R. v. Clouthier; R. v. Mitchell

Court File No.: 16-0523 and 16-0513

Date: May 10, 2018

Ontario Court of Justice

Between:

Her Majesty the Queen

-and-

Nicholas Clouthier

-and-

Her Majesty the Queen

and

Daniel Mitchell

Before: Justice Michael G. March

Heard: January 26, February 28, March 15, April 25, 2018

Reasons for Judgment released: May 10, 2018

Counsel

Hali Adair – Counsel for the Crown

Jodie Primeau – Counsel for the Accused

Introduction

[1] On November 11, 2016, Nicholas Clouthier ("Clouthier") and Daniel Mitchell ("Mitchell") each entered guilty pleas before me to the offence of possession of child pornography contrary to s. 163.1(4)(b) of the Criminal Code of Canada ("the Code"). For various reasons, I adjourned the sentencing for Clouthier and Mitchell on a number of occasions. Eventually on August 29, 2017 (later amended on October 27, 2017), defence counsel for Clouthier and Mitchell brought an application under sections 12 and 7 of the Canadian Charter of Rights and Freedoms Act ("the Charter") alleging breaches of her clients' rights not to be subjected to cruel and unusual punishment, and not to be subjected to an 'arbitrary' deprivation of liberty. Defence counsel thus sought a declaration that s. 163.1(4)(b) of the Code is unconstitutional for infringing sections 12 and 7 of the Charter, which infringement, the defence argued, is not saved by section 1 of the Charter.

[2] Alternatively, the defence sought constitutional exemptions from the imposition of the mandatory minimum sentence ("MMS") of six months jail, where the Crown, as here, elected to proceed summarily upon the offence of possession of child pornography.

[3] The Crown requested by way of its written response filed on November 15, 2017:

a) a declaration that the MMS of six months jail is constitutional, and

b) a dismissal of the section 12 Charter Application.

The Crown's response was silent on the s. 7 Charter Application brought by the defence. In any event, this head of relief was not vigorously pursued by the defence.

[4] The defence called evidence on the hearing of the Charter Application largely in an attempt to demonstrate the impact a custodial sentence would have on Mitchell. Some twenty years or more prior to his arrest for the child pornography offence, Mitchell was involved in a motor vehicle accident. As a result, he was rendered paraplegic. He has no feeling below the chest. Clearly, the service of a period of incarceration by Mitchell will be a greater hardship to him that the more typical 'able bodied' offender, unless Mitchell's needs can be adequately accommodated.

Particulars of the Offences

Mitchell

[5] By way of forensic analysis conducted on computers owned by Mitchell, police found 193 unique digital images, and 164 unique digital movies, which met the definition of child pornography as set out in s. 163.1(1)(a) of the Code.

[6] Of the 193 images, roughly half focussed on the genital or anal regions of pre-pubescent children. The other half depicted the children engaged in sexual acts with other children, or with adults. The acts included fellatio, cunnilingus, digital penetration, and attempts at vaginal or anal intercourse. Detective Constable Redgate of the Child Exploitation Unit of the Ontario Provincial Police ("OPP") characterized the level of intrusiveness for the Mitchell collection as "average."

Clouthier

[7] In his library, Clouthier had stored on his electronic devices 138 images and 35 movies, which met the definition of child pornography set out in the Code. All of the still photos depicted pre-pubescent females posing with the main focus being their vaginal or anal region. Additionally, some of the images and movies showed the children engaging in explicit sexual acts with adult males.

Crown Position on Sentence

[8] The Crown submits that the appropriate range of sentence for Mitchell and Clouthier is between eight and twelve months. Further, the Crown proposes that both should be placed on probation for two years with appropriate conditions to monitor their conduct upon release from custody.

[9] The Crown asks also that:

a) both be subject to reporting requirements for ten years under the Sex Offender Information Registration Act,

b) both have their computers and devices forfeited to the Crown,

c) both have restrictions placed on their mobility and use of the internet, as well as volunteer work and formal employment, to prohibit contact with minors for 10 years under section 161 of the Code,

d) both should be required to provide samples of their DNA, and

e) both should pay victim surcharges.

