WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences.—(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

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

(2) Mandatory order on application.— 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 complainant of the right to make an application for the order; and

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

486.6 Offence.—(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.

ONTARIO COURT OF JUSTICE

CITATION: R. v. A.B., 2018 ONCJ 55

DATE: 2018·01·29

COURT FILE No.: Cobourg 160590

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

A.B.

Before Justice S.W. Konyer

Heard on May 15, August 14 and November 22, 2017

Reasons for Judgment released on January 29, 2018

Ms. D. Bryant ......................................................................................... counsel for the Crown

Ms. S. Wilson .............................................................................. counsel for the accused A.B.

KONYER J.:

[1] On May 15, 2017, A.B. pled guilty to touching a person under the age of 16 for a sexual purpose, and to making child pornography, contrary to sections 151 and 163.1(2) of the Criminal Code. These offences were committed on the night of July 9-10, 2016 against K.T., the 11 year old child of J.W. Mr. A.B. had been romantically involved with J.W. for several years, despite the fact that he was married to someone else, and lived with his spouse and three children, all of which was apparently unknown to J.W. Mr. A.B. turned 41 on July 10, 2016, the same date he committed these offences. He has no previous criminal record.

[2] Mr. A.B.’s sentencing was originally adjourned to August 14, 2017 to allow for the preparation of a Pre-Sentence Report and an assessment by a psychiatrist retained by the defence. Since the Crown has proceeded by indictment in this case, each of these offences carries a mandatory minimum sentence of one year jail. Further, s.718.3(7) of the Criminal Code requires that the sentences must be consecutive, meaning that the effective mandatory minimum sentence for Mr. A.B. is two years jail. The defence filed a Notice of Application and Constitutional Question on August 5, 2017, claiming that s.718.3(7) infringed Mr. A.B.’s s.12 Charter right not to be subjected to cruel or unusual punishment by requiring the imposition of a punishment that would be grossly disproportionate to the circumstances of his case. He seeks an order declaring s.718.3(7) to be of no force and effect in his case. This is my decision on that application, as well as my sentencing decision in Mr. A.B.’s matter.

[3] The test that must be applied on a s.12 Charter challenge is well-established. In R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, the Supreme Court of Canada held, at para. 46, that

…a challenge to a mandatory minimum sentencing provision on the ground it constitutes cruel and unusual punishment under s. 12 of the Charter involves two steps. First, the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code. Then, the court must ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence. If the answer is yes, the mandatory minimum provision is inconsistent with s. 12 and will fall unless justified under s. 1 of the Charter.

[4] The first stage of the analysis requires me to determine what constitutes a proportionate sentence for Mr. A.B. in this case, having regard to the circumstances of the offence and the applicable sentencing principles.

[5] It is undisputed that the facts of this case are very serious. In the early morning hours of July 10, 2016, Mr. A.B. entered K.T.’s bedroom while K.T. was asleep. Mr. A.B. uncovered K.T., and exposed his vagina. He touched K.T.’s vagina with his hand and penis, and took several photos of K.T.’s vagina. In some of the photos, Mr. A.B.’s hand and penis can be seen touching K.T. At the time of the offences, K.T. was 11 years old. Although born with female genitalia, K.T. identifies as male. It is agreed that Mr. A.B. was in a position of trust towards K.T., and that he had access to K.T. as a result of his relationship with the child’s mother, J.W. It is also agreed that K.T. was unaware of the abuse until after J.W. discovered the photos taken by Mr. A.B. on his phone in September, 2016. There is no evidence that the photos were ever distributed or shared, and there is no evidence of any other inappropriate conduct by Mr. A.B..

[6] The effects of this conduct upon K.T. and his mother have been significant, and each provided a Victim Impact Statement. K.T. learned of the offences after his mother discovered the photos on Mr. A.B.’s phone some two months after the offences were committed. He describes feeling angry at Mr. A.B.’s betrayal of trust, and scared, anxious and depressed since the photos were discovered. These feelings have not abated, and have manifest themselves in significant behavioural changes. He is unable to concentrate at school, lashes out in anger at friends and family, has trouble sleeping, and has begun stealing from family, friends and stores. He also expressed concern over the fact that his mother has experienced her own problems coping with the effects of Mr. A.B.’s conduct.

