Court Information

Ontario Court of Justice (East Region)

Her Majesty the Queen v. David Butters

Before: Justice David M. Paciocco – Ottawa, ON

Counsel:

• Ms. D. Eastwood for the Crown
• Mr. E. Granger for Mr. Butters

Released: November 27, 2014

Reasons for Decision

Conviction and Offences

[1] On 1 May 2014 David Butters was found guilty of two indictable offences of possessing child pornography, contrary to section 163.1(4)(a) of the Criminal Code of Canada. These offences occurred on or about the 30th day of November 2012, and the 13th day of December 2012, respectively.

First Offence – Computer-Based Possession

[2] The former offence was discovered when Mr. Butters brought his desk-top computer tower in for repairs. Child pornography was observed on the computer tower by a repair shop employee, the police were called, and the tower was seized. While that police search and seizure violated section 8 of the Charter, the repute of the administration of justice did not require exclusion and so this evidence was admitted. Subsequent forensic examination disclosed that there were 49 child pornographic images on the hard drive, accessible to Mr. Butters. These accessible images were contained in two files found in the trash bin but capable of being resaved onto the computer. The files had clearly been created by Mr. Butters before being deleted. One of the files had been possessed for up to a year and a half.

[3] The forensic identification also disclosed 203 images in unallocated space on Mr. Butter's hard drives. These images were not accessible to him. In other words, there was no directory on the computer that would have permitted Mr. Butters to access these images. The evidence before me is that these files may have once been saved by the user and then deleted before the trash bin was emptied, with the images being the remnants of files once saved. Alternatively, these images could have been saved automatically in the unallocated space by the computer itself while the websites containing the images were being viewed. Det. Villeneuve explained that the computer creates unallocated files automatically in unallocated space when websites are visited to speed up navigation - a point I will return to below.

Second Offence – Hard Copy Photographs

[4] The latter offence, the 13 December 2012 possession conviction, relates to the discovery on that date during the execution of a search warrant at Mr. Butters' home of 30 hard copy photographs of preteen or young teenage females skinny dipping. I have found that the dominant characteristic of these photographs is the sexual organs and anal regions of these children.

Sentencing Principles and Framework

General Sentencing Approach

[5] In sentencing any crime, to the extent the law permits this to be done, a judge is to craft a fit sentence that is proportional both to the gravity of the offence and the degree of responsibility of the offender. To gauge these variables the judge is to consider relevant mitigating facts and aggravating facts recognized by law. In light of those factors and the prevailing authority the judge is then to select the appropriate sentencing objectives from those listed in section 718. The judge is then to tailor a fit sentence that pursues the relevant sentencing goals, in keeping with the principles of sentencing, including the principles of restraint and parity.

Child Pornography Offences – Special Considerations

[6] With child pornography offences things are a bit different. First, the ability of the judge to select a fit sentence is overridden by minimum sentencing provisions. Even if the judge concludes that a fit sentence is one that falls below the minimum sentence, the judge is obliged to impose at least the minimum sentence. The Criminal Code of Canada confirms in section 718.1 what the minimum sentencing provisions signal. Child pornography offences are inherently aggravated offences, and the sentences that are imposed must reflect this.

[7] Second, binding case law has stipulated the sentencing purposes that are to be given priority. Specifically, sentences are to pursue deterrence and denunciation, in priority to the more rehabilitative and integrative sentencing objectives, regardless of what sentencing goals the facts relating to the specific case might otherwise call for: R. v. Nisbet 2011 ONCA 26.