Defence Position on Sentence

[10] Assuming a determination that the MMS under s. 163.1(4)(b) of the Code is of no force and effect, the defence seeks either a conditional or suspended sentence for Mitchell and Clouthier with presumably periods of probation to follow. The defence takes no issue with what the Crown seeks in the way of ancillary orders except for the prohibitions requested under section 161 of the Code.

Issues

[11] The Charter Application brought by the defence raises the following issues:

a) What is an appropriate sentence for Mitchell and Clouthier upon consideration of the purposes and principles of sentencing set out in sections 718 and 718.2 of the Code?

b) Does the Ontario Court of Justice have jurisdiction to determine the constitutionality of the impugned section of the Code?

c) Does the MMS set out in s. 163.1(4)(b) of the Code breach s. 12 of the Charter either:

i) in its application to Mitchell or Clouthier, or

ii) in its application to the reasonable hypotheticals proposed by the defence?

d) Does the MMS set out in s. 163.1(4)(b) of the Code breach s. 7 of the Charter?

e) Assuming the MMS set out in s. 163.1(4)(b) of the Code breaches either s. 12 or s. 7 of the Charter, or both, is the MMS saved by s. 1 of the Charter?

f) Are Mitchell and Clouthier entitled to constitutional exemptions from the MMS, if s. 163.1(4)(b) of the Code is held to be constitutionally valid?

Law

The Relevant Provisions of the Code and Charter

[12] The Code defines child pornography in s. 163.1(1) as follows:

In this section, child pornography means

• (a) a photograph, film, video or other visual representation, whether or not it was made by electronic or mechanical means,

  • (i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or
  • (ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years;

• (b) any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act;

• (c) any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act; or

• (d) any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act.

[13] Where the Crown elects to proceed summarily on a charge of possession of child pornography, s. 163.1(4)(b) of the Code prescribes a MMS. It reads:

(4.) Every person who possesses any child pornography is guilty of

• (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.

[14] Section 12 of the Charter provides:

• Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

[15] Section 7 of the Charter states:

• Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[16] Under s. 24(1) of the Charter, Mitchell and Clouthier seek redress for the alleged breach of their Charter rights. Section 24(1) reads:

• Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[17] Section 52(1) of the Charter deals with the effect of a law inconsistent with the Canadian constitution. It declares:

• The Constitution of Canada [including the Charter] is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force and effect.

[18] Finally, sections 718 to 718.2 of the Code articulate the purposes and principles of sentencing. Many of these axioms have long been recognized and applied under the common law. However, some provisions have recently been enacted to address Parliament's, and in turn, the public's concern for the manner in which punishment is meted out for certain crimes. For example, s.718.01 of the Code states:

• 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.

The Jurisdiction of the Ontario Court of Justice

[19] In R. v. Lloyd, 2016 SCC 13, McLachlin C.J. held at paragraphs 15 to 16 that provincial court judges (i.e. judges of the OCJ) are not able to make formal declarations that a law is of no force and effect under s.52(1) of the Constitution Act, 1982. Only superior court judges of inherent jurisdiction and courts with that statutory authority have that power.

[20] Nevertheless, provincial court judges have jurisdiction to determine the constitutionality of a law where it is properly before them. Quoting from R. v. Big M. Drug Mart Ltd., McLachlin C.J. explained:

. . .it has always been open to provincial courts to declare legislation invalid in criminal cases. No one may be convicted of an offence under an invalid statute.

[21] By analogy, McLachlin C.J. pointed out that since a person cannot be convicted of an offence under an invalid statute, it follows that a person cannot be sentenced under an invalid statute. McLachlin C.J. stated at paragraph 16:

• Provincial court judges must have the power to determine the constitutional validity of mandatory minimum provisions when the issue arises in a case they are hearing. This power flows directly from their statutory power to decide the cases before them. The rule of law demands no less.

She went on to hold 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 the sentence in the case at issue. Judicial economy dictates that judges should not surrender time and resources on matters they need not decide.

[22] It is clear that the Chief Justice of the Supreme Court of Canada is advocating in Lloyd a pragmatic approach to be taken by provincial court judges on challenges to impugned legislation. The power exists to determine the constitutional validity or invalidity of the statute in question where one of the parties before the judge may be affected by it. Greater care and reserve should be taken when the provision does not impact those parties. Where the case calls for a determination on the constitutionality of the impugned provision, it must and will be made.

