Court File and Parties
Court File No.: London 16-13140 Date: 2018-07-07 Ontario Court of Justice
Between: Her Majesty the Queen — and — Shiqi Zhang
Before: Justice Harris Bentley
Heard on: May 17, 2017, July 5, 2017, October 25, 2017 and January 18, 2018
Reasons for Charter Ruling given orally: February 22, 2018
Further submissions on sentence: May 4, 2018 and June 22, 2018
Written Reasons released: July 7, 2018
Counsel:
- Vanessa Decker, for the Crown
- Valdis Libis and Robert Sheppard, for the accused Shiqi Zhang
HARRIS BENTLEY J.:
Introduction
[1] Shiqi Zhang was arrested on December 14, 2016 and charged that he:
On or about February 15, 2016, at the City of London, did, without lawful excuse, possess child pornography, contrary to Section 163.1(4) of the Criminal Code.
[2] On January 19, 2017, the Crown elected to proceed by summary conviction. Section 163.1(4) of the Criminal Code provides that:
Section 163.1 (4) Every person who possesses any child pornography is guilty of
(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.
[Emphasis added]
[3] On May 17, 2017 the Applicant appeared in the Ontario Court of Justice in London and entered a plea of guilty to the charge. A finding of guilt was made on July 5, 2017. The sentencing hearing took place October 25, 2017 and January 17, 2018.
[4] The Applicant challenges the mandatory minimum sentence of six months imprisonment upon the grounds that it would constitute cruel and unusual punishment in abrogation of the Applicant's right under s. 12 of the Charter of Rights [hereafter referred to as "the Charter"], and, pursuant to Sections 24(1) of the Charter, argued that it is of no force and effect in the sentencing proceedings of this case.
The Analytical Framework for a s. 12 Charter Challenge
[5] The Supreme Court set out the analysis for determining whether a mandatory minimum sentence constitutes cruel and unusual punishment contrary to s. 12 of the Charter. Cruel and unusual punishment is a punishment that is more than merely excessive or disproportionate; it must be grossly disproportionate. To cross this high threshold, it must outrage the standards of decency and be so disproportionate that ordinary Canadians would find it abhorrent and intolerable.
R. v. Nur, 2015 SCC 15, at para. 39
R. v. Lloyd, 2016 SCC 13, at para. 24
[6] The analysis set out in Nur, supra and Lloyd, supra involves the court determining what constitutes a proportionate sentence for the offence before the court, having regard to the objectives and principles of sentencing. The court must then determine whether imposing the mandatory minimum would be grossly disproportionate. Should the court find that the imposition of the mandatory minimum sentence would be grossly disproportionate, the s. 12 breach will be established.
[7] If the analysis above does not lead to the conclusion that section 12 has been breached the Court should next consider whether a reasonable hypothetical, which engages the mandatory minimum, would be grossly disproportionate. This exercise should be guided by common sense and experience, and exclude from consideration far-fetched or remotely imaginable scenarios.
[8] This Court has no power to make formal declarations that a law is of no force and effect. However, in the event of a finding of a breach of s. 12 of the Charter pursuant to the foregoing analysis this court may determine the constitutionality of a law properly before it. The effect of a finding by the court that a law is unconstitutional permits the judge not to apply it to the case at bar.
Positions of the Parties
[9] The Crown's position is that Mr. Zhang should be sentenced to 6 to 8 months in custody. The Crown submits that the mandatory minimum sentence of six months is neither grossly disproportionate for Mr. Zhang nor for a reasonable hypothetical offender.
[10] The Applicant's position is that a fit sentence is one that is below the mandatory minimum and above an absolute discharge. The defence argues that the Applicant's guilt is established by a degree of negligence (not deleting unrequested child pornography received while downloading adult pornography) similar to the case of R. v. Morrison, 2017 ONCA 582. In that case, the accused was found guilty as a result of his negligence (failing to take all reasonable steps to ascertain the correct age of his co-communicant). Although the defence suggested that Mr. Zhang's circumstances would be close to the original reasonable hypothetical discussed at the hearing, it is the applicant's position that the mandatory minimum sentence would be grossly disproportionate for both this offender, the original hypothetical offender and the hypothetical offender discussed at the last hearing date.
Circumstances of Case
[11] Google reports suspected child pornography activity to all subscribing law enforcement agencies (which includes the London [Ontario] Police Service) by way of CyberTipline. On February 17, 2016, Google reported on CyberTipline that a suspected child pornography file had been uploaded to a Google Drive (cloud storage) on February 15, 2016.
[12] On May 2, 2016, London Police Service Detective Page, using the CyberTipline-reported hashtag, was able to review the 6 minute, 15 second file (a recorded video). It depicted an adult male penetrating an approximately 8 to 10 year old female with his penis.
[13] Detective Page was able to connect the account to an I.P. Address which was tied to a London, Ontario Rogers Cable account. On August 10, 2016, Detective Pelkey applied for and was issued a search warrant authorizing a search at a London address for evidence relevant to child pornography offences.
[14] The search warrant was executed on August 11, 2016. No child pornography was found from the seizure of all the computers at the house. London Police determined that the Applicant, Shiqi Zhang, had been residing in the house in February 2016 and had gone back home to China for the summer. He was expected to return to Canada for the commencement of the September 2016 school term.
