Court File and Parties

Date: May 4, 2018

Information No.: 2811-998-16-34515-00

Ontario Court of Justice

Her Majesty the Queen

v.

Nino Despot

Proceedings at Reasons for Judgment and Sentence

Before the Honourable Mr. Justice M. Felix

on Friday, May 4, 2018 at Oshawa, Ontario

Appearances

M. Gillen – Counsel for the Crown

F. Davoudi – Counsel for Nino Despot

Table of Contents

• Introduction
• Procedural Considerations
• Organization of This Judgment
• Determination of Sentence
• Position of the Crown
• Position of the Defendant
• Sentence
• Facts
• Background of the Defendant
• Circumstances of the Offence
• Relevant Sentencing Principles
• Mitigating Factors
• Aggravating Factors
• Other Factors
• Remorse
• Rehabilitative Counselling or Treatment
• Risk to Children
• Prior Discreditable Conduct
• Sentence Range
• Increased Sentences
• Constitutional Challenge
• SOIRA
• DNA Order
• Section 161 Order of Prohibition
• Forfeiture

Reasons for Judgment

FELIX, J.: (Orally)

Introduction

This case concerns a Section 12 Charter of Rights and Freedoms challenge to the mandatory minimum sentence of one year imprisonment for the indictable offence of possession of child pornography, contrary to section 163.1(4) of the Criminal Code of Canada.

The defendant, as the applicant, submitted that the mandatory minimum sentence required the Court to impose a disproportionate sentence contrary to Section 12 of the Charter.

I have determined that the proportionate sentence in this case exceeds the mandatory minimum sentence. As a result, the Constitutional challenge is moot.

Procedural Considerations

The defendant pled guilty to the indictable offence of Possession of Child Pornography between March 21, 2016 and April 22, 2016, contrary to Section 163.1(4) of the Criminal Code of Canada.

The matter proceeded by way of preliminary inquiry on May 3rd, 2017. Prior to committal for trial, a judicial pre-trial was requested and held on May 23rd, 2017. On June 12, 2017 the defendant re-elected trial in the Ontario Court of Justice and pled guilty. The matter was adjourned to September 15th, 2017 for submissions and to facilitate preparation of a Pre-Sentence Report. It was anticipated at that time there would be an agreed statement of facts and that certain factual issues were still outstanding. The plea was received on the basis of the record produced at the preliminary inquiry and the clear acknowledgement of possession expressed by the defendant during the pre-plea inquiry.

On August 27, 2017, on the heels of the Ontario Court of Appeal decision in R. v. Morrison, 2017 ONCA 582, counsel for the defendant served a Notice of Application and Constitutional Issue and a factum seeking a declaration that s. 163.1(4) violated Section 12 of the Charter of Rights and Freedoms because of the applicable mandatory minimum sentence of one year. The Crown Attorney sought and was granted an adjournment of the sentencing to respond to the application.

On February 13, 2018 factums, case law, and submissions were addressed. The matter was adjourned to March 22, 2018 for sentencing and a decision on the application. Later, defence counsel advised the trial coordinator that the date set was unavailable and a new sentencing date of May 4, 2018 was fixed on consent.

Organization of This Judgment

I will commence by determining what a fit and proportionate sentence should be in this case. Then I will address the Constitutional challenge and explain why it is moot.

Determination of Sentence

Position of the Crown

The prosecution seeks a custodial sentence of 18 months and probation for three years with terms, the mandatory SOIRA order for 20 years, the mandatory primary designated DNA sample, forfeiture of all seized material, and a tailored section 161 Prohibition order permitting access to the internet subject to conditions.

Position of the Defendant

The defendant applies for a declaration that s. 163.1(4) of the Criminal Code violates s. 12 of the Charter. Defence counsel submits that the mandatory minimum sentence of one year violates s. 12 of the Charter because it requires the Court to impose a disproportionate sentence. The defendant submits that a 90-day intermittent jail sentence would be an appropriate sentence.

The defendant does not contest the ancillary orders or probationary term.

Sentence

I have determined that a fit sentence is a jail sentence of 17 months. There will be no reduction for restrictive bail. I have examined the bail, the bail was appropriate. Having regards to R. v. Downes and R. v. Ijam, 2007 ONCA 597 there will be no reduction. In addition there is no pre-sentence custody to calculate.