The Gravity of Child Pornography Offences

[8] These exceptional restrictions on sentencing discretion in child pornography cases are imposed because of the heavy risks and deep offence that child pornography crimes create. Child pornography crimes often involve, and invariably promote, the sexual exploitation of children. Children who are captured in live images are used as props. Their sexual integrity is violated before they are mature enough to make discerning choices. Tragically, many are subjected to physical sexual violation, most often before they are capable of consenting to the activity depicted. It is important to bear in mind, therefore, that images depicting sexual contact with children, real or threatened, tend to chronicle sexual assault and that those who indulge in viewing or possessing or distributing such images encourage those abusers who make the images. To add to the offence, whether they are depicted as the object of sexual contact, or prompted to pose or display their bodies, these children are often used or offered as sexual objects by those who should be protecting them, or they are being abused by others in positions of trust, or after abduction. For those whose images are put on the internet, the abuse does not end. They are captured as perpetual objects for the sexual gratification of others, and subjected forever to the ongoing loss of their sexual privacy and their dignity, world-wide. Those who commit child pornography offences offend not only against the children who have already been abused, but against children generally because child pornography puts all children at risk. Whether exposure to child pornography incites child sexual abuse, it unquestionably feeds the notion that children are sexual objects and it creates a market for the exploitation of yet other children. Child pornography is offensive smut, but it is more. It stands as an anti-social, injurious challenge to the ethical imperative that children are to be protected and nurtured. The Ontario Court of Appeal has rightly called possession of child pornography an "abhorrent" crime (R. v. Nisbet, supra at para 1) of "enormous gravity, both for the affected victim and society as a whole" (R. v. E.O. at para. 7).

[9] Given all of this, it is fitting that priority is to be given to discouraging future offences so children can be protected. This is not to say that rehabilitation and restoration are to be entirely disregarded. It does, however, mandate that sentences must be punitive and forceful enough to be capable of expressing society's revulsion and denunciation, and to make clear to offenders and like-minded persons that the risk of offending is not worth the consequences.

Individualized Sentencing and Aggravating/Mitigating Factors

[10] Still, sentencing is an individualized exercise. Even though all child pornography offences are serious crimes for the reasons expressed, the range of available sentences and the sentencing process described require a Court to attempt to measure the seriousness of the crime being sentenced relative to other child pornography offences of the same class, and to look at who the offender is. Widely used criteria that have emerged through consensus in the case law were adapted in R. v. Kwok at para. 7 into a helpful list of factors:

Generally speaking, any of the following are considered to be aggravating factors: (i) a criminal record for similar or related offences; (ii) whether there was also production or distribution of the pornography; (iii) the size of the pornography collection; (iv) the nature of the collection (including the age of the children involved and the relative depravity and violence depicted); (v) the extent to which the offender is seen as a danger to children (including whether he is a diagnosed pedophile who has acted on his impulses in the past by assaulting children); and (vi) whether the offender has purchased the child pornography thereby contributing to the sexual victimization of children for profit as opposed to merely collecting it by free downloads from the Internet. Generally recognized mitigating factors include (i) the youthful age of the offender; (ii) the otherwise good character of the offender; (iii) the extent to which the offender has shown insight into his problem; (iv) whether he has demonstrated genuine remorse; (v) the existence of a guilty plea; and (vii) the extent to which the offender has already suffered for this crime (for example, in his family, career, or community).

Analysis of Offence-Based Factors

Size of Collection – Allocated vs. Unallocated Images

[11] I will deal with the factors identified in Kwok out of order so that I can focus, in turn, on the offence-based factors and the offender-based considerations. Specifically I will begin with the offence-based factors germane to count 1, the computer-based offence and start with the size of the collection as there is some controversy about that.

[12] As indicated there were 49 allocated, saved images and 203 unallocated images located during the forensic examination. On the evidence before me unallocated images can end up on a computer after they have been saved and then deleted by the computer user, or they can be retained by a computer without being saved as the result of browsing activities.

[13] It is known that Mr. Butters, in fact, browsed websites simply to view images. The forensic examination confirmed that at least 10 child pornographic websites listed as "favourites" on the computer had been visited over time. Indeed, two of the sites were made "favourites" as long ago as 2008. The forensic examination also disclosed that search terms consistent with the intentional search for child pornographic images had been used with unknown frequency. Mr. Butters admitted to Dr. Federoff - during a sexual behaviours assessment he agreed to undertake - that he did surf the internet for images that are, in law, child pornography. It is therefore entirely possible that the 203 images found in the unallocated space could have been preserved unwittingly during browsing, rather than saved by him.

