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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

(2) 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.

Court Information

Ontario Court of Justice

Date: September 13, 2018

Court File No.: Kitchener info # 16-8352

Between:

Her Majesty the Queen

— and —

A.R.

Before: Justice Scott Latimer

Heard on: May 16, July 26, and August 30, 2018

Reasons for Sentence released on: September 13, 2018

Counsel:

• Melissa Ernewein — counsel for the Crown
• Bruce Ritter — counsel for the defendant

Decision

LATIMER J.:

I. INTRODUCTION

[1] After a focused trial, I found A.R. guilty of making and possessing written child pornography. He had engaged in an online dialogue over two days with another individual in circumstances where I concluded that his written communications advocated or counselled sexual activity with persons under eighteen years of age. My reasons are reported at 2017 ONCJ 849. A.R. has subsequently applied under section 12 of the Charter for a finding that the operative mandatory minimum sentences – 6 months and 3 months, respectively – constitute cruel and unusual punishment. It is submitted that I should consider them unconstitutional and therefore not apply them, leaving me free to impose a sentence more appropriate to A.R.'s individual circumstances.

[2] For the reasons that follow, the application is dismissed.

II. FACTS

[3] A fulsome review of the facts can be found in paragraphs 5 to 14 of the trial judgment. Summarily stated, A.R. is married and the father of two stepdaughters, aged eight and eleven. On October 5, 2014, he engaged in an online dialogue with an unknown individual that involved "daddy-daughter roleplay and ageplay", as well as a discussion of sexual activity with actual children. The written exchange sexualized A.R.'s two stepdaughters and included sharing their photographs with the other party to the communication, M.M. A.R. described the girls as "blond hair nice ass" and "red head cute bum both skinny". After sending the girls' photos, he wrote about "hav[ing] fun with them both or hav[ing] them just rub my cock. Till I explode all over their tiny hands. But I know that won't happen". M.M. wrote back, "you never know anything can happen", to which the defendant replied, "I know. Sounds fun". The communication subsequently ended and the parties never met or corresponded again. A.R. was arrested two years later following the discovery of the email exchange on M.M.'s computer after M.M. was arrested for sexual contact with a seven-year-old child.

[4] As explained in my trial judgment, in particular paragraph 25, I was satisfied that A.R.'s written material, in context, actively encouraged illegal sexual activity with children under the age of eighteen. I found him guilty of both making and possessing child pornography. In October 2014, the Criminal Code prescribed mandatory minimum sentences of six and three months jail for these offences when the Crown elects by summary conviction.

[5] The applicant submits that an appropriate sentence on the present facts falls within a range between a suspended sentence and the intermittent range of jail. The Crown opposes the Charter application and recommends a jail sentence between six and eight months. A variety of ancillary orders have also been discussed and are largely not in dispute.

III. LAW

A. Section 12 of the Charter

[6] The Supreme Court of Canada recently discussed mandatory minimum sentences in R. v. Nur, 2015 SCC 15 and R. v. Lloyd, 2016 SCC 13. Sentencing is inherently individualistic, as different offenders and offences involve different considerations and often warrant different outcomes. One size does not necessarily fit all. A statutorily mandated minimum sentence departs from such an individualistic approach. As stated at paragraph 35 of the majority opinion in Lloyd:

[T]he reality is this: mandatory minimum sentences that, as here, apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are vulnerable to constitutional challenge. This is because such laws will almost inevitably include an acceptable reasonable hypothetical for which the mandatory minimum will be found unconstitutional.

[7] The Charter, however, accords meaningful deference to the statutory decisions of Parliament. Constitutional intervention will only be justified where the imposition of a mandatory minimum sentence would lead to a grossly disproportionate result. The Supreme Court has endorsed a two-step process to assist sentencing courts in answering this question: see Lloyd, supra, at paragraph 23:

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.

[8] Gross disproportionality is a high standard. Justice McWatt of the Superior Court neatly explained this concept last year in R. v. Cristoferi-Paolucci, 2017 ONSC 4246, at paras. 29-30:

a) What is "Grossly Disproportionate"

In Nur, at para. 39, the Court re-affirmed the previously established principle that, in order for a sentence to be found to constitute cruel and unusual punishment, it must be "grossly disproportionate" to the offence committed and the circumstances of that offender. Mr. Paolucci must establish that the sentence imposed under the subject legislation would be "so excessive as to outrage standards of decency", and be "abhorrent or intolerable" to our society. The Court also restated a caution previously set out in R. v. Smith, that courts dealing with these Charter challenges must, "be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation."