The Charter application is dismissed. For the reasons that follow I decline to address the constitutional challenge as it is moot.

The gentleman will be placed on 24 months' probation with terms that I will address at the end of this judgment. The ancillary orders are granted. I will address the terms at the end of this judgment.

Facts

The parties relied on the evidence heard during a preliminary inquiry in this matter and some additional facts. A summary of the facts will suffice for this sentencing.

An officer with the Durham Regional Police Internet Child Exploitation Unit checked a computer program called the Child Protection System for IP addresses in the Durham Region that were actively sharing suspected child pornography. He identified and isolated a particular IP address that was sharing more than 50 child pornography files. Using specialized software he was able to determine that the particular IP address was in fact the source of particular child pornography material. He authored a production order to identify the subscriber of the IP address. After conducting checks on a police computer he noted that one of the four occupants at the address associated with the IP address has been previously cautioned for possession of child pornography in 2009.

The officer obtained a search warrant for the address.

A number of electronic media devices were seized. Five in total.

They are designated HD01, HD02, HD03, HD04, HD05.

• HD01 had seven unique photos and 13 movies of child exploitation.
• HD02 had 959 photos and 32 movies of child exploitation.
• HD03 had one photo and one movie.
• HD04 had no accessible photos and no accessible movies and 21 inaccessible unique photos meaning that they had been deleted.
• HD05 had 696 unique photos and 48 movies.

The total of the images and movies of child exploitation accessible to the gentleman before the Court was 1,663 photos and 94 movies.

The forensic examination revealed that over 48,000 photos and 2,996 movies were not in possession of the gentleman – they were inaccessible as they had been deleted.

Background of the Defendant

The defendant had a good upbringing in Scarborough, Ontario with supportive family connections.

He had been married for nine years to his spouse and both describe a very close and supportive relationship.

The Pre-Sentence Report and reference letters filed as exhibits denote that the defendant has good character.

He has worked hard in various employment capacities in the automotive sector and related sectors. As a result of this prosecution he had to give up employment. He has recently obtained some part-time work.

The defendant has no substance abuse issues.

The defendant has health issues associated with diabetes, high cholesterol, blood pressure and a gall stone. He is addressing medical complications associated with his diabetes.

Circumstances of the Offence

Many court decisions outline the harm to society caused by the possession of child pornography.

In R. v. Sharpe, 2001 SCC 2, at paragraphs 84-94, the Supreme Court of Canada discussed a concept known as "reasonable apprehension of harm" standard and the connection between images of child exploitation and the promotion of cognitive distortions, incitement of fantasies, grooming of children for sexual offences, and the production of images using real children. At paragraph 158 the Court explained:

The very existence of child pornography, as it is defined by s. 163.1(1) of the Criminal Code is inherently harmful to children and to society. This harm exists independently of dissemination or any risk of dissemination and flows directly from the existence of the pornographic representations, which on their own violate the dignity and equality rights of children. The harm of child pornography is inherent because degrading, dehumanizing, and objectifying depictions of children, by their very existence, undermine the Charter rights of children and other members of society. Child pornography eroticizes the inferior social, economic, and sexual status of children. It preys on pre-existing inequalities.

In addition, the Court explained the connection between possession of child pornography and child abuse at paragraph 94:

Possession of child pornography increases the risk of child abuse. It introduces risk, moreover, that cannot be entirely targeted by laws prohibiting the manufacture, publication and distribution of child pornography. Laws against publication and distribution of child pornography cannot catch the private viewing of child pornography, yet private viewing may induce attitudes and arousals that increase the risk of offence. Nor do such laws catch the use of pornography to groom and seduce children. Only by extending the law to private possession can these harms be squarely attacked.

In R. v. Morelli, 2010 SCC 8, at paragraph 8 the Court again characterized the offence of child pornography:

To be sure, offences involving child pornography are particularly insidious. They breed a demand for images that exploit vulnerable children, both economically and morally. Understandably, offences of this sort evoke a strong emotion response. They generate widespread condemnation and intense feelings of disapprobation, if not revulsion.