Possession vs. Viewing – Legal Distinction

[14] This matters because the Supreme Court of Canada has held that viewing images on a website is not possession. Possession occurs when images have been captured by saving them or exercising control over them beyond simply creating a bookmark: R. v. Morelli 2010 SCC 8. Accessing child pornography is a different offence, one that Mr. Butters has not been charged with.

[15] The burden, of course, is on the Crown to prove actual possession of images if it wishes to count them among the images possessed in order to demonstrate the aggravating size of a child pornography collection. Mr. Butters is therefore entitled to the benefit of the doubt on the origin of these unallocated images. I cannot, for sentencing purposes, treat the 203 unallocated images as having been possessed by him.

Nature and Extent of Computer Collection

[16] I therefore find for the purposes of sentencing that Mr. Butter's computer collection of child pornographic images consisted of 49 images. This is a small collection compared to other cases. It is also mercifully less graphic than is typical. There were occasional images of children as young as 2, in one case, and 7 in another, and a few of the images depicted oral sex including with adult participation, but the bulk of the images are static depictions of the sexual organs of children, most pre-pubescent, some posing, others not. No violence or bondage is depicted. There were no films. There is no evidence that Mr. Butters produced or distributed the images in question. Nor is there evidence he paid for them. What he did was to troll the internet and capture some of the still images that he saw.

Nature and Extent of Hard Copy Collection

[17] In terms of content the 30 still images discovered in his house are also at the lower end of child pornographic material. They do not depict sexual activity. They show preteens or young teenage girls frolicking naked.

Production of Images – Aggravating Factor

[18] Mr. Butters, a photographer, has admitted to taking these images with a camera equipped with a telephoto lens. His counsel urged me not to treat this as an aggravating factor because this information came from Mr. Butters during a sexual behaviour assessment that he agreed to participate in. The argument is that treating admissions made during such assessments as proof of aggravating factors could discourage participation.

[19] I disagree. There is no rule that when such assessments are conducted only shared information that benefits an accused person should be considered. Nor should there be such a rule. A convicted accused cannot participate in the hope of mitigating their sentence, yet seek to shield aggravating information that arises from such assessments. Persons convicted of sexual offences who participate in sexual behaviour assessments have the option of refusing to answer questions: R. v. A.C.. I do appreciate that functionally the right to refuse to answer is fragile because those who have agreed to undergo such assessments will be loath to appear uncooperative. Any compulsion they may feel to answer, however, is merely tactical and not legal. If a convicted offender chooses to furnish relevant information during sexual behaviour assessments, that information is available.

[20] Given that Mr. Butters took the images, the Crown calls this offence predatory. I find that characterization to be too harsh. I have no evidence that Mr. Butters strategized to acquire the images or stalked the victims. His admission is that he happened upon the young girls in an area accessible to the public and decided to photograph them. This conduct is not predatory but it is voyeuristic. To denigrate to the vernacular, it is creepy. It is not only distressing but criminal that he saw fit to capture and preserve the images. Still, there is no evidence that he digitized the images or shared them. They were kept for his personal purposes. The fact that he made the images that he possessed is an aggravating factor that increases the seriousness of this offence, bearing in mind, however, that the images were captured impulsively, and without compulsion from the children.

Analysis of Offender-Based Factors

Criminal Record and Character

[21] What then of the offender-based considerations? The offences I have just described were committed by a 56 year old man with no prior criminal record and he is to receive some credit for that. I agree with defence counsel that by treating youth as a mitigating factor, R. v. Kwok was not suggesting that its absence is an aggravating one. A demonstrated pro-social past is as mitigating, in my view, as the potential that youth holds for a pro-social future.