[15] Detective Page forwarded the Applicant's photograph and personal identifying information to Canada Border Services and the U.S. Department of Homeland Security. Both agencies were advised that the Applicant was under police investigation for possible child pornography offences.
[16] On September 1, 2016, the Applicant arrived at the Chicago Airport, on route from China to Canada. As he was flagged in the Homeland Security information system, the Applicant was detained and questioned by a Homeland Security officer. The cell phone being carried by the Applicant and the laptop computer in the Applicant's luggage were seized and examined. A child pornography digital file was found on the cell phone.
[17] The Applicant, for whom English is a second language, was asked the following:
Q. Why do you have pictures of child pornography on your cell phone? A. I feel boring and want to find some.
Q. What do you mean you want to find some? A. Find some funny or interesting.
Q. Why do you have child pornography videos on your laptop? A. When I downloaded I did not realize that it was child pornography. I downloaded many films.
Q. What website did you download child pornography from? A. I forgot. Coladriver, it's the website name. But I don't know the link of the website.
Q. Who do you exchange child pornography videos with? A. I don't exchange them. I just downloaded them and put some on Google Cloud.
Q. Why did you post child pornography videos on the Google Cloud after you downloaded them? A. To save my computer usage, because I do not know that other can download from what I update on Google Drive.
Q. Why do you like watching child pornography? A. I feel boring, but I don't really watch them. I play video games. I quick watch it.
Q. Why do you quick watch child pornography? A. After I finish playing games, I feel boring, and I scan some.
Q. Have you ever had any type of sexual intercourse with a minor? A. No.
[18] The Applicant was sent back to China and was then ineligible for re-admission to the United States. Homeland Security then advised the London Police Service of the events at the Chicago Airport and the Applicant's return to China.
[19] The Applicant returned to Canada in September 2016, and continued his studies at Western University. Arrangements were made for the Applicant's seized cell phone and computer to be sent from the United States to Canada. Detective Page located six child pornography videos and seven still child pornography images on the computer.
[20] Detective Page located the video described above as well as a 12 minute, 4 second video showing the sexual assault of a 7 to 9 year old female being penetrated by a thermometer as well as digital penetration. A third video, 12 minutes, 5 seconds long depicts the penetration of the 7 to 9 year old female by an adult male's penis. The remaining videos and still photographs were not described other than that they constituted child pornography.
[21] On December 14, 2016, the Applicant was arrested at the University and was transported to the London Police Station. The Applicant was polite and cooperative throughout that process. Although the Applicant denied having committed any offences, he did admit to knowing about the videos on his computer. The Applicant was held in custody and was released on bail December 28, 2016.
[22] The Applicant admitted to searching for adult pornography from time to time. He received unrequested child pornography along with the adult pornography. He stored his pornography collection which included the child pornography on Google Drive (the cloud). From time to time he viewed the child pornography. He did not search for it particularly nor did he share it in any way. The Crown does not dispute the Applicant's description of his use and storage of the child pornography.
Circumstances of the Offender
[23] The Applicant was born in Tangshan, China on December 17, 1995 and was 19 years old on the date of the offence. He is an only child. The Applicant's mother worked in a different city than where the family resided, so, in his formative years, the Applicant's grandmother was his primary caregiver. Despite his parents' work-related absences, the Applicant viewed his family as closely-knit.
[24] The Applicant was a diligent student and played some sports, but his primary recreational interest was in playing video games, a competitive sport in China. When he was 14 years old, the Applicant left his hometown to attend a boarding school, where the heavy workload left little time for personal pursuits. He started to learn English and became conversationally capable in the language. The Applicant has never used drugs or alcohol. In his teenage years, the Applicant was involved in dating relationships with young women proximate to him in age.
[25] In 2014, the Applicant came to Canada on a student permit, having been accepted as a foreign student at Western University. He worked on improving his English language skills and was majoring in Economics. His hope and the family plan were for him to enter a career in international business. The Applicant's schooling was an enormous investment for the Applicant and his family. When not in school, he returned to China to be with his family.
[26] At the end of the sentencing submissions, Mr. Zhang expressed remorse to the Court for engaging in this criminal conduct and for the effect that it had upon himself, his friends and his family. He said that it was his responsibility to handle the consequences, adding that the half month he spent in custody was scary and taught him a lesson. Mr. Zhang said that he would never commit a crime again.
The Report of Len Kushnier, M.S.W., R.S.W.
[27] In May of 2017, the Applicant attended for an assessment by Len Kushnier, a London, Ontario psychotherapist and consultant who specializes in the assessment and counselling treatment of sexual offenders and who had, for many years, treated sexual offenders in the correctional and probation system. The report contained an opinion regarding Mr. Zhang's risk to reoffend.
[28] Although the report was filed with the court as a part of the Applicant's materials, the Crown submits that no weight should be given to Mr. Kushnier's opinions. The Crown indicated that it would have cross-examined Mr. Kushnier on a wide-ranging number of topics had he been produced at the sentencing hearing. The Crown pointed to reported cases where Mr. Kushnier changed his opinion of risk during cross-examination as a result of receiving further information which he did not have while making his assessments.
[29] Although I will not give weight to Mr. Kushnier's professional opinion as to risk, I do accept information about discussions had and observations made by Mr. Kushnier as information that is reliable as I would from a Presentence Report. The Crown accepts that Mr. Kushnier noted accurately what he was told by the Applicant and did not object to me considering Mr. Kushnier's description of the Applicant's stated present understanding of the criminal offence.