[7] For her part, J.W. confirms the impacts described by K.T., and makes the point that K.T.’s behaviour has changed markedly since learning of Mr. A.B.’s actions. He is a completely different child now, and has been arrested four times for shoplifting since Mr. A.B. was charged. J.W. struggles to cope with the many negative changes in her child as a result of Mr. A.B.’s acts. In short, as is often the case with sexual offences committed against children, Mr. A.B.’s conduct has had a massive negative impact upon the lives of his victim and victim’s family.

[8] When sentencing an offender for crimes committed against children, I am directed by s.718.01 of the Criminal Code to “give primary consideration to the objectives of denunciation and deterrence of such conduct.” While the principles of rehabilitation and restraint still apply, they are of lesser importance in cases of sexual violence against children. In R. v. Woodward, 2011 ONCA 610, [2011] O.J. No. 4216, the Court of Appeal directed sentencing judges how to apply these principles in the following terms, at para. 76:

When trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender's conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate sexual predators from society for society's well-being and the well-being of our children must take precedence.

[9] This is also consistent with the need for the sentence to be proportionate to the harm caused. As the Ontario Court of Appeal held in R. v. D.(D.), 2002 CanLII 44915 (ON CA), [2002] O.J. No. 1061 at para. 36: “[t]he horrific consequences of child sexual abuse are only too well known.” In Mr. A.B.’s case, these are still early days for his young and vulnerable victim, but the evidence before me suggests that the impact on K.T. so far has been life-altering.

[10] The harm done to victims of child sexual offences is a “separate and distinct statutorily prescribed aggravating circumstance” and it would be an error of law to fail to recognize the actual and likely future harm caused to K.T. by Mr. A.B. – see R. v. Al-Shimmary, [2017] O.J. No. 690 (C.A.) at para. 11.

[11] Furthermore, the harm caused by making child pornography is distinct and also serious. As the Supreme Court held in R. v. Sharpe, 2001 SCC 2 at para. 92:

The link between the production of child pornography and harm to children is very strong. The abuse is broad in extent and devastating in impact. The child is traumatized by being used as a sexual object in the course of making the pornography. The child may be sexually abused and degraded. The trauma and violation of dignity may stay with the child as long as he or she lives. Not infrequently, it initiates a downward spiral into the sex trade. Even when it does not, the child must live in the years that follow with the knowledge that the degrading photo or film may still exist, and may at any moment be being watched and enjoyed by someone.

[12] I appreciate that in Mr. A.B.’s case there is no evidence that any images of K.T. were distributed or shared in any way. I also understand that Mr. A.B. claims that he did not share any of the photos he took of K.T. I also know, however, that the photos were not discovered on his phone for roughly two months after they were taken. Since virtually all cell phones have internet capability and photos can be shared almost instantaneously through any number of sites or file sharing services, it would be entirely reasonable for K.T. to be concerned that copies of these images continue to exist despite the seizure of Mr. A.B.’s phone.

[13] Despite the need for an increased emphasis on the principles of denunciation and deterrence in cases involving sexual offences against children, every sentence must adhere to the principle of proportionality. Section 718.1 of the Criminal Code provides that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” I have already discussed the seriousness of the offences committed by Mr. A.B.. In assessing his degree of responsibility, I accept that Mr. A.B. did not deliberately set out to cause the serious harm that he did to either K.T. or his loved ones.

[14] I also accept that Mr. A.B. himself is the victim of childhood sexual abuse. Dr. Julian Gojer, an experienced and respected clinical psychologist who is currently on staff with St. Lawrence Valley Correctional and Treatment Centre, noted the following in his assessment of Mr. A.B.:

There appears to be some curiosity in the victim given that she [sic] was transgendered. Mr. A.B. himself was sexually abused when he was about that age. While his abuse did not lead to any serious mental illnesses or post-traumatic stress disorder, I believe it still had some bearing on his offending. I do not see him as suffering from pedophilia.[^1]