Sexual Attraction and Pattern of Conduct

[22] While Mr. Butters does not have a criminal past, despite his primary sexual interest in adult women what he does have is a sexual attraction to young girls. The sexual behaviours assessment confirm this. More to the point, this is an attraction he has indulged for at least three years. This is demonstrated not only by the collections described, but by his history of browsing the internet to view images. The offences are not, therefore, impulsive and isolated. They are symptomatic of an ongoing failure on his part to remain of good character during the years leading up to this offence.

Lack of Insight into Wrongfulness

[23] There are also issues relating to Mr. Butters native understanding of the conduct he was engaged in. Unfortunately Mr. Butters was slow to recognize the extent of the problem his attraction to youthful females presents. During his sexual behaviour assessment interview Mr. Butters initially minimized things by denying he had a sexual problem and characterizing his problem as a failure or reluctance to see 18 years old as a firm line of sexual interest. This caused Dr. Federoff to express doubt about whether Mr. Butters fully appreciated how harmful child pornography is to children. I share those doubts. The wrongfulness of Mr. Butters' conduct is not a simple line-drawing exercise. For the reasons expressed above, it should require no discriminating insight or searching deliberation to recognize the evil that possessing pornographic images of persons who are under 18 years of age entails. Indeed, the line crossed was not close. Many of the images preserved by Mr. Butters were prepubescent. The dangers in having such an attraction, and the wrongfulness of acting on that attraction by acquiring child pornography, should be obvious to right-thinking people; yet apparently it was not obvious to Mr. Butters.

[24] Mr. Butters' initial response to undergoing treatment is consistent with this lack of insight. He did not express interest in treatment when the prospect was raised by Dr. Federoff. I accept that this was because Mr. Butter's did not appreciate that Dr. Federoff was recommending treatment, and now that he knows this, he accepts the professional opinion and has started treatment voluntarily. Still, the fact that Mr. Butters required a professional opinion to recognize that he has a problem raises questions about the depth and durability of his new-found insight.

Knowledge of Illegality

[25] What I do not accept is Mr. Butters' claim advanced through his counsel that he did not appreciate that what he was doing was illegal. I make this finding mindful that he submitted the Count 2 photographs he took for commercial development. While it is possible that someone of shocking naivety could believe that passive photographs of naked children featuring their sexual organs are not child pornography, there were photographs in Mr. Butters' computerised collection which went far beyond this. I am persuaded that Mr. Butters knew he was doing wrong but did it in any event.

Risk Assessment

[26] What I do accept is the evidence of Dr. Federoff that based on clinical factors, Mr. Butters presents a low risk to reoffend given the nature of the offences, his history, his test results - including his below average sex drive - and his age.

Deterrent Effect of Criminal Process

[27] This "low risk" assessment finds further support in the likelihood that the criminal process has had a deterrent and salutary effect on Mr. Butters. To be sure he has not experienced the full panoply of stigma and censure that other offenders frequently experience. He had no job to lose and no close family to disappoint. He has, however, friends who have distanced themselves from him and he has been embarrassed by the publicity this case has received. For two years he has also been under life-altering conditions of bail that have inhibited his ability to re-enter the workforce given that he cannot possess photographic devices or computers; the tools of his trade.

Remorse and Cooperation

[28] I also bear in mind in sentencing Mr. Butters that at no time did he deny his involvement in the offence. While he did not plead guilty, he admitted the substantive case, seeking to find refuge in a Charter remedy he was entitled in law to seek. I accept as genuine the expression of remorse he offered to the court, and I am confident that he is humiliated to be standing before me for this offence. This process has been an education for Mr. Butters, who is gaining an appreciation, the hard way, of the severity of his criminal conduct and the revulsion that others have for it.