[30] Of note, I accept what Dr. Kushnier reported under the title, Attitudes and Capacity for Victim Empathy:
Shiqi was able to give an accurate answer as to the necessity for sanctions about the sexual abuse of children. He understands that it is a betrayal of trust, that adults have more power, there is a lack of consent and it causes harm to children. He appreciates that the viewing of sexually explicit images of children contributes to actual harm to children (i.e. it supports the exploitation of children). Overall, his expressed attitudes are clearly pro-social and he is very respectful of the wellbeing of children and women.
He appears to have the capacity for empathy and even though the viewing of pornography does not entail a "contact" offence, he appreciates that children are being abused in the making of the child pornography.
[31] This view is supported by submissions from Mr. Libis who indicated that he also had had long interviews with Mr. Zhang discussing the same issues.
[32] The Crown asks that I give no weight to Mr. Kushnier reporting that the Applicant said that he did not understand that the possession of child pornography was viewed differently from the possession of adult pornography. He reported this to Mr. Kushnier, but the Crown was denied the ability to cross-examine Mr. Kushnier about what questions led to this disclosure. I note that Mr. Zhang told police when he was arrested that he had not committed any offences despite admitting that he had child pornography on his computer. Defence counsel also reported that Mr. Zhang did not understand the law. In my view this supports his self-report to Mr. Kushnier and I accept that that was his perception.
[33] Mr. Kushnier recommended psycho-educational counseling would assist the Applicant in seeing the clearly defined boundaries of what is and is not tolerated sexual material.
The Immigration Consequences
[34] Edward Corrigan, a London lawyer who specializes in immigration matters was consulted about the likely repercussions of the Applicant's conviction on the subject charge. In his report, Mr. Corrigan explains that the conviction draws into application s. 36 of the Immigration and Refugee Protection Act.
[35] Mr. Corrigan stated, "To summarize, a conviction by the Canadian Court of unlawfully possessing child pornography will deem Mr. Zhang criminally inadmissible to Canada and this can create an unusual, undeserved and disproportionate hardship to his intentions to remain in Canada as a student. This will also trigger automatic removal proceedings for Mr. Zhang, which will be led by the Canada Border Services Agency."
[36] The Crown took exception to the descriptors of Mr. Zhang's hardship as unusual, undeserved and disproportionate but agreed that Mr. Zhang will be inadmissible to Canada. The Crown would also have liked to cross-examine Mr. Corrigan about the speed of the ensuing deportation, what steps would likely be followed, and, indeed, the likelihood of it actually taking place, but he was not presented for that purpose.
[37] The sentence given to Mr. Zhang, other than an absolute discharge, will make no difference to his immigration status. The Applicant concedes that an absolute discharge is not an appropriate sentence. The Applicant contends that the fact that Mr. Zhang will be inadmissible is a factor I should consider on sentencing.
Letters in Support of the Applicant
[38] Several people have submitted letters stating their support for the Applicant, both from Ontario and from China. He is described as a respectful, responsible, kind, devoted, compassionate and honest young man. It is apparent that the Applicant is taking his current legal situation very seriously and expects that the consequences will change the life and career path that he and his family had mapped out for him when he came to Canada to attend university.
[39] Of particular note is a letter from Jiandong Gao, the dean of a sanatorium hospital in Luan City, China, which was established for those disabled by the Tangshan earthquake of 1976. Mr. Zhang volunteered at the sanatorium, feeding patients and doing their laundry amongst other tasks. He developed a close relationship there with an elderly patient spending time with him and making the patient feel that he had a grandchild.
[40] Two of the letters indicate that, while possession of child pornography is not condoned in China, a first-time charge is looked upon as a much less serious offence than is the making or distributing of such material. The Crown contends that as no proper evidence was called regarding the law in China – there were 2 letters, one from a judge and one from a police officer – this court could not consider that the law in China is as the Applicant depicts. The Crown is correct. In my view, however, what matters is the Applicant's perception of the law. It does not, of course, afford the Applicant any defence to his charge further to s. 19 of the Criminal Code, but perhaps explains in part how this young man came to be in this current situation. In my view, the Applicant's ignorance of Canadian law can lessen the moral blameworthiness of the offender.
R. v. Machulec, (16 November 2016), Windsor, 14/3150 at pg. 17
Sentencing Principles
[41] McLachlin C.J. in Nur, supra instructs that the sentencing judge must have regard to the sentencing objectives set out in s. 718. McLachlin C.J. continues at paras. 41 – 43:
41 The sentencing judge must also have regard to the following: any aggravating and mitigating factors, including those listed in s. 718.2(a)(i) to (iv); the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)); the principle that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2(c)); and the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)).
42 In reconciling these different goals, the fundamental principle of sentencing under s. 718.1 of the Criminal Code is that "[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender."
43 It is no surprise, in view of the constraints on sentencing, that imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime: R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 80. "Only if this is so can the public be satisfied that the offender 'deserved' the punishment he received and feel a confidence in the fairness and rationality of the system" (Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 533, per Wilson J.). As LeBel J. explained in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433:
Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system... Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other. [para. 37]
[42] McLachlin C.J then warns of the potential danger of mandatory minimum sentences at para. 44:
Mandatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing. They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. They function as a blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range. They may, in extreme cases, impose unjust sentences, because they shift the focus from the offender during the sentencing process in a way that violates the principle of proportionality. They modify the general process of sentencing which relies on the review of all relevant factors in order to reach a proportionate result. They affect the outcome of the sentence by changing the normal judicial process of sentencing.
