typically lived his life – largely at home: see R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.). Consequently, I would give six months’ credit for the time spent on bail. I would also deduct the time already served on the conditional sentence, on a 1:1 basis, amounting to eight months and seven days. The remaining sentence left to be served is 21 months and 14 days. The Crown may seek a warrant of committal if necessary.

[38] In his helpful submissions, Mr. Sheppard requested that, if the Crown’s appeal is allowed, we recommend that the respondent be placed at the St. Lawrence Valley Correctional and Treatment Centre. Although direct institutional placement is beyond the purview of judges in this province, [3] I would make this recommendation.

Released: January 9, 2023 “M.T.” “Gary Trotter J.A.” “I agree. M. Tulloch J.A.” “I agree. M.L. Benotto J.A.”

Footnotes

[1] A conditional sentence is only available when the “court imposes a sentence of imprisonment of less than two years”: Criminal Code, s. 742.1.

[2] In R. v. John, 2018 ONCA 702, 142 O.R. (3d) 670, the minimum mandatory sentence for this offence was declared unconstitutional for violating s. 12 of the Charter.

[3] The Ministry of Correctional Services Act, R.S.O. 1990, c. M.22, s. 17 provides: “A person who is sentenced, committed or transferred to a correctional institution may be received into any correctional institution, as directed by the Ministry, and any designation of a particular correctional institution in a warrant of committal is of no force or effect” (emphasis added).