Sentencing Decision

Fit Sentence Analysis

[29] What, then, is a fit sentence in all of these circumstances? The case law can do little more than to offer rough ranges since every case is unique. Fortunately the parties are not far apart in their positions, and both offer sentences that find support in the authority. The Crown is seeking a sentence of 8-10 months incarceration while the defence is seeking the minimum sentence for these offences of 6 months to be served concurrently.

The "Inflationary Floor" Principle

[30] As indicated, there have been cases where the sentence sought by the defence of six months imprisonment has been imposed: see R. v. Burke [2012] O.J. No. 6588 (Ont.S.C.J.), a case decided when the minimum sentence was 45 days; and R. v. Stoddart [2014] O.J. No. 2674 (Ont.C.J.). The Crown urges that a minimum sentence is not appropriate in this case, however, because of the "inflationary floor" principle endorsed by Justice Arbour in her concurring opinion in R. v. Morrisey 2000 SCC 39, and adopted by an Ontario Court of Appeal panel in R. v. Delchev 2014 ONCA 448 at para. 19. This principle is said to require judges to reserve the statutory minimum sentence for the least serious offence and the least serious offender so that ordinal proportionality (proportionality or parity between those who commit the same kind of offence) is preserved. The thinking is that persons who are not the least serious offenders committing the least serious offence should not be given the same sentence as those who are. The Crown argues that Mr. Butters' offence is not the least serious child possession offence that can be imagined, and his personal circumstances are not the most mitigating that can reasonably be conceived.

Flexibility in Application of Inflationary Floor

[31] In practice this principle is applied with some flexibility. In R. v. Johnson 2013 ONSC 4217, Justice Trotter noted that "unlimited variation" between offenders and offences "defies ranking with any credible precision." Justice Trotter relied upon the complex network of aggravating and mitigating circumstances to conclude that Mr. Johnson could be classified as one of the best offenders, and then imposed the minimum sentence for possession of a firearm, even though Mr. Johnson possessed the firearm in his belt while holding narcotics and the proceeds of crime. See R. v. Colville [2005] A.J. No. 1255 (Alta. C.A.) for a similar outcome.

Cardinal vs. Ordinal Proportionality

[32] It also bears note that there is Supreme Court of Canada authority that is not consistent with an inflationary floor principle. In R. v. C.(M.A.) the defence made precisely the opposite argument; that the accused should not be given the maximum sentence because this was not the worst offence imaginable, and he was not the worst offender. The Supreme Court of Canada held that it did not matter that the accused would end up with the same sentence as persons who do worse or who are worse, but whose sentence is capped out by the maximum. What mattered was that, on the facts of the case, the maximum sentence was a fit sentence in light of the gravity of his offence and the degree of responsibility of the offender.

[33] This formula – the gravity of the offence and the degree of responsibility of the offender - is not concerned with ordinal proportionality but describes a different form of proportionality, what is often called "cardinal" proportionality and what I call "just dessert" proportionality because of its role in ensuring that people are not punished more or less harshly than is warranted in the specific circumstances of their case. "Just dessert" proportionality is described in the heading to section 718.1 of the Criminal Code of Canada as the "Fundamental Principle" of sentencing. There is good reason why this should be so. It is arguably a worse injustice to give offenders harsher sentences than they deserve, than it is to give them the same sentence that others who are worse offenders have received.

[34] By parallel reasoning to the decision in C.(M.A.), supra if a sentence falls at or below the minimum when applying "just dessert" proportionality one would think that no more than the minimum sentence should be imposed, even if the cost of doing so is to create ordinal disproportion.

Conclusion on Fit Sentence

[35] Fortunately I do not have to negotiate the clash between these two lines of authority. When I pose the basic question of what a fit sentence for Mr. Butters would be, given the gravity of his offence and his degree of responsibility, 6 months is not a fit sentence. I am of the view in all of the circumstances that anything less than 8 months imprisonment would be inadequate. This sentence is required to denounce his offence adequately because Mr. Butters did not simply possess the images in count 2. He created the hard copy images he possessed. Moreover, his interest and indulgence in such images was not a transient fancy. It lasted over a somewhat protracted period. The sentence needs to reflect this.