[43] McLachlin C.J. emphasized in Lloyd, supra at para. 35 that:
Mandatory minimum sentences that apply to offences 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. If Parliament hopes to sustain mandatory minimum penalties for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit the mandatory minimum sentences.
[44] The applicable Criminal Code provisions are as follows:
(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 acknowledgment of the harm done to victims or to the community.
718.2 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.
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
The Seriousness of the Offence
[45] As stated by Woollcombe J. in R. v. John, 2017 ONSC 810 at para. 17:
The jurisprudence is replete with statements about the harms caused by child pornography. More than fifteen years ago in R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, McLachlin J., as she was then, set out the harms caused by the possession of child pornography at paras. 86-94. She accepted that evidence establishes several connections between the possession of child pornography and harm to children: (1) child pornography promotes cognitive distortions; (2) it fuels fantasies that incite offenders to offend; (3) it is used for grooming and seducing victims; and (4) children are abused in the production of child pornography involving real children. McLachlin J. then concluded at para. 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.
[46] McLachlan J. continued at paras. 158 to 159:
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 eroticises the inferior social, economic, and sexual status of children. It preys on preexisting inequalities.
The Report on Pornography by the Standing Committee on Justice and Legal Affairs (1978) (MacGuigan Report), spoke of the effects of pornography as follows (at p. 18:4):
The clear and unquestionable danger of this type of material is that it reinforces some unhealthy tendencies in Canadian society. The effect of this type of material is to reinforce male-female stereotypes to the detriment of both sexes. It attempts to make degradation, humiliation, victimization, and violence in human relationships appear normal and acceptable. A society which holds that egalitarianism, non-violence, consensualism, and mutuality are basic to any human interaction, whether sexual or other, is clearly justified in controlling and prohibiting any medium of depiction, description or advocacy which violates these principles.
[47] The consumption of this material fuels the production of it, and hence results in more sexual abuse of children. As the Ontario Court of Appeal said in a case involving a deliberately collected set of photographs, magazines and drawings:
The possession of child pornography is a very important contributing element in the general problem of child pornography. In a very real sense possessors such as the appellant instigate the production and distribution of child pornography - and the production of child pornography, in turn, frequently involves direct child abuse in one form or another.
R. v. Stroempl (1995), 105 C.C.C. (3d) 187 (Ont.C.A.), at pg. 191.
[48] Parliament has enacted mandatory minimums for the possession of child pornography and then increased them over time as set out below:
Prior to October 31, 2005
- By indictment: No mandatory minimum sentence, punishable by a maximum of five years imprisonment;
- By summary conviction: An offence punishable on summary conviction [i.e. no mandatory minimum sentence, maximum sentence of six months imprisonment].
From November 1, 2005 to August 8, 2012
- By indictment: Mandatory minimum sentence of 45 days imprisonment, punishable by a maximum of five years imprisonment;
- By summary conviction: Mandatory minimum sentence of 14 days imprisonment, punishable by a maximum of 18 months imprisonment.
From August 9, 2012 to July 16, 2015
- By indictment: Mandatory minimum sentence of six months imprisonment, punishable by a maximum of five years imprisonment;
- By summary conviction: Mandatory minimum sentence of 90 days imprisonment, punishable by a maximum of 18 months imprisonment.
From July 17, 2015 to Present
- By indictment: Mandatory minimum sentence of one year imprisonment, punishable by a maximum of ten years imprisonment;
- By summary conviction: Mandatory minimum sentence of six months imprisonment, punishable by a maximum of two years less a day imprisonment.
[49] At the same time, courts emphasized the gravity of the offence. The primary principles in sentencing are denunciation and deterrence as set out in R. v. Stroempl, ibid at para. 9; R. v. D.G.F., 2010 ONCA 27 at paras. 21-22 and in s. 718.01 of the Criminal Code which was enacted in 2005. S. 718.2 (a)(ii.1), enacted in 2007, sets out that the abuse of children is an aggravating circumstance.
[50] Feldman J.A. in R. v. D.G.F., ibid, stated at paras. 21-22:
[21] 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, [2001] 1 S.C.R. 45; 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), 155 O.A.C. 273; R. v. Weber (2003), 175 O.A.C. 138; R. v. Kim (2004), 181 O.A.C. 88. However, in cases that involved making child pornography and child sexual abuse, significant custodial sentences were imposed: see, for example, R. v. Jewell; R. v. Gramlick (1995), 100 C.C.C. (3d) 270 (O.C.A.); R. v. R.W., [2001] O.J. No. 2810.
[22] 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.