The Ontario Court of Appeal has echoed these sentiments in several cases: See R. v. Nisbet, 2011 ONCA 26; R. v. F. (D.G.), 2010 ONCA 27, at paras. 21-22; R. v. O.(E.), at para. 7; and R. v. Stroempl, at para. 9.

There is no question that the primary focus of this sentencing involves the sentencing principles of denunciation and deterrence.

Relevant Sentencing Principles

That the central focus of this sentencing must be general deterrence and denunciation is reflected not only in case law, but it is codified in s. 718.01 of the Criminal Code.

Section 718.01 provides the following objectives of sentencing for offences that involve the abuse of young persons:

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.

Many Courts have held that s. 718.01 of the Criminal Code applies to possession of child pornography: See R. v. Beiere, 2017 ONSC 5377, at para. 30; R. v. John, 2017 ONSC 810, at paras. 14, 25; R. v. Davies, 2012 ONSC 6021, at para. 25; R. v. Riffon, 2014 ONCJ 252, at paras. 19-20; R. v. Foley, 2013 ONCJ 25, at paras. 33-34; R. v. Tinker, 2010 ONCJ 249, at paras. 15-16; R. v. Cuttel, 2010 ONCJ 139, at paras. 11-12; and R. v. Keough, 2011 ABQB 312, at para. 41. While the defendant in this case did not physically harm a particular child, he participated in an industry focused on the exploitive abuse of vulnerable children. While the adult erotic film industry produces material depicting adults engaged in diverse and varied sexual practices which is lawful, there is no legitimate erotic film industry involving children. This offence involves the sexual abuse of real children across the entire world, even if those real children are unascertained or unascertainable.

Section 718 of the Criminal Code sets out the purposes of sentencing:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing such sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and an acknowledgment of the harm done to victims or to the community.

All of these fundamental principles of sentencing are in play in this case.

Section 718.1 provides the fundamental principle of proportionality in sentencing:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

This offence is very serious, the offender is solely responsible for its commission.

Section 718.2 deals with other sentencing principles and includes, in part:

A Court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and without limiting the generality of the foregoing.

(ii.1) evidence that the offender in committing the offence, abused a person under the age of eighteen years, shall be deemed to be aggravating circumstances.

The defendant in this case is entitled to a proportionate sentence. I must balance all of the sentencing principles, including the principle of restraint to achieve a just and proportionate sentence.

Mitigating Factors

In R. v. Kwok, A.M. Molloy J. captured a non-exhaustive list of generally recognized mitigating factors including: (1) 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) whether the offender is willing to submit to treatment and counselling or has already undertaken such treatment; (vi) the existence of a guilty plea; and (vii) the extent to which the offender has already suffered for his crime (for example, in his family, career or community).

The defendant before this Court is a middle-aged first offender. The reference letters filed by defence counsel were very helpful in setting out the good character of this gentleman. The contents of the PSR support a conclusion that he is (other than offence) subject to positive pro-social antecedents. He has good character. He is willing to submit to treatment and he has suffered greatly for his crime, in particular the impact on his family and his employment.

The defendant entered a guilty plea. He is entitled to be viewed as remorseful as a result.

Aggravating Factors

In Kwok at para. 7 the Court summarized some of the aggravating factors recognized in case law including:

(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).

Defence counsel submits that the images are "...not very violent". I disagree.

In addition to the Kwok factors I also rely on an approach neatly summarized by Latimer J. in R. v. Chislette, 2018 ONCJ 218 at paragraph 9:

During the sentence hearing I was shown a representative sample of ten movies and ten images. I do not propose, in the circumstances, to exhaustively review these images. I have seen them. They are described in writing in Exhibit 2. Suffice to say, there is a decision called R. v. Oliver, [2002] EWCA Crim 2766, from the English Court of Appeal that developed a categorical scale for child abuse images. This is a scale that has been adopted by trial courts in this province and the Nova Scotia Court of Appeal: see R. v. Levin, 2015 ONCJ 290, at para. 53; R. v. Dienaar, 2007 CarswellOnt 4819, at para. 23; R. v. Missions, 2005 NSCA 82, at para. 14. In Oliver, the English Court categorized the relevant levels as:

The Oliver categorical scale for child abuse images is as follows:

(1) Images depicting erotic posing with no sexual activity;

(2) Sexual activity between children, or solo masturbation by a child;

(3) Non-penetrative sexual activity between adults and children;

(4) Penetrative sexual activity between children and adults;

(5) Sadism or bestiality.