The applicant must establish that the MMS in this case would result in sentences that are not merely disproportionate or excessive, but are so grossly disproportionate, excessive, abhorrent and intolerable that they would outrage the standards of decency in our society.

B. Step One: What is a Proportionate Sentence?

(a) Child Pornography Sentencing Principles

[9] I recently reviewed these principles in R. v. Chislette, 2018 ONCJ 218 at paragraphs 16 to 20, and essentially reproduce here what I wrote there. Our Court of Appeal has repeatedly stated that deterrence and denunciation are the paramount sentencing principles in the child pornography context. In R. v. D.G.F., 2010 ONCA 27, Justice Feldman, writing for the Court of Appeal, made the following important observations about child pornography in paragraphs 21 and 22 of the judgment:

Over the last two decades, courts have been on a learning curve to understand both the extent and the effects of the creation and dissemination of child pornography over the internet and to address the problem appropriately: see, for example, R. v. Sharpe, 2001 SCC 2; Kwok. A number of relatively lenient sentences had been imposed in cases where child pornography was downloaded or distributed, there was no sexual abuse or making of child pornography involved, and there were many mitigating circumstances: see for example, R. v. Schan (2002); R. v. Weber (2003); R. v. Kim (2004). However, in cases that involved making child pornography and child sexual abuse, significant custodial sentences were imposed: see, for example, R. v. Jewell (1995); R. v. W. (R.), [2001] O.J. No. 2810 (Ont. S.C.J.).

Unfortunately, the incidence of this behaviour appears to be increasing and expanding as technology becomes more sophisticated, encouraging the production of child pornography and greatly facilitating its distribution. The victims are innocent children who become props in a perverted show, played out for an ever-wider audience not only of voyeurs but of perpetrators.

[10] The next year a panel of the Court, in R. v. Nisbet, 2011 ONCA 26, stated the following in the first paragraph of their endorsement:

Sadly, possession of child pornography facilitated through the internet is on the rise. It is an abhorrent crime that victimizes the most vulnerable members of our society and hence the need for sentences to reflect denunciation and deterrence.

[11] These principles were recently reaffirmed in R. v. Inksetter, 2018 ONCA 474, at paragraphs 15-26. Associate Chief Justice Hoy, writing for the court, employed strong language in paragraph 22 of the judgment while discussing the gravity of the offence:

Child pornography is a pervasive social problem that affects the global community and its children. In R. v. Sharpe, 2001 SCC 2, the Supreme Court described how possession of child pornography harms children. As Fraser C.J.A. wrote in R. v. Andrukonis, 2012 ABCA 148, at para. 29, "possession of child pornography is itself child sexual abuse." The children depicted in pornographic images are re-victimized each time the images are viewed. In amassing, viewing, and making available his vast and terrible collection to others, the respondent participated in the abuse of thousands of children.

(b) Factually Similar Sentencing Precedents

[12] As discussed with counsel during submissions, in my mind there is a distinction between the creation and possession of visual or written material involving imaginary children, written material involving real children, and actual images of children captured while the child is either being sexualized or sexually abused. While each of these categories satisfy the s. 163.1(1) Code definition for child pornography, the latter category contains the greatest aggravating features and concerns. For example, the re-victimization described in Inksetter does not occur when the subject matter at issue relates to imaginary individuals. Written material – even that which contains references to actual children – does not require exploitation or abuse as a condition precedent to its creation. Its existence, nevertheless, presents a risk of harm to children.

[13] The vast majority of the sentencing jurisprudence in this area involves images of actual children. In the context of this s. 12 Charter challenge, it is helpful to examine the modest amount of factually similar reported cases in order to assess whether the above-referenced sentencing principles apply with equivalent force in the written child pornography context. I have been provided three such cases by counsel: R. v. Levin, 2015 ONCJ 290, R. v. Houston, 2008 SKQB 174, and R. v. Yarmchuk, 2009 ABPC 155.

[14] In Yarmchuk, a father of two pleaded guilty to making child pornography available and received a three-month sentence for distributing written material, purporting to be chat logs between a father and his eleven-year old daughter, in an online forum. This material met the Code definition of child pornography. The sentence imposed was the summary conviction statutory minimum as of 2009. Since that time, Parliament amended the s. 163.1 Code provision and elevated the available sentences. In Inksetter, Hoy A.C.J.O. wrote in paragraph 24 that "Parliament's legislative initiatives signal Canadians' concerns regarding the increasing incidence of child pornography. Sentencing decisions that precede these amendments must be viewed with some caution."