Appropriate Sentence for the Applicant
[51] The mitigating and aggravating factors are as follows:
Mitigating Circumstances
[52] The mitigating factors are:
Mr. Zhang has entered a plea of guilty;
Mr. Zhang has no criminal record;
Mr. Zhang was a young man of 19 years of age at the time of the commission of the offence;
Mr. Zhang has a good support network as evidenced by the letters of support filed in this Application;
Mr. Zhang is in school and advancing his education;
Mr. Zhang has been a contributing member of his community both in Canada and in China as evidenced by the letters of support;
Mr. Zhang has attended for assessment with Len Kushnier for an assessment of risk and for suggestions to prevent recidivism. I do not take into account Mr. Kushnier's risk assessment because of the issues set out above;
Mr. Zhang now has an appreciation of the conduct, including empathy for the victims which indicates remorse and a receptivity to rehabilitation, see Machulec, supra, at pg. 11;
Mr. Zhang will no longer be admissible to Canada as a result the conviction. His longstanding plans on which he and his family have worked diligently for a long period of time, will be significantly disrupted if not completely destroyed. These negative collateral consequences assist in personal deterrence and denunciation and can be considered mitigating factors. Machulec, ibid at pg. 17;
Mr. Zhang did not search for child pornography. He received it when he was looking for adult pornography;
The number of videos and photographs was relatively small in the context of cases regarding child pornography; and
Mr. Zhang was ignorant of the Canadian law.
Aggravating Factors
[53] The aggravating factors are:
(1) The vile and degrading content of three of the six pornographic videos depict children engaged in invasive and inherently violent activity showing vaginal penetration of children by adult penises, a finger and a thermometer. On a scale of egregiousness of content, it is on the upper end;
(2) The children depicted were young, between 7 to 9 years of age; and
(3) The offence is statutorily aggravating as it involves the abuse of a person under the age of eighteen years (section 718.2(a) (ii.1)).
Further Factors
[54] A further factor to consider is that Mr. Zhang has abided by his bail conditions and has not committed any further offences.
Sentencing Case Law
[55] Counsel provided a joint case book with a number of sentencing cases, all of which were proceeded with by indictment, which were considered in R. v. John, supra. There is no case provided to the court of possession of a small amount of pornography where the Crown proceeded by summary conviction, coupled with the fact that the perpetrator did not seek out the prohibited material.
[56] The cases provided present a range of 6 months to three years. However, they are more serious than the matter before the court. Many of the sentences for the possession of child pornography came in tandem with sentences for the more serious offence of making available child pornography or involve offenders with larger collections of child pornography. All involve the accused deliberately downloading or collecting images, pamphlets and magazines except perhaps for Nisbet, ibid which, because of the file names, suggests that they were at least not unknowingly downloaded.
[57] The following cases involve the charge of simple possession of child pornography:
[58] In R. v. Dansereau, 2014 ONCJ 250, Bishop J. sentenced an offender who pleaded guilty to possession of child pornography to fifteen months jail. The mandatory minimum applicable was forty-five days. The offender possessed 535 images and 31 movies which was considered to be an average size collection. He was a fifty-five year old first offender. While he had received counselling, he still failed to appreciate the severity of the offence and remained a risk.
[59] In R. v. Kwok, [2007] O.J. No. 457 the offender was convicted of possession of child pornography, pleading guilty after hearing the first witness at trial. The offence was committed before any mandatory minimum was in force. Mr. Kwok was a twenty-nine year old first offender. He had a collection of 2000 photographs and 60 videos. Molloy J. found that the offender failed to demonstrate any insight into the offence nor genuine remorse. The nature and extent of the pornography was an extremely aggravating factor. Mr. Kwok was sentenced to one year in jail.
[60] In R. v. Dumais, 2011 ONSC 276, the offender pleaded guilty to possession of child pornography. His collection had 170 images and 44 movies of child pornography depicting sexual acts with young female bodies. He downloaded the images out of curiosity. Dumais was a 36 year old with no record and with a respected career as a teacher. He had suffered serious personal repercussions including losing his job and being subjected to media scrutiny. He had received treatment and there was a medical opinion that he was at low risk of re-offending. Ratushny J. emphasized at para. 13 that by downloading the images, Dumais was also participating in and encouraging the existence of a market for child pornography. He was therefore encouraging others to victimize and commit similar violence against more children. He was creating a link between his possession and the sexual abuse of children beyond those depicted in the images on his computer. While the mandatory minimum was forty-five days, Ratushny, J. concluded that the minimum sentence that could give effect to denounce and deter the crime was nine months.
[61] In R. v. Machulec, supra, Munroe J. imposed a sentence of 8 months for an offender convicted on one count of possession of child pornography. The mandatory minimum sentence was six months. The offender had 7,694 images of child pornography on his computer. They were not live persons, but were high quality animation. The court found that the fact that it was animated and did not contain real persons did reduce its harm and thus its harmfulness but did not eliminate its abhorrent nature. The offender was sixty-five years old with no criminal record. He had worked his entire life and been a good community member. He did not know of the illegality of his actions. By the time of sentencing, he still lacked insight into the severity of his conduct.
[62] In R. v. Nisbet, [2010] O.J. No. 6258 (S.C.J.); aff'd 2011 ONCA 26, the accused pleaded guilty to one count of possession of child pornography. His collection included 28 images and 43 videos. The videos showed children aged between four and fourteen years of age engaged in various sex acts with other children, adult males, including masturbation, fellatio and anal and vaginal intercourse. Nisbet said that he had no interest in child pornography, but many of the files bore titles suggestive of child pornography. The trial judge declined to impose the mandatory minimum sentence of forty-five days and, instead, imposed a sentence of six months on an offender who she found had strong prospects for rehabilitation. This was affirmed by the Court of Appeal.
[63] In R. v. John, supra, the offender pled guilty after an adverse Charter ruling. He had 89 videos and 50 unique images that were child pornography which the court found to be aggravating. The images depicted girls between the ages of 4 and ten being penetrated anally by an adult penis or sex toy as well as oral sex. Woollcombe, J. determined that a sentence of 10 months and probation was appropriate.