The Crown relied upon detailed evidence concerning the child pornography and did not file any actual photos or movies. In his report, D.C. Lockwood stated that the videos mostly depict pre-teen girls posing in various states of undress but there are some movies involving toddlers and adolescent children involved in sex acts with adult males. The images also have a lot of pre-teen girls, but the number of toddler aged children increased significantly, especially with Hard drive #3. The images also include children involved in bestiality and bondage BDSM sex acts with adults.

I find the size of the defendant's collection to be aggravating. It is also notable that it spanned five separate media devices. Finally, while no direct evidence has been adduced concerning the exact timeframe during which he accessed that material, the size of the collection and the distribution across several media devices is inconsistent with a momentary flirtation with the material. It would have taken several hours to download this volume of material. I do not need expert evidence to tell me that.

In addition, using the analysis in Oliver the type of material in this case spans all of the categories including the level five category in that there are images and movies involving bondage BDSM sex and bestiality.

I find the nature of the collection to be highly aggravating.

Other Factors

There are other factors relevant to this sentencing that I must briefly address.

Remorse

I have already recognized that I view the defendant as remorseful in particular given his guilty plea. The defendant's presentation, demeanour, and words in court certainly support a finding that the defendant is subjectively remorseful about these circumstances. In particular, he is understandably concerned, ashamed, and upset about the impact on his family. While these considerations bode well for his rehabilitation I have a responsibility to address other features of this sentencing that cause concern.

First, the guilty plea was entered after the end of a preliminary inquiry. A preliminary inquiry where his spouse was called by the prosecution to establish that she not have possession over the offending material. The record will amply reflect the emotional impact on the defendant's spouse. She was highly emotional. Almost distraught in court. She has remained supportive of the defendant and present during all of the proceedings. An early guilty plea would have spared at least her participation in this proceeding as a witness and the ancillary emotional impact.

Second, while I must say personally I am highly sympathetic towards the defendant as a person, I have a responsibility to note that he sought to minimize his involvement in the offence when speaking with the author of the Pre-Sentence Report. I note in the Pre-Sentence Report that the defendant told the author of the report that this offence was a momentary event. He told her he was searching for music and the material flashed up on his screen. Based on the evidence in this proceeding that is highly improbable given the quantity of offending material and the distribution of that material across numerous electronic mediums as I have explained. Furthermore, the software used by the investigating officer is designed to ensure that a downloaded file of child exploitation is obtained solely from the targeted IP address. A consequence of this approach means that it took four months to download a child pornography movie from the defendant. This was not a momentary event.

Rehabilitative Counselling or Treatment

I have a responsibility to note as well notwithstanding my personal sympathy for the defendant, that he has not even taken the first step towards rehabilitation by seeking counselling or treatment. Notwithstanding the length of time between the guilty plea and submissions there was no effort to address any issues by way of counselling. I note carefully that defence counsel provided submissions concerning his general approach to this issue, and the advice he typically provides, but ultimately defence counsel conceded that this was not relevant to this particular case without delving into solicitor-client privilege. This state of affairs is particularly concerning. As noted by the author of the Pre-Sentence Report there is an obvious concern here. The concern is that it is unclear to the author of the report why this offence occurred. It is I speculate unclear to the defendant's family why this offence occurred. I can state that it is unclear to me what is driving this gentleman and perhaps it is unclear to him. Expressing words of remorse particularly when I am satisfied he means them is important. But so are concrete actions.

Risk to Children

For the reasons outlined I question whether the defendant has insight into his behaviour. This is relevant to his risk.

There is no evidence in this proceeding proving that the defendant is in fact a pedophile. There is no evidence in this proceeding proving that he is a risk to children.

But as I sit here as the sentencing judge, I do not have any idea whether or not the defendant is a risk to children. I do not have any idea whether or not the defendant is a pedophile. I do not have any idea whether or not the defendant should receive any other specialized medical treatment (e.g. psychiatric). I do not know if he suffers from a major mental illness.