The Two Step Analysis to be Undertaken Where an MMS is Challenged under s. 12 of the Charter

[23] At paragraph 23 of Lloyd, McLachlan C.J. explained, harkening back to R. v. Nur, the two step framework for assessing a s. 12 Charter challenge:

• 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 the 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.

[24] To conclude that a MMS constitutes "cruel and unusual punishment", a Court must be satisfied that a 'high bar' has been met. The punishment must be "more than merely excessive" to be considered "grossly disproportionate." It must be "so excessive as to outrage standards of decency." It must be "abhorrent or intolerable" to society.

[25] The bar, of course, is not unattainable. As pointed out by McLachlin C.J. in Lloyd at para. 24:

• The wider the range of conduct and circumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whom the sentence would be grossly disproportionate.

The Reasonable Hypothetical

[26] In Nur, McLachlan C.J. set out in detail at para. 47 and paras. 49 to 52 the underlying basis for consideration of the circumstances of others, and not just the claimant of the s. 12 Charter breach in the case before the Court. She wrote:

[47] We have seen that a s.12 challenge to a mandatory sentencing provision compares a fit and proportionate sentence for the offence with the sentence imposed by the mandatory minimum. At this point, a question arises — a question that is at the heart of this case. In analyzing the constitutionality of a mandatory minimum sentencing provision, who does the court take as the offender? Does the court consider only the offender who brings the s.12 challenge? Or should it also, if necessary, consider how the provision impacts on other persons who might reasonably be caught by it?

[49] For the reasons that follow, I conclude that excluding consideration of reasonably foreseeable applications of a mandatory minimum sentencing law would run counter to the settled authority of this Court and artificially constrain the inquiry into the law's constitutionality.

[50] To confine consideration to the offender's situation runs counter to the long and settled jurisprudence of this Court relating to Charter review generally, and to s. 12 review in particular.

[51] I turn first to the general jurisprudence of Charter review. This Court has consistently held that a challenge to a law under s. 52 of the Constitution Act, 1982 does not require that the impugned provision contravene the rights of the claimant: R. v. Big M Drug Mart Ltd., R. v. Morgentaler, R. v. Wholesale Travel Group Inc., R. v. Heywood, R. v. Mills, R. v. Ferguson, 2008 SCC 6, at paras. 58-66. As I wrote in Ferguson, "[a] claimant who otherwise has standing can generally seek a declaration of invalidity under s. 52 on the grounds that a law has unconstitutional effects either in his own case or on third parties": para. 59. This is because "[i]t is the nature of the law, not the status of the accused, that is in issue": Big M, at p. 314, per Dickson J. Section 52 of the Constitution Act, 1982 entrenches not only the supremacy of the Constitution but also commands that "any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect". If the only way to challenge an unconstitutional law were on the basis of the precise facts before the court, bad laws might remain on the books indefinitely. This violates the rule of law. No one should be subjected to an unconstitutional law: Big M, at p. 313. This reflects the principle that the Constitution belongs to all citizens, who share a right to the constitutional application of the laws of Canada.

[52] The argument that the focus should be mainly or exclusively on the offender before the court is also inconsistent with the jurisprudence of the Court on the review of mandatory minimum sentences under s. 12 of the Charter. The cases have sometimes referred to this review as proceeding on "reasonable hypotheticals". The Attorney General of Ontario concedes that the cases under s. 12 support looking beyond the circumstances of the offender before the court, but asks us to overrule them. She says the cases on what constitutes a "reasonable hypothetical" are "irreconcilable". A review of the cases does not, with respect, support this contention.

Charter Coherence and Deference to Parliament

[27] In Lloyd, McLachlin C.J.C. discussed the interplay of the rights enshrined by section 7 and section 12 of the Charter. Proportionality, as a sentencing principle, cannot be read into s. 7 of the Charter. The test for "cruel and unusual" is gross disproportionality – nothing less. As explained by McLachlin C.J.C. at paras. 40 to 43 of Lloyd:

[40] I am unable to accept the submission that the principle of proportionality in sentencing is a principle of fundamental justice under s. 7 of the Charter. My starting point is the observation that principles of fundamental justice in s. 7 must be defined in a way that promotes coherence within the Charter and conformity to the respective roles of Parliament and the courts.