[15] Dr. Gojer also recommends that Mr. A.B. continue to receive counseling to address both his offending behaviour and his own childhood sexual abuse. I am prepared to infer from this information that Mr. A.B.’s own abuse likely had some effect upon his judgment in committing these offences against K.T. As a sentencing judge, I know from experience that victims of childhood sexual abuse often go on to become perpetrators of the same sort of crimes. While this tends to lessen his degree of responsibility, it is nevertheless clear that Mr. A.B. knew his conduct was wrong, that he took steps to conceal his acts, and that he knew or ought to have known that there was a real risk of causing harm to K.T. by engaging in these offences. Mr. A.B. is a mature adult, and his judgment was not clouded by the use of intoxicants or any underlying mental illness. Accordingly, I find that he bears a moderately high degree of responsibility for his conduct.

[16] To recap, the sentences I impose on Mr. A.B. for each of these offences must reflect the harm caused by his conduct as well as his degree of responsibility for inflicting that harm. The sentences must also denounce his conduct in strong terms, and send the message that child sexual predators will always be dealt with harshly. At the same time, however, the sentences must also take into account the mitigating factors that are present in this case, including the fact that Mr. A.B. has no prior criminal record, that he has entered an early guilty plea, that there is a link between his offending behaviour and sexual abuse that he himself suffered as a child, and that he has taken steps to address his behaviour by engaging in appropriate counseling.

[17] Crown counsel seeks a sentence of 18 months for the sexual touching offence, and a consecutive sentence of 12 months for the offence of making child pornography, for a global sentence of 30 months. Mr. A.B.’s counsel argues that a global sentence in the range of 12 to 18 months is appropriate, and she argues that this could be achieved through the imposition of concurrent sentences but for s.718.3(7) which mandates that any child pornography sentence must be consecutive to a sentence imposed on the same offender for a sexual offence against a child. Both of the offences to which Mr. A.B. pled guilty carry a mandatory minimum penalty of 12 months jail. His counsel does not challenge either of the mandatory minimum sentences per se, but only the requirement that the child pornography offence be served consecutively rather than concurrently. In effect, s.718.3(7) in Mr. A.B.’s case imposes a mandatory minimum two year jail sentence.

[18] Mr. A.B. argues that s.718.3(7) infringes his s.12 Charter right not to be subject to cruel or unusual punishment because a two year sentence would be grossly disproportionate to the punishment that is appropriate in his case. He has not argued that this law would have a grossly disproportionate effect upon other offenders, and he put forward no other reasonable hypothetical scenarios in which s.718.3(7) would result in a grossly disproportionate sentence. Accordingly, I must decide the constitutional issues raised on the basis of whether applying the impugned provision in Mr. A.B.’s case would result in a grossly disproportionate sentence.

[19] The law is clear that the test is not merely whether the impugned law requires a court to impose a sentence that is merely excessive or disproportionate. Parliament is entitled to enact mandatory minimum sentences that result in sentences that exceed what a court might otherwise impose. The Supreme Court has set a high bar for finding that a sentence offends s.12 of the Charter. As the court held most recently in R. v. Lloyd, 2016 SCC 13, at para 24: “[t]o be “grossly disproportionate” a sentence must be more than merely excessive. It must be “so excessive as to outrage standards of decency” and “abhorrent or intolerable” to society.” With this test in mind, I will now consider whether s.718.3(7) requires me to impose a grossly disproportionate sentence in Mr. A.B.’s case.

[20] To decide whether the mandatory minimum sentence is grossly disproportionate, I must first determine the appropriate sentence for Mr. A.B..

[21] With respect to the offence of sexual touching, there is a mandatory minimum sentence of 12 months jail prescribed by s.151 of the Criminal Code. The constitutionality of that mandatory minimum sentence is not challenged by Mr. A.B., who argues that a sentence of 12 months jail for this offence is appropriate. The Crown seeks a sentence of 18 months jail. In my view, the aggravating features of this offence take it beyond the range where the minimum sentence is appropriate. The breach of trust, the nature of the sexual touching, the harm caused to K.T. and his loved ones, together with Mr. A.B.’s significant level of moral responsibility all require the imposition of a harsh sentence in order to communicate the required denunciatory and deterrent message. In these circumstances, the position taken by the Crown is lenient, and credits Mr. A.B. for his remorse and early plea.