Prior Discreditable Conduct

As part of the evidence on the preliminary inquiry I heard that the defendant had been cautioned in 2009 for the possession of child pornography. The defendant was identified as having downloaded and printed out images of child pornography by the police. The defendant claimed at that time that he was printing out satellite codes and the inference being it was by accident. This evidence led by the Crown was focused on the issue of identifying the party responsible for accessing the child pornography amongst the four identified adults residing in the home. Indeed as I have noted, the Crown had to call the defendant's spouse as a witness on this issue of identification. That being said the defendant was cautioned by the police. He was not charged. He was not found guilty and I am not relying on the prior circumstance – uncharged, unproven, cautioned conduct for the purpose of this sentencing for any reason.

Sentence Range

I begin with the cautionary guidance from the Supreme Court of Canada defining what sentence ranges are in R. v. Lacasse, 2015 SCC 64 at para. 57:

Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered "averages" let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case.

In R. v. Carlos, 2015 ONSC 8085 at paras. 23-70, aff'd 2016 ONCA 920 concerning the imposition of a penitentiary sentence for a first time offender, Donohue, J. analyzed several sentencing cases enroute to the imposition of a three year penitentiary sentence.

In John, at paragraph 32, Woolcombe, J cited and analyzed a number of cases suggestive of a trend towards increased sentences before concluding at paragraph 33:

It is my conclusion that in order to recognize and give effect to the appropriate sentencing principles for possession of child pornography, the appropriate sentence spans a considerable range, from around six or eight months at the bottom end of the range upwards to about three years. Determining where within that range is appropriate depends on the particular aggravating and mitigating circumstances in the case.

In R. v. Bock, 2010 ONSC 3117 at paragraphs 50-54 J.R. Henderson J. held that the sentence range for possession of child pornography ranged from six months to 18 months.

Increased Sentences

In John, Woolcombe J. outlined the rationale for increasing sentences:

First, in 2005, Parliament enacted s. 718.01 of the Criminal Code, which, as set out above, identifies that denunciation and deterrence must be primary considerations if the offence involved abuse of a person under 18 years old. In other words, whereas rehabilitation might previously have assumed greater weight, Parliament has made clear that it is secondary when there is abuse of a minor involved. Possession of child pornography is such an offence.

Second, in 2007, Parliament enacted s. 718.2(a)(ii.1) of the Criminal Code. This provision requires a Court to increase a sentence if it finds that in committing the offence, the offender abused a person under the age of 18 years. Inherent in the possession of child pornography is the abuse of children.

I think that these two changes made by Parliament signal an enhanced appreciation of the harm caused by offences such as the possession of child pornography and signal a view that there ought to be more significant sentences for this offence.

I understand this passage to be an acknowledgement by the Court of Appeal that the prevalence of the production and distribution of child pornography is growing, with increasingly sophisticated technological advances, and that there is a pressing need to recognize that possession of child pornography continues to victimize innocent children. Moreover, I observe that the Court expressly described the sentences it affirmed or imposed in such earlier cases as Schan, Weber and R. v. Kim, as "relatively lenient". Without expressly saying it, I see the Court as recognizing that sentences for possession of child pornography should be higher in order to give effect to the appropriate principles of sentence. This view is reflected in many of the more recent cases in which they have considered the issue of sentence for those convicted of possession of child pornography, as set out below.

In Chislette, at paragraphs 16-23 Latimer, J. also explained the rationale for the sentencing approach in this area of law and the justification for a trend towards increased sentences.

As a consumer of criminal law related material I have also read a Statistics Canada Report entitled Mandatory Minimum Penalties: An Analysis of Criminal Justice System Outcomes for Selected Offences published August 29, 2017 by Mary Allen, Minister of Industry 2017. Catalogue number 85-002-X ISSN: 1209-6393. Published by authority of the Minister responsible for Statistics Canada.

Cognizant of the fact that I have not received submissions on its utility in sentence, I merely cite this public document as it documents the increase in sentences for child pornography particularly after successive amendments to the mandatory minimum sentence applicable.

Constitutional Challenge

The defendant is entitled to an individualized proportionate sentence.

The analysis of the constitutional challenge must balance the fact that Parliament has the power to proscribe criminal conduct and the duty that this Court has to impose a just sentence that does not violate the guarantees in the Charter: R. v. Lloyd, 2018 SCC 13, at para. 1.