[36] Similarly, I believe that a sentence of 8 months imprisonment is required in all of the circumstances to promote sufficient specific deterrence. I am concerned that, while Mr. Butters is not a high risk to reoffend, he is overconfident about his ability to avoid further criminal conduct. Moreover, the sentence must, in my view, reinforce the wrongfulness of this conduct in light of the fragility of his newly developed insight.

Charter Breaches and Sentencing

[37] Mr. Butters asks that I reduce his sentence to the minimum sentence of 6 months in light of the Charter violations, pursuant to the decision in R. v. Nasogaluak 2010 SCC 6. The principle in R. v. Nasogaluak holds, at para. 47 that "if the facts alleged to constitute a Charter breach are related to one or more of the relevant principles of sentencing then the sentencing judge can properly take these facts into account in arriving at a fit sentence." The Court noted at para. 48 that "the more egregious the breach, the more attention the court will likely pay to it in determining a fit sentence." Arbitrary pretrial detention, for example, can operate in substance as pretrial punishment and is as relevant to sentencing as harsh bail conditions are: see for example R. v. Donnelly 2014 ONSC 6472. So too can the imposition of vigilante violence by police officers (R. v. Nasogaluak, supra) or gratuitous strip searches (see R. v. Muthuthamby [2010] O.J. No. 4110 (Ont.C.J.)), which can operate as illegal surrogate punishment that can have the incidental effect of reducing the need for punishment to denounce or deter the misconduct.

[38] This case, however, is not an appropriate one for treating the Charter breaches as a relevant migrating factor on sentencing. What happened here was that officers failed to secure the court orders that would have readily been available to them had they followed proper process. In the decision of 1 May 2014 relating to the exclusionary remedy I described the effect of those breaches on Mr. Butters as "modest," and it was. Simply put the breaches in this case do not satisfy the Nasogaluak test. By their nature those breaches did not produce any relevant circumstances that mitigate the need or fairness of the punishment, nor are they egregious enough to prompt me to exercise my discretion to have them affect the sentence. An appropriate sentence remains 8 months in prison in spite of the Charter breaches.

Sentence Imposed

[39] Mr. Butters has already spent 7 days in pre-sentence custody and is thereby entitled to 10 days of credit towards his incarceration. I am therefore imposing a sentence of 230 days in jail on each offence to be served concurrently, with the record to reflect the pretrial custody.

Probation Order

[40] It is agreed by the parties that a probationary order is also required. I agree that in the interest of Mr. Butters' rehabilitation and to reduce any remnant risks of reoffending that he be placed on probation for a period of 2 years. Even though that risk has been assessed to be low, the consequences of it materializing are high, and therefore additional efforts to control it are in order. The conditions of probation are:

1. Keep the peace and be of good behaviour;

2. Appear before the court if and when required to do so;

3. Notify the court or the probation office in advance of any change of name and address;

4. Promptly notify the court or the probation office of any change of employment or occupation;

5. Report in person to a probation officer within 2 working days of your release from custody;

6. Not possess or access any images of children who are depicted to be or appear to be under the age of 18 years who are naked or who are portrayed in a sexual manner;

7. Not possess personally any device capable of accessing the internet or composing, transmitting or receiving electronic mail or digital text communications, or an email account, unless the possession of or use of such device or email account is required for the purposes of employment;

8. Not use any device capable of accessing the internet or composing, transmitting or receiving electronic mail or digital text communications, or an email account, unless the device or email account is being used and is required for the purposes of employment;

9. Not subscribe to or access any internet or similar service or any email service unless the service is required for the purposes of employment and accurate up-to-date information regarding the Internet Service Provider or email account (specifically, the name of the service provider, the account number and billing address, and any and all contractual documents relating to the terms of use) is filed with the probation office;

10. Not use any electronic device to access Internet chat rooms or social networking sites;

11. Not use any electronic device to communicate with a person under the age of 18;

12. Contact the Sexual Behaviours Clinic within one week of release from custody in order to make arrangements for treatment of pedophilic behaviour recommended by the Sexual Behaviours Clinic, and attend and be amenable to any such treatment from that clinic and/or any other treatment, assessment, counselling or rehabilitative programs directed by the probation officer; and

13. Provide the probation officer with proof of attendance for treatment, and sign such documentation as may be required to permit the probation office to monitor your attendance and completion of any such assessments, counselling or rehabilitative programs.