[64] These cases present a range of 6 months to 15 months. The sentences for the possession of child pornography involve offenders with larger collections of child pornography. All involve the accused deliberately downloading or collecting images, except perhaps for Nisbet, ibid which, because of the file names, suggested that they were at least not unknowingly downloaded, a fact commented upon by the Court of Appeal. Some of the cases also indicated that the offenders did not have insight at the time of sentencing.
[65] In my view, the fact that the Applicant did not search for the materials is a substantial mitigating factor. There is no suggestion that the file names made clear the content of the videos or photographs. One of the most egregious harms of consuming the material, as set out above, is that it creates a market for the further sexual abuse of children. The Applicant did not deliberately engage in an activity which generated further demand. The Applicant also had insight into his behaviour at the time of sentencing.
[66] However, I must still take into account that the keeping and continued occasional viewing of the material may have promoted cognitive distortions and that it may have fueled fantasies that incite some offenders to offend. There is no suggestion that the material was used to groom and seduce victims, but there was the danger, as a result of the possession, that it may have done so.
[67] The Applicant submits that if Mr. Zhang had committed the offence just seven months earlier, he would be facing a mandatory minimum sentence of 90 days imprisonment leaving open the door for an intermittent sentence. The Applicant suggests that a sentence no greater than the 90 day mandatory minimum sentence would likely have been imposed but for the change to the mandatory minimum on July 17, 2015.
[68] The Applicant asks me to consider the case of R. v. Morrison, supra. In that case, the accused was found guilty of internet luring as he had failed to take reasonable steps to ascertain the correct age of the co-communicant. His liability arose as a result of his negligence and not as a result of his knowingly or actively seeking out communication with an underage person. Pardu J.A. endorsed as correct the trial judge's findings at para. 105:
In determining what would be an appropriate sentence for Morrison, he stated that, because Morrison was found to be unreasonably indifferent to the age of the interlocutor with whom he was communicating, his conduct was less blameworthy than an offender who enters into communications with an interlocutor who he knows or actively hopes is underage. Morrison was guilty of continuing a dialogue without taking reasonable steps to ensure the he was not communicating with a child.
[69] At paras. 128 to 130, Pardu J.A. considered the sentencing range for internet luring offences that was acknowledged as appropriate prior to the July 2012 enactment of the one year mandatory minimum sentence for internet luring (prosecuted by indictment), especially the cases in which sentences of less than one year imprisonment were upheld by the Court of Appeal:
What emerges from this brief review of the case law on the range is that the parameters established in Jarvis are flexible and dependent on the particular facts of the case. The range of seriousness of offences committed under Section 172.1 is evidently very wide. As with all sentencing decisions, much will depend on the specific facts of the case and the circumstances of the offender and the nature of the offence at issue. Here, the Trial Judge considered these facts comprehensively and correctly sought the guidance set out in Woodward. I can discern no error in principle that would undermine the Trial Judge's assessment that a sentence of four months' imprisonment was appropriate for this offence and this offender: see R. v. Lacasse, at para. 44; and R. v. K. (C.), 2015 ONCA 747, 342 O.A.C. 87 (Ont. C.A.), at para. 51." [Emphasis added]
[70] The Applicant suggests that there are parallels between the case at bar and Morrison. In this case, the Applicant received the child pornography incidentally when he requested adult pornography and finds himself guilty of the possession charge as a result of not deleting the offending material. The Applicant contends that he was negligent in not being diligent.
[71] In my view, Mr. Zhang's liability arose initially as a result of him not deleting the unrequested material. He also, however, after knowing what he had, saved it and viewed it from time to time.
[72] In my view an appropriate and proportionate sentence for the Applicant is four months in custody followed by probation with terms of counseling to reduce recidivism as well as to continue to educate the Applicant about the grave repercussions of possessing child pornography. This sentence takes into account the serious nature of the offence, the Applicant's moral blameworthiness and the mitigating and aggravating factors as set out above. It addresses the paramount principles of deterrence and denunciation. It represents a serious sentence for this young first-time offender.
Is the Mandatory Minimum Sentence Grossly Disproportionate for this Offender?
[73] I must now determine whether imposing the mandatory minimum would be grossly disproportionate. Given that the mandatory minimum sentence is 6 months, I find that although the fit sentence is lower, the imposition of the mandatory minimum would not be grossly disproportionate. It would not outrage the standards of decency and be so disproportionate that ordinary Canadians would find it abhorrent and intolerable. It would not, therefore, breach the Applicant's s. 12 Charter rights.
Reasonable Hypotheticals
[74] I must next consider whether a reasonable hypothetical, which engages the mandatory minimum, would be grossly disproportionate.
[75] During the sentencing hearing, a hypothetical was discussed involving a person sending the offender a photograph that constituted child pornography and the recipient of the photograph viewing it and simply not deleting it from their device. This hypothetical is less egregious than the case at bar as the person only sees it once when receiving it and simply does not delete it. They do not look at it from time to time. They do not store it on the cloud. Using the same analysis as set out above, in my view this would warrant a lower sentence in the intermittent range. If a six month mandatory minimum sentence is not grossly disproportionate, it comes very close.