It is also clear that mandatory minimum sentences for offences that can be committed in diverse manners and circumstances are constitutionally vulnerable: Lloyd, at para. 3.

But in this case, on these particular facts, on the record that I have before me, I find that the constitutional challenge must fail. I have determined that the proportionate and just sentence in this case is 17 months jail which exceeds the 12 months mandatory minimum sentences.

Section 12 of the Charter

Section 12 of the Charter of Rights and Freedoms ensures that "Everyone has the right not to be subjected to any cruel and unusual treatment or punishment".

In R. v. Nur, 2015 SCC 15 at paras. 46 and 77, the Supreme Court of Canada outlined a two part test:

In summary, when a mandatory minimum sentencing provision is challenged, two questions arise. The first is whether the provision results in a grossly disproportionate sentence on the individual before the Court. If the answer is no, the second question is whether the provision's reasonably foreseeable applications will impose grossly disproportionate sentences on others. This is consistent with the settled jurisprudence on constitutional review and the rules of constitutional interpretation, which seek to determine the potential reach of a law, is workable, and provides sufficient certainty.

The Supreme Court of Canada provided further re-enforced this approach in R. v. Lloyd at paragraphs 22-23:

The analytical framework to determine whether a sentence constitutes a "cruel and unusual punishment" under s. 12 of the Charter was recently clarified by this Court in Nur. A sentence will infringe s. 12 if it is "grossly disproportionate" to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender: Nur, at para. 39 R. v. Smith, at p. 1073. A law will violate s. 12 if it imposes a grossly disproportionate sentence on the individual before the Court, or if the law's reasonably foreseeable applications will impose grossly disproportionate sentences on others: Nur, at para. 77.

A challenge to a mandatory minimum sentencing provision under s. 12 of the Charter involves two steps: Nur, at para. 46. 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. The Court need not fix the sentence or sentencing range at a specific point, particularly for a reasonable hypothetical case framed at a high level of generality. But the Court should consider, even implicitly, the rough scale of the appropriate sentence. Second, the Court must ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the offence and its circumstances: Smith, at p. 1073; R. v. Goltz, at p. 498; R. v. Morrisey, 2000 SCC 39, at paras. 26-29; R. v. Lyons, [1987] 2 S.C.R. 309, at pp. 337-38. In the past, this Court has referred to proportionality as the relationship between the sentence to be imposed and the sentence that is fit and proportionate: see e.g. Nur, at para. 26; Smith, at pp. 1072-73. The question, put simply, is this: In view of the fit and proportionate sentence, is the mandatory minimum sentence grossly disproportionate to the offence and its circumstances? If so, the provision violates s. 12.

With respect to procedure, the Court said at paragraph 18:

To be sure, it does not follow that a provincial court judge is obligated to consider the constitutionality of a mandatory minimum provision where it can have no impact on a sentence in the case at issue. Judicial economy dictates that judges should not squander time and resources on matters they need not decide. But a formalistic approach should be avoided. Thus, once the judge in this case determined that the mandatory minimum did not materially exceed the bottom of the sentencing range applicable to Mr. Lloyd, he could have declined to consider its constitutionality. To put it in legal terms, the doctrine of mootness should be flexibly applied. If an issue arises as to the validity of the law, the provincial court judge has the power to determine it as part of the decision-making process in the case. To compel provincial court judges to conduct an analysis of whether the law could have any impact on an offender's sentence, as a condition precedent to considering the law's constitutional validity, would place artificial constraints on the trial and decision-making process.

In this case I have determined that a fit and proportionate sentence is 17 months jail. While I have jurisdiction to consider the constitutionality of the minimum mandatory sentence in this case, I respectfully decline. I do not have jurisdiction to declare the section of no force and effect. The proportionate sentence in this case exceeds the mandatory minimum sentence. As such, the analysis of the Constitutional issue would have no impact on the sentence in this case.

On this basis, the constitutional challenge of the mandatory minimum sentence of one year is dismissed.

I will now move on at this time to address the particulars of the orders.

SOIRA

There will be a SOIRA order in this case. Possession of child pornography is a designated offence contrary s. 490.011(1)(a).

The maximum sentence is not more than 10 years. In July 17, 2015 Parliament raised the maximum penalty from five to 10 years. Thus I make an order pursuant to s. 490.012(1) for 20 years per s. 490.013(2)(b).