Prohibition Order

[41] The Crown is also seeking a prohibition order pursuant to section 161 of the Criminal Code relating to Mr. Butters. I am in agreement that such an order is in the interest of public safety for a term of five years, for the reasons given. I am therefore directing an order prohibiting Mr. Butters from:

1. Attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre;

2. Seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years; or

3. Having contact or communication with children under the age of 16 years unless in the company of another adult over the age of 21 who is aware of your conviction for possession of child pornography.

Forfeiture Order

[42] The Crown is also seeking an order of forfeiture. Mr. Butters does not contest that order as it relates to the desktop computer that contained the images, or the photographs that supported count 2. He does contest the forfeiture of the Fujitsu Laptop – Serial #Q0200040, seized from his home, given that he faced no charges relating to that device. The Crown contends that since that device contained one unallocated child pornographic image it too should be forfeited.

[43] Section 164.2, the section of application, does not authorize forfeiture unless that property "was used in the commission of the offence." The "offence" referred to in this context is either of the two offences for which Mr. Butters was prosecuted. Mr. Butters did not face any charges relating to the laptop computer. This is because the origin of the image was too difficult to prove. A legal prerequisite to the Forfeiture Order being sought has not been met. I am therefore denying the order for the Fujitsu Laptop, and granting it for the desktop computer and the photographs that supported count 2.

[44] Even though Mr. Butters is entitled to the return of the Fujitsu Laptop it is important to bear in mind that the probation order I have issued prevents Mr. Butters from "possessing any device capable of accessing the internet or composing, transmitting or receiving electronic mail or digital text communications, or an email account, unless the possession of or use of such device or email account is required for the purposes of employment." He should not reclaim possession personally of this Fujitsu Laptop computer unless and until it is required for employment purposes, or he will be committing the offence of breach of probation. To avoid this he will have to authorize its release to another.

SOIRA Order

[45] Finally, I am required by law to impose an order on Mr. Butters pursuant to section 490.012 of the Criminal Code requiring him to comply with the Sexual Offender Information Registration Act (SOIRA). The parties disagree on the duration of that order. The Crown relies on subsection 490.013(2.1) and urges that since I have convicted Mr. Butters of two possession of child pornography offences, the statute requires that the order be for life. Mr. Butters counsel argues that since both convictions occurred at the same time, Mr. Butters should receive the 10 year SOIRA order that applies for a first conviction for an indictable offence carrying a maximum penalty of 5 years imprisonment, pursuant to subsection 490.013(2)(a).

[46] Subsection 490.013(2.1) provides:

490.013(2.1) An order made under subsection 490.012(1) applies for life if the person is convicted of, or found not criminally responsible on account of mental disorder for, more than one offence referred to in paragraph (a),(c),(c.1),(d) or (e) of the definition "designated offence" in subsection 490.011(1).

Possession of child pornography is designated in paragraph 490.011(1)(a).

[47] Cases to date have proceeded on the footing that even if an offender is convicted of two identified designated offences at the same proceeding, the order is for life: see, for example, R. v. Siebenmorgen 2014 ONSC 2456; R. v. Alas [2013] O.J. No. 3738 (Ont.S.C.J.). The proper interpretation of that provision does not appear to have been litigated. I will therefore consider the issue as one of first instance.