[15] In Houston, the offender also pleaded guilty to making child pornography available. He distributed a significant amount of written stories and postings on what was described as a "pedophile website". He also encouraged other users of the site to do likewise. The sentencing judge imposed a fifteen month sentence of imprisonment, describing Mr. Houston as an "unrepentant… high profile contributor" to a website that encouraged sexual activity with children.

[16] Aspects of the Houston judgment were later questioned in Yarmchuk. For example, in Houston it was argued that written works do not engage the same denunciatory requirement as images, as actual children are not harmed in their creation. The court rejected that argument in paragraph 15 of the judgment:

With respect to the defence submission that child pornography writings do not in their production actually harm children the way a production of images do, and therefore not be subject to the same denunciation, two comments can be made. In the absence of evidence to the contrary, it cannot be assumed that writings do not stimulate the demand for images which do directly harm children. Second, not all pedophiles are voyeurs only. Some will act on their desires. Anything that stimulates that desire places children at risk in the real world.

[17] Subsequent courts have criticized this passage as creating a de facto presumption "that written child pornography stimulates demand for child pornography images of children": see Yarmchuk, supra, at para. 28; R. v. K.D.H., 2012 ABQB 471, at paras. 10-11. Justice Fradsham in Yarmchuk preferred a case-specific assessment of denunciation in the sentencing context. After reviewing the Supreme Court's statements in Sharpe regarding the purpose behind the child pornography criminal prohibition, he stated in paragraph 30:

Questions regarding the level of denunciation required in a particular sentencing will be determined by the facts of that sentencing. A case involving written child pornography may, or may not, require a greater, or lesser, or equivalent, denunciatory sentence than a case involving child pornography photographs. Each case will have to be decided on its own facts. Accordingly, I am reluctant to agree with the blanket proposition that the level of denunciation is the same for all forms of child pornography.

[18] The appropriate sentence for making written child pornography has also been addressed in this province by Justice Heather McArthur, at the time sitting on the Ontario Court of Justice, in Levin. Benjamin Levin pleaded guilty to possessing and making child pornography, as well as counselling a sexual assault. Mr. Levin posted under a pseudonym in an online chat environment, engaging other users in text-based communications regarding sexual activity with children. Two of these users were police officers, from different jurisdictions, each covertly purporting to be single mothers interested in sexual activity with children. Levin wrote them both material that strongly encouraged sexual abuse of their children, and involved grooming-type instructions to achieve this goal. The facts describe this activity occurring online for over a year.

[19] Mr. Levin was a sixty-three year old man with no prior record who possessed an "illustrious and distinguished career" in academia and government. He had attended counselling and received a psychiatric assessment following his arrest, and adduced glowing character references from friends, family and his professional community. McArthur J. accepted in her ruling that he was profoundly remorseful for his actions.

[20] Ultimately, despite these mitigating features, a three-year sentence was imposed: six months for possession, twelve months for making child pornography, and eighteen months jail for the counselling offence. With regard to the making offence, McArthur J. wrote that twelve months jail addressed the particular aggravating and mitigating features at play, and addressed "the paramount sentencing objectives of denunciation and general deterrence. And, importantly, it accords with the seriousness of the offence and Mr. Levin's moral culpability": see Levin, supra, paras. 68-70. Yarmchuk was distinguished on the basis that McArthur J. had received testimony from a psychiatrist that "written child pornography was harmful because it could create behaviours in the receiver who might act on it."

[21] Another relevant decision is R. v. Machulec (16 November 2016) (Ont. S.C.J.), an unreported judgment from the Superior Court of Justice. Mr. Machulec pleaded guilty to possession of child pornography, specifically over 7500 computer animated images. The images did not contain live children, but were animated representations in the genre commonly referred to as anime. They were organized in story-format depicting a progression of sexually-explicit activity. Justice Munroe wrote that the "fact that it was animated and did not contain real persons does reduce its harm and thus its harmfulness but it certainly does not eliminate its abhorrent nature. The gravity of the offence is high": Machulec, at p. 19. Eight months imprisonment was imposed for a first offender.

IV. ANALYSIS

[22] I accept, like Munroe J., that the possession of illicit material that does not involve the actual abuse or exploitation of real children remains a grave crime. At the core of s. 163.1 of the Code lies a concern for children and a desire to protect them against sexual abuse and exploitation. The Supreme Court in R. v. Sharpe, 2001 SCC 2, identified various harms visited upon children by child pornography. These harms range from the obvious – abuse related to the production and dissemination of the material – to the insidious; increasing the risk of future abuse and exploitation by creating cognitive distortions and "banalizing the awful, and numbing the conscience… [making] the abnormal seem normal and the immoral seem acceptable": Sharpe, at paras. 86-94; see also Levin, at para. 100. The written material created by the applicant clearly engages these latter concerns.