DNA Order

Child pornography is a primary compulsory offence as per s. 487.04 of the Criminal Code. I make the order for a sample of DNA.

Section 161 Order of Prohibition

With respect to the section 161 order I have considered the submissions of counsel. I have also considered the guidance of the Supreme Court of Canada in a case called KRJ, 2016 SCC 31.

The duration of the section 161 prohibition will be 15 years.

Nino Despot is prohibited from:

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

(b) 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.

(c) Having direct or indirect contact including communicating by any means with a person who is under the age of 16 years unless there is an adult over the age of 21 years present. Except for members of his immediate family or his spouse's immediate family.

(d) He is prohibited from using the internet or other electronic communication networks for the purpose of communicating directly or indirectly with persons under the age of 16 except for members of his immediate family or his spouse's immediate family.

I have considered the respectful submission of the Crown to impose further restrictions, electronic monitoring and to put his spouse in a position of supervisor over him. I have carefully considered that submission. Two things I will say. One, where imposing such conditions I should drive towards the least infringement on this gentleman's rights. Two, I am focused on the core which is communicating with children and by making this order in this fashion I believe that I have addressed it without doing the thing suggested by the Crown. That is the section 161 order of prohibition.

Forfeiture

Pursuant to Section 164.2(1) of the Criminal Code I am satisfied on a balance of probabilities that the things seized by the police were used in the commission of the offence and the property of the gentleman before the Court. All of the items seized by the police are ordered forfeited.

Probation Terms

Last of all, I am going to address probation terms.

I have indicated the duration of probation. I again appreciated the Crown has submitted 30 months and I understand the rationale for that. I have landed on 24 months. If the gentleman is sincere in his expression that he is going to get assistance, he is going to get it in the 24 months after his release from custody, if not prior. I am cognizant that he will have the opportunity to at least access some assistance while in custody.

Terms of probation are as follows:

1. Keep the peace and be of good behaviour. Appear before the Court when required to do so. Notify the Court or probation officer in advance of any change of name or address and promptly notify the Court or probation officer of any change of employment or occupation.

2. Report in person to a probation officer within seven working days of your release from custody and after that at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision.

3. Live at a place approved of by the probation officer and do not change that address without obtaining the consent of the probation officer in advance.

4. Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer for psychiatric or psychological issues. You shall sign any release of information as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed. You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

Closing Remarks

Crown Attorney if I could ask you at this point any submissions or clarifications needed on (a) the order of prohibition pursuant to s. 161 or the probation order terms?

MR. SKELTON: Not on behalf of the Crown Your Honour.

THE COURT: Thank you. Mr. Davoudi defence counsel, any submissions or clarifications with respect to those two items?

MR. DAVOUDI: No Your Honour.

THE COURT: Thank you. Mr. Despot sir would you please stand at this time. Sir you are going to get a copy of this in writing. Did you understand the terms of your prohibition?

NINO DESPOT: Yes.

THE COURT: Do you understand that if you do not follow the terms you can be charged with new criminal offences?

NINO DESPOT: Yes.

THE COURT: Do you understand the terms of your probation order?

NINO DESPOT: Yes.

THE COURT: The same thing applies if you don't follow your probation order you can be charged with new offences and brought back before the Court. Do you understand that?

NINO DESPOT: Yes.

THE COURT: Mr. Despot I am going to tell you as a judge I am not permitted to let sympathy weigh in I have to give a legal result in court. I sincerely hope that you will go and get the assistance that you need and you may be seated sir.

The victim fine surcharge of $200.00 must be imposed. That is the law. I will give the gentleman five years to pay the $200.00.

MR. DAVOUDI: Thank you.

THE COURT: Madam clerk anything that I have to address?

MR. GILLEN: There are other charges that haven't been dealt with Your Honour. I would ask that they be conditionally stayed pursuant to Kienapple.

THE COURT: Yes the other charges will be noted conditionally stayed. Mr. Davoudi anything further?

MR. DAVOUDI: No thank you.

THE COURT: Mr. Davoudi thank you for your assistance in this matter. Good luck.

MR. DAVOUDI: Thank you Your Honour. I thank my friend.

Released: May 4, 2018 Justice M. Felix