[76] Counsel also gave submissions regarding the hypothetical set out in R. v. LeCourtois, 2016 ONSC 190, and again in Machulec, supra and John, supra during the last day of submissions. The hypothetical is that a 17 year old subject of the pornography creates a photograph and sends it to the offender with whom she has a friendship. The offender deletes it after a short period of time. During submissions, the scenario was changed to the offender deleting the picture after a period of time such as three months at the end of the friendship. Clearly if it were deleted immediately, there would be no offence as there would be no intention to possess the image. In my view, this is a reasonable hypothetical. In the age of social media, this is not a far-fetched nor remotely imaginable scenario.
[77] In my view this scenario is not captured by the exception to the definition of child pornography created in R. v. Sharpe 2001 SCC 2, [2001] 1 S.C.R. 45 and would be considered a criminal offence. In upholding s. 163.1(4), McLachlin, C.J. created two exceptions to the definition of child pornography. She held at para. 116 that:
The second category would protect auto-depictions, such as photographs taken by a child or adolescent of him- or herself alone, kept in strict privacy and intended for personal use only. It would also extend to protect the recording of lawful sexual activity, provided certain conditions were met. The person possessing the recording must have personally recorded or participated in the sexual activity in question. That activity must not be unlawful, thus ensuring the consent of all parties, and precluding the exploitation or abuse of children. All parties must also have consented to the creation of the record. The recording must be kept in strict privacy by the person in possession, and intended exclusively for private use by the creator and the persons depicted therein. Thus, for example, a teenage couple would not fall within the law's purview for creating and keeping sexually explicit pictures featuring each other alone, or together engaged in lawful sexual activity, provided these pictures were created together and shared only with one another. [emphasis added]
[78] McLachlin C.J. held that this exception raises little or no risk of harm to children.
[79] As the photograph in the reasonable hypothetical is taken by the person depicted and the recipient did not participate in any way, the exception to the definition of child pornography in s. 163.1 does not apply.
[80] Kent, J., in LeCourtois, supra, at para. 14, considered the hypothetical and concluded that:
There are no doubt members of the judiciary who might consider the imposition of a non-custodial sentence upon the accused in either or both of the reasonable hypothetical situations as appropriate. A brief period of incarceration, however, would not be outside the appropriate range. This is particularly so when the mandatory minimum sentence is one that could be served intermittently. [Emphasis added]
[81] Kent J. expressed the concerns that child pornography has become increasingly pervasive in modern society and re-iterated the enormous harm it causes to children. In citing cases supporting these concerns, the continued abuse of children was the paramount consideration. He determined that the public would not be offended by a brief period of incarceration of the offender in these circumstances – in that case the mandatory minimum was 45 days.
[82] In Machulec, supra, Monroe J. considered the same hypothetical and determined that the mandatory minimum of six months was not grossly disproportionate given the nature of the crime and the harm to the children it seeks to reduce.
[83] Woollcombe J., in John, supra at paras. 84 - 87 considered the hypothetical and found it not to be a reasonable one as the fact of the deleting of the file may have provided a defence. Woollcombe J. held that if the hypothetical were amended so that the file was not deleted then a six month sentence was not disproportionate.
[84] With respect, I disagree. In my view the proportionate sentence in this circumstance, assuming a young accused with no record, would be a suspended sentence and probation because of the lowered moral culpability and lessened risk of harm to the sender. The accused would not be creating a demand for child pornography, nor would he be victimizing the creator of the image who made it expressly to be viewed by the offender. In other words, it raises little or no risk of harm to children as McLachlin C.J. in Sharpe, supra determined in establishing the second exception to be read into to the definition of child pornography for young people in a very similar circumstance.
[85] In my view a sentence of 6 months incarceration, well out of the intermittent range, would be grossly disproportionate, and the public would find it abhorrent and intolerable. The application of the mandatory minimum to a wide range of behaviour - from receiving and retaining one unrequested photograph of child pornography in the context of a relationship to actively searching out and compiling collections of children being sexually abused - would result in sentences that are grossly disproportionate for some individuals.
[86] The s. 12 Charter breach is established. The Crown did not attempt to justify any s. 12 infringement under s. 1 of the Charter. I find the mandatory minimum sentence set out in s. 163.1(4) (b) of the Criminal Code to be unconstitutional and I decline to apply it to the case at bar.
Preplea Custody
[87] Mr. Zhang spent 14 days in preplea custody. A sentence of four months less his enhanced preplea custody of 21 days leaves 99 days to be served, 9 days over the maximum allowed for an intermittent sentence. An intermittent sentence would allow Mr. Zhang to continue with his education and to complete as much as possible before he is sent back to China.
[88] Mr. Zhang is a slight young man, convicted of an offence which may well make him a target while in custody. There is no doubt in my mind that he would be safer in the intermittent unit, separated from the regular population.
Restrictive Bail Conditions as a Mitigating Factor
[89] Counsel for Mr. Zhang has requested that I accept as a mitigating factor that the terms of bail were restrictive and asks that I give 9 days credit to Mr. Zhang's sentence.
[90] Mr. Zhang has been on a recognizance of bail for about 7 months with the following conditions – reside with his surety, deposit his passport, not communicate with a witness and not to possess or use computers except in the direct company of his surety or unless completing school assignments.
[91] In my view, the release conditions cannot be described as stringent. They are not onerous as Mr. Zhang could continue living in the community, going to school and carrying on with his life as he normally would other than not being able to visit his family in China. I do not consider that his release conditions were sufficiently restrictive or stringent to justify a mitigating award of a custodial credit.