[41] I turn first to coherence within the Charter. It is necessary to read s. 7 in a way that is consistent with s. 12. Mr. Lloyd's proposal would set a new constitutional standard for sentencing laws — a standard that is lower than the cruel and unusual punishment standard prescribed by s. 12. As McIntyre J. (dissenting on another issue) stated in Smith, at p. 1107:

While section 7 sets out broad and general rights which often extend over the same ground as other rights set out in the Charter, it cannot be read so broadly as to render other rights nugatory. If section 7 were found to impose greater restrictions on punishment than s. 12 — for example by prohibiting punishments which were merely excessive — it would entirely subsume s. 12 and render it otiose. For this reason, I cannot find that s. 7 raises any rights or issues not already considered under s. 12.

[42] This Court again held that ss. 7 and 12 could not impose a different standard with respect to the proportionality of punishment in R. v. Malmo-Levine, 2003 SCC 74, at para. 160, per Gonthier and Binnie JJ.:

Is there then a principle of fundamental justice embedded in s. 7 that would give rise to a constitutional remedy against a punishment that does not infringe s. 12? We do not think so. To find that gross and excessive disproportionality of punishment is required under s. 12, but a lesser degree of proportionality suffices under s. 7, would render incoherent the scheme of interconnected "legal rights" set out in ss. 7 to 14 of the Charter by attributing contradictory standards to ss. 12 and 7 in relation to the same subject matter. Such a result, in our view, would be unacceptable.

[43] Recognition of the principle of proportionality in sentencing as a principle of fundamental justice under s. 7 would also have implications for the respective roles of Parliament and the courts. The principle of proportionality is an admirable guide for judges seeking to impose fit sentences within the legal parameters established by Parliament. But it is not an overarching constitutional principle that allows judges to subvert the norms of punishment enacted by Parliament. Those norms are judged only by the standard of s. 12.

The Saving Provision – s. 1 of the Charter

[28] The Oakes test remains the standard by which impugned legislation which breaches a Charter right must be analyzed to determine whether it can be saved by s. 1 of the Charter. Section 1 reads:

• The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[29] The Crown bears the onus of justifying a reasonable limit. The Crown must show that the legislative objective must be of sufficient importance to override the Charter right. The aim of the legislation must demonstrate a "pressing and substantial" concern. Thereafter, the Crown must firstly establish that the legislated measures are rationally connected to achieving that aim. Secondly the measures must minimally impair the Charter right in question. Thirdly, there must be proportionality between the effect of the measures and the objective of sufficient importance. The more severe the effects of the measure, the more important the legislative objective must be.

Constitutional Exemptions

[30] Since R. v. Ferguson, 2008 SCC 6, the law is clear that constitutional exemptions for violations of s. 12 of the Charter are unavailable. They are inappropriate intrusions upon Parliament's role. They directly contradict Parliament's intent in passing MMS's. When legislating a MMS, Parliament must have intended to eradicate the exercise of judicial discretion. In the event a Court finds that a law violates s. 12 of the Charter, the remedy is to reach a determination that the law is of no force and effect – not to grant constitutional exemptions on a piecemeal basis.

Appropriate Sentences for Mitchell and Clouthier

Protection of the Public

[31] Undisputedly, adults owe children the highest duty of care. Children do not ask to enter this world. They come into it completely reliant on their parents, extended family and the overall goodness of humanity where parents and family are not there for them.

[32] Children are our most precious resource. They are immensely vulnerable throughout their early years of development and well into adolescence. They deserve protection from adults, not exploitation. In my view, they very much need protection from Mitchell and Clouthier and those like them.

Denunciation

[33] Those who abuse children or abet their abuse commit serious offences. The consumers of child pornography are criminals of the purest form. They create a market for abominations to occur. Every photo they look at is a crime scene. Every movie they watch pays homage to grotesque, lewd horror.