[23] My view in this regard is strengthened by the Ontario Court of Appeal's adoption of the following language in R. v. Jewell (1995), at 278, discussing the risks posed by the dissemination of all forms of child pornography:

The evil of child pornography lies not only in the fact that actual children are often used in its production, but also in the use to which it is put. Although behavioral scientists disagree about the reliability of scientific studies, there is general agreement among clinicians that some paedophiles use child pornography in ways that put children at risk. It is used to "reinforce cognitive distortions" (by rationalizing paedophilia as a normal sexual preference); to fuel their sexual fantasies (for example, through masturbation); and to "groom" children, by showing it to them in order to promote discussion of sexual matters and thereby persuade them that such activity is normal.

[24] Ultimately, I conclude that the six-month mandatory minimum for making child pornography is not grossly disproportionate in the circumstances of this case. I come to this conclusion for the following reasons:

(1) The related authorities all involve sentences in excess of six months, with the exception of the 2009 decision in Yarmchuk. That result, however, preceded the statutory amendments, and Inksetter recently cautioned against excessive reliance on such authorities. In the circumstances, I do not find Yarmchuk persuasive. As stated above, I accept that the gravity of this offence remains high.

(2) Having reviewed the matter as set out above, I am satisfied that the Court's statements in D.G.F., Nisbet and Inksetter are instructive in this case and direct my attention primarily to principles of deterrence and denunciation.

(3) Despite having fostered a discussion about real and imaginary children, I appreciate that the distinction in the present case is not nearly so neat. While children were not directly compelled to participate in the creation of A.R.'s writing, his stepdaughters are referred to, and their pictures used as props, in the dialogue between A.R. and M.M. These girls, I am told, were subsequently advised of their stepfather's conduct and have suffered understandable hurt and anguish as a result. I have received impact statements from both girls that bear out these representations. The use of his stepdaughters' pictures as part of an overtly sexualized discourse constitutes an aggravating factor.

(4) I accept that A.R. is remorseful for his conduct, and is a strong candidate for rehabilitation. The fact that he has completed eighteen sessions of counselling is evidence in this regard. While not mitigating per se, I also note that these writings were the only child pornography seized from A.R., and that almost four years have passed since these offences occurred. I do not believe that specific deterrence is a live issue in this sentencing.

[25] In conclusion, moving to the second step from Nur, a six-month sentence is not disproportionate – grossly or otherwise – in A.R.'s circumstances. Given my jurisdiction as a provincial court judge, I decline to consider the constitutionality of the provision in other hypothetical circumstances: Lloyd, at para. 18. I do not propose to formally suggest any sort of range for the creation of written child pornography. Each case gets determined on its own facts. I am satisfied, however, that the bottom of the range begins somewhere close to the six month statutory minimum. In the present case, given the limited duration of the conduct, the inclusion of his stepdaughters' photographs, A.R.'s status as a first offender, and the other mitigating features present, I am imposing a sentence of seven months jail, which I consider near or at the bottom of the present range for this form of conduct.

V. DISPOSITION

[26] The Charter application is dismissed. The information will reflect the following custodial sentences:

(1) Making child pornography – seven months jail

(2) Possessing child pornography – three months jail, concurrent

Released: September 13, 2018

Signed: Justice Scott Latimer

Footnotes

[1] I have also been aided by Justice Felix's comprehensive review of this area of the law contained in R. v. C.F., 2016 ONCJ 302 and R. v. Despot, 2018 ONCJ 556.

[2] I should make clear that I also come to the same conclusion with regard to the three month mandatory minimum sentence for possession. As the parties agreed that the sentences could run concurrently in this case, less attention was paid to this provision during submissions and in this judgment. I am aware that the indictable mandatory minimum sentence has been struck down very recently by the Court of Appeal in R. v. John, 2018 ONCA 702, on the basis of a reasonable hypothetical offender. I am further aware that the Superior Court of Justice has also recently struck down the indictable mandatory minimum sentence for making child pornography in R. v. Joseph, 2018 ONSC 4646. As is evident from these Reasons, however, I have not come to the same conclusion – on the facts before me – with regard to the lower summary conviction mandatory minimum sentences that existed at the time of these offences.