Reviewing the Sentence
[92] Considering the sentence in totality and in this unusual circumstance where the final sentence is 9 days over the sentence where an intermittent sentence is available I must ask myself whether 120 days rather than 111 days in custody would better reflect the seriousness of the offence combined with the moral culpability of the offender. I cannot honestly say that the 9 days significantly affects the denunciatory or deterrent quality of the sentence.
[93] I am mindful of Rosenberg J. A.'s decision in R. v. Priest, [1996] O.J. No. 3369 (Ont.C.A) where he said at paras. 22 – 24:
The rule laid down by this court is that ordinarily for youthful offenders, as for first offenders, the objectives of individual deterrence and rehabilitation are paramount. See R. v. Demeter (1976), 32 C.C.C. (2d) 379, 3 C.R. (3d) S-55 (Ont. C.A.). These objectives can be realized in the case of a youthful offender committing a nonviolent offence only if the trial judge gives proper consideration to alternatives to incarceration.
Even if a custodial sentence was appropriate in this case, it is a well-established principle of sentencing laid down by this court that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence. In R. v. Vandale (1974), 21 C.C.C. (2d) 250 (Ont. C.A.), the court had to consider the appropriate sentence for two youths who, like this appellant, were 19 years of age and had committed break and enter. Unlike this appellant, the accused in Vandale had committed several offences which resulted in substantial property loss. There, as here, the trial judge stressed general deterrence. This court reduced the sentences of five and six months for the two accused to sentences of 30 days' jail and two years' probation. Martin J.A. adopted the following statement of principle from R. v. Curran (1973), 57 Cr. App. R. 945, per MacKenna J. at pp. 947-48:
As a general rule it is undesirable that a first sentence of immediate imprisonment should be very long, disproportionate to the gravity of the offence, and imposed as this sentence was, for reasons of general deterrence, that is as a warning to others. The length of a first sentence is more reasonably determined by considerations of individual deterrence; and what sentence is needed to teach this particular offender a lesson which he has not learnt from the lighter sentences which he has previously received. (Emphasis added)
Martin J.A. also stated that this emphasis on individual deterrence rather than general deterrence was particularly applicable in the case of a youthful first offender.
[94] Given the principal of restraint, particularly towards youthful first offenders and in these unusual circumstances, I will lower the sentence to allow for an intermittent sentence. In contrast, and to make the intermittent sentence more punitive, Mr. Zhang will serve it two days at a time which will take him, with remission, 30 weeks. There will be no partial days. I will also add 50 hours of community service to his probation order which will be extended to cover the period during which he is serving his intermittent sentence.
Sentence
[95] Mr. Zhang will be sentenced to a term of 111 days less 14 days enhanced to 21 days credit for his pretrial custody, leaving 90 days left to serve. He will serve the sentence intermittently beginning with one day today and then reporting on Saturday, June 23, 2018 at 9 a.m. until Sunday, June 24, 2018 at 6 p.m. He will continue on the same schedule each weekend until the sentence is complete.
[96] Mr. Zhang will be on probation for a period of 18 months starting today. Mr. Zhang will:
(1) Keep the peace and be of good behaviour;
(2) Appear before the court when required to do so;
(3) Notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation;
(4) He must appear at the jail to serve his intermittent sentence on time, in a sober condition, with a blood alcohol concentration of zero, and not under the influence of or in possession of any controlled substance unless he is taking that controlled substance pursuant to a lawfully obtained prescription;
(5) Report to a probation officer by 4 p.m. on Tuesday, June 26, 2018;
(6) Not associate or communicate with anyone as set out in writing by the probation officer;
(7) Attend at and actively participate in any assessment, counselling or rehabilitative program as directed by the probation officer and complete them to the satisfaction of the probation officer with respect to sexual offender counseling and any other counseling as directed by the probation officer;
(8) Sign any releases as required or directed to allow his probation officer to monitor compliance with treatment or counselling; and
(9) Perform 50 hours of community service at a rate and schedule to be directed by the probation officer but must be completed within 12 months of the start date of this order.
Ancillary Orders
[97] Both Crown and the Applicant have agreed upon and I make the following ancillary orders:
(1) A DNA sample. Possession of child pornography is a primary designated offence pursuant to s. 487.04 (a)(i.8) of the Criminal Code.
(2) A SOIRA order for 10 years pursuant to s. 490.011(a)(viii), 490.012(1) and 490.013(2) of the Criminal Code.
(3) Pursuant to s 161 of the Criminal Code, the accused shall be prohibited for a period of 10 years from:
a. 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, unless the offender does so in the company of another adult who is 21 years of age or older;
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 any contact – including communicating by any means – with a person who is under the age of 16 years, unless the offender does so in the company of another adult who is 21 years of age or older; and
d. using the Internet or other digital network, to access, directly or indirectly:
i. any content that violates the law;
ii. any peer-to-peer file sharing networks including, but not limited to, BitTorrent, LimeWire, Gigatribe, Shareaza, Kazaa, iMesh, BearShare, Ares Galaxy, Gnutella, Frostwire, uTorrent, Morepheus, Freenet or Usenet.
(4) A forfeiture order for the Applicant's computer.
(5) A Victim Fine Surcharge of $400. I will give Mr. Zhang 30 days to pay.
Released: July 7, 2018
Signed: Justice W Harris Bentley