[34] Possessors of child pornography must be denounced sternly. The harm they do to children, although passive and indirect, is nevertheless serious and real. The crimes they commit are far from victimless ones.

Specific Deterrence

[35] The specific measures chosen to deter Mitchell and Clouthier from future offending of the nature in which they did is critically important. They must understand that, even absent a MMS, courts have traditionally incarcerated those whose crimes involved the abuse of children. Depriving Clouthier and Mitchell of their liberty is perhaps the sole means to bring home to them the high moral blameworthiness of their conduct.

General Deterrence

[36] The message Parliament clearly intended to deliver to the Mitchells and Clouthiers of the world is that you will most certainly go to jail for being a spectator to abuses perpetrated upon the innocent – assuming you are caught. It is, to my mind, a fitting sanction. The objectification and degradation of children inherent in the acquisition and possession of child pornography calls for the imposition of severe punishment. Where the offence is committed beyond a 'de minimis' scale, imprisonment alone will serve to deliver the right message.

Separating Offenders from Society

[37] Clouthier and Mitchell must have appreciated that their conduct was heinously wrong. If they did not, of course, their ignorance cannot be used as an excuse. Separating them from society succeeds, if nothing else, in allowing them time to reflect on the harm caused to the children they took such aberrant delight in viewing. It achieves as well, for albeit a limited time, an interval where the object of their curiosity cannot be accessed. Hopefully too, treatment can be offered to correct or control their desire to engage in criminal conduct.

Rehabilitation

[38] Depending on the length of the sentence imposed, counselling for sexual dysfunction can be provided to offenders in a meaningful way. Some of the reformatories in Ontario have units dedicated to treatment of sex offenders.

[39] Without question, a longer opportunity for Mitchell and Clouthier to access rehabilitative measures will be made available to them during their adherence to probation conditions. A term of probation may compel their attendance with a counsellor, a psychiatrist, and/or a psychologist. With commitment to learning about and adopting techniques for avoiding recidivism, Clouthier and Mitchell may well be rehabilitated.

Reparation for Harm

[40] There is little Mitchell and Clouthier can do directly to make reparations for the harm they have caused. The imposition of a victim surcharge may be the only indirect way to try to make amends in so far as monies may be apportioned to create a fund for the rescue and continuing care for children trapped in a life of being child porn models or actors.

Promotion of a Sense of Responsibility and Acknowledgement of Harm

[41] Mitchell and Clouthier likely did not appreciate the full scope of how their deviant sexual curiosity harmed children. My hope is that in reading these reasons, should they choose to, and in reflecting on them, or more importantly, in understanding how Justices of the Supreme Court of Canada have characterized the societal dangers posed by possession of child pornography, they will begin to appreciate the moral blameworthiness of their conduct. Better still, they will learn during the service of their sentences to refrain from engaging in such conduct in future.

Proportionality

[42] Every sentence must, of course, address the seriousness of the offence committed in relation to the moral culpability of the offender. Simply put, the punishment must fit the crime.

[43] Defence counsel argues that the files which constituted child pornography found on Mitchell's and Clouthier's devices were a mere fraction of the total, digitally stored content. This undisputed fact may be so, but it is completely irrelevant. Mitchell and Clouthier used the sexual exploitation of children for their personal gratification. The moral blameworthiness of such conduct is very much on the high end of criminality in general.

[44] At paragraphs 158 to 160, three members of the Supreme Court of Canada, writing separate but concurring reasons from the majority of a full nine member panel, commented as follows about the immeasurable harm child pornography causes:

158 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.

159 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.

160 In a similar manner, child pornography creates a type of attitudinal harm which is manifested in the reinforcement of deleterious tendencies within society. The attitudinal harm inherent in child pornography is not empirically measurable, nor susceptible to proof in the traditional manner but can be inferred from degrading or dehumanizing representations or treatment; see Thomson Newspapers, supra, at para. 92, and R. v. Mara. In the past this Court has not held Parliament to a strict standard of proof in showing a link between the expressive activity in question and the harm which it seeks to prevent, but has afforded Parliament a margin of appreciation to pursue legislative objectives based on less than conclusive social science evidence; see Irwin Toy, supra, at p. 990; Keegstra, supra, at p. 776; Butler, supra, at p. 504.