Statutory Interpretation

[48] The proper method of interpretation was described in R. v. Bell Expressvu Limited Partnership 2002 SCC 42 at para. 26:

Today there is only one principle or approach; namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

There are also other interpretive principles that are of assistance.

[49] Reading the words of subsection 490.013(2.1) in context and in their grammatical and ordinary sense supports the Crown's position. A natural interpretation of the phrase "convicted of … more than one offence" would include this case because Mr. Butters has been convicted of two counts of possession of child pornography offences.

Defence Argument – Prosecutorial Discretion

[50] The defence argument hinges on "the object of the Act, and the intention of Parliament." The main argument offered is that if the length of a SOIRA order can be determined based on the Crown's charging decisions, arbitrary outcomes can occur. Since each act of saving an image is a possession offence, the Crown could assure a lifetime SOIRA order simply by laying separate charges for what, in substance, is one ongoing act of accumulating a single child pornography collection.

[51] It is obvious that there are different viewpoints about whether it is appropriate to empower prosecutors to make choices that determine sentencing outcomes. Crown prosecutors have the authority to increase maximum sentences by electing indictably for hybrid offences; to file or not notices of intention of increased penalty that can trigger automatically aggravated sentencing provisions, and even to elect indictably to increase a minimum sentencing range as was done in this case. Given that Parliament has crafted these provisions I cannot infer that Parliament could not have intended to confer the authority on prosecutors to prolong the SOIRA order by laying more than one charge at the same proceeding.

Discrete vs. Ongoing Offences

[52] It is also important to appreciate that subsection 490.013(2.1) applies to a range of offences, most of which are committed as discrete transactions. Sexual assault, the offence at issue in R. v. Alas, comes to mind. If the interpretation contended for by the defence is accepted, then someone convicted at the same time of even five sexual assaults happening over time would be subject to the same SOIRA order as a first offender. It is unlikely that Parliament intended this.

Distinction from Minimum Sentencing Provisions

[53] I am aware of decisions that treat multiple convictions on the same occasion as a single offence for the purpose of aggravated minimum sentence provisions: R. v. Cheetham [1980] O.J. No. 721 (C.A.); R. v. Negridge [1980] O.J. No. 1184 (Ont.C.A.); R. v. Skolnik. These cases turn on purposive interpretation related to the point in having harsher minimum sentences for repeat offenders, namely, that harsher minimum sentences must be needed if a more lenient minimum sentence has failed to deter the offender from reoffending. That objective would not be advanced by applying aggravated minimum sentences to those who are being punished for the first time. "First offence" is therefore read as "first offence for which the offender has been punished." This reasoning does not translate to SOIRA orders. A SOIRA order is not a punishment, but rather an administrative measure intended to protect the public and ease the detection of future crimes: (R. v. Cross 2006 NSCA 30). This purpose tells us nothing about the length of order that may be appropriate for a first offender.

[54] Decisions that treat multiple convictions as a single offence for aggravated minimum sentence provisions are also supported by a special interpretive principle that has no application to SOIRA orders. That interpretive principle requires that minimum sentences to be interpreted, where possible, consistently with other principles of sentencing, including the principle of proportionality and parity: R. v. Wust 2000 SCC 18 at para. 22; R. v. Morrissey, supra at para. 75. Although the SOIRA provisions at issue before me impose minimum periods, SOIRA orders are not "punishments" and therefore not subject to the same principles.

Conclusion on SOIRA Order

[55] Given that SOIRA orders are administrative consequences designed to protect the public going forward, their length is determined by the degree of risk that the offender appears to present. Although a simple conviction count is, in some respects, a rudimentary measure, it is a workable and efficient way of pursuing that objective. It is clear to me that Parliament intended, as it has expressed, to impose such orders for life on anyone who has accumulated more than one conviction, regardless of when those convictions have occurred. I am therefore requiring Mr. Butters to comply with the Sexual Offender Information Registration Act (SOIRA) for life.

Released November 27, 2014

The Honourable Justice David M. Paciocco