[22] With respect to the offence of making child pornography, both counsel agree that the mandatory minimum sentence of 12 months jail is appropriate. Mr. A.B. argues, however, that the sentence should be served concurrently, and that a consecutive 12 month sentence would cause the overall sentence to be grossly disproportionate. I cannot agree. Even without s.718.3(7), there is persuasive authority for the imposition of a consecutive sentence for child pornography offences in circumstances like Mr. A.B.’s case: see, for example, R. v. B.(R.), 2014 ONCA 840, at para. 7.

[23] This is also not a situation where the impugned provision is constitutionally vulnerable because it has potentially wide application. In R. v. Lloyd, supra, at para 35, the Supreme Court stated that “mandatory minimum sentences that […] apply to offences that can be committed in a variety of ways, under a broad array of circumstances and by a wide range of people are vulnerable to constitutional challenge.” It seems to me that the provision under attack in this case has been tailored to limit its application to circumstances where courts have already recognized the appropriateness of consecutive sentences – namely situations where child sexual offenders also commit child pornography offences in relation to their victims. In my view, there is nothing constitutionally objectionable in a law requiring the imposition of a consecutive sentence in those limited circumstances.

[24] For the foregoing reasons, I have concluded that a global sentence of 30 months, composed of 18 months for the offence of sexual touching and 12 months consecutive for the offence of making child pornography, is the appropriate sentence in Mr. A.B.’s case. It follows that the mandatory minimum sentence of two years prescribed by the operation of s.718.3(7) is not grossly disproportionate. The s.12 Charter application therefore fails.

[25] The sentence for Mr. A.B. is 18 months jail for the offence of sexual touching contrary to s.151, and 12 months jail consecutive for the offence of making child pornography, contrary to s.163.4 of the Criminal Code. The total sentence is 30 months jail.

[26] The Crown’s application for a DNA order is granted. There is a mandatory weapons prohibition order required by s.109, so Mr. A.B. is prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for a period of life. Further, Mr. A.B. is ordered to comply with the requirements of the Sex Offender Information Registration Act, pursuant to section 490.012 of the Criminal Code. As Mr. A.B. was convicted of two designated offences, this order also applies for life – see s.490.013(2)(c).

[27] The Crown has sought orders pursuant to sections 161(1)(a), (a.1) and (b) of the Criminal Code restricting Mr. A.B.’s freedom of movement, association and employment for the next 10 years. Such orders are not available as a matter of course where an offender is convicted of an enumerated offence. They represent a significant restriction on the liberty of the offender and must be “carefully tailored to the circumstances of a particular offender”: R. v. K.R.J., 2016 SCC 31, at para. 47. Such orders “can be imposed only when there is an evidentiary basis upon which to conclude that the particular offender poses a risk to children and the judge is satisfied that the specific terms of the order are a reasonable attempt to minimize the risk”: K.R.J., supra, at para. 48.

[28] I am satisfied in Mr. A.B.’s case that it is appropriate to prohibit him from communicating with K.T. Further, given the breach of a position of trust inherent in his offending behaviour, an order restricting his ability to place himself in a position of trust towards other children is also appropriate. Mr. A.B. remains, however, a parent himself, and in my view an order prohibiting him from being at places where children can expect to be present is both impracticable and unnecessary on the facts of this case.

[29] I therefore decline to make the order sought pursuant to s.161(1)(a). I will, however, make the orders sought under s.161(1)(a.1) and (b). Mr. A.B. is prohibited for a period of 10 years from being within two kilometres of any dwelling house where K.T. normally resides, or any place he attends school or is employed. Mr. A.B. is also prohibited for a period of 10 years from 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.

[30] Finally, I am required by law to impose victim surcharges of $200 for each offence, for a total of $400. Mr. A.B. has 60 days to pay the surcharge, unless he makes an application for an extension of time to pay.

Released: January 29, 2018

Signed: “Justice S.W. Konyer”

[^1]: Exhibit 1A on the sentencing hearing.