[45] Both Mitchell and Clouthier had 'hard core' libraries of child pornography where:

a) fellatio was performed on or by children,

b) penetration of children occurred,

c) children wore erotic clothing,

d) children engaged in sexual poses,

e) children were masturbated or engaged in masturbation with other children, and

f) children engaged in sexual activity with adults.

Clearly, a reformatory sentence must be imposed to reflect the gravity of the offence committed by Mitchell and Clouthier and their individual responsibility for the creation of a market for this subject matter.

Aggravating Factors

[46] Mitchell and Clouthier each committed an offence which:

a) contributes to the expansion of the market for child pornography,

b) encourages the exploitation of children - oftentimes for profit,

c) facilitates the seduction and grooming of children,

d) breaks down social inhibitions in those children susceptible to corrupting influences,

e) results in the establishment of digitized stores of illegal material, and

f) demonstrates their individual, settled intention to amass their own libraries of child pornography.

[47] Mitchell and Clouthier must understand, or must be made to understand, if at all possible, that as soon as they accessed the child pornography, they committed an offence that involved the sexual abuse of children. This type of offence is now statutorily recognized as a crime where a judge must give primary consideration to the objectives of denunciation and deterrence of such conduct.

Mitigating Factors

[48] I have identified the following mitigating factors:

a) both Mitchell and Clouthier are first time offenders,

b) they enjoy family and community support to assist with their rehabilitative efforts, and

c) they pleaded guilty and spared the Court the time and expense of a trial.

Parity

[49] Offenders and offences are like snowflakes and fingerprints. No two are alike. Yet, courts must strive to impose near equal sentences in cases which are closely similar on their facts. It is part of the law's quest for certainty. Indeed, the principle of parity is rooted in fairness.

[50] The defence has thus pointed me to two sentencing cases where child porn offenders were not sentenced to periods of incarceration. The first was R. v. Aylesworth, 2008 ONCJ 68. There the offender was an accomplished violinist with the National Ballet of Canada. On April 1, 2005, police executed a search warrant and seized over 1000 images depicting child pornography on his computer and on five compact discs. Between the date the images were discovered and the date of sentencing, Mr. Aylesworth received extensive therapy. Of course, in 2008 when the case was decided, there was no MMS for possession of child pornography. The Crown sought a conditional sentence. The defence submitted that a conditional discharge would be appropriate.

[51] The sentencing judge, Bovard J., did not describe the images themselves, unlike I did in this case, as 'hard core'. Rather he labelled them as being ". . .not in the category of the worst of child pornography". Many of the photos focussed on the anal and genital region of the boys they depicted. The pictures appeared to hint at anal intercourse or fellatio. Only one photo showed an adult with a child. The adult had his thumb in the boy's mouth while the boy held his own penis.

[52] A forensic psychiatrist, Dr. Gojer, who assessed Mr. Aylesworth concluded that:

"In the absence of an antisocial personality disorder, absence of any prior criminal history, high intelligence, excellent insight, remorse, high levels of motivation and absence of a full blown pedophilic problem, the risk that Mr. Aylesworth poses to the community is very low. Coupled with good insight and excellent progress in therapy, he is unlikely to reoffend."

[53] Ultimately, Justice Bovard imposed a suspended sentence with three years probation.

[54] Respectfully, this case is not helpful to me in deciding what is appropriate for Mitchell and Clouthier. It is now a decade old. Times change. Parliament has spoken. The MMS is six months jail because community values change, the public's intolerance for the crime grows, the evil associated with the wrongdoing becomes better understood, and/or law makers formulate a modified response to address the social ill which the offence engenders.

[55] Counsel for Mitchell and Clouthier also provided me with R. v. Ayoob, [2005] O.J. No. 4874. This case is older still than Aylesworth. Mr. Ayoob possessed approximately 200 images which met the definition of child pornography. A small portion of the images depicted children engaged in sexual intercourse or oral sex. Most of the photos consisted of naked children posing with the focus being the anal or vaginal area of the child. The youngest appeared to be eight to ten years of age.

[56] Again, this case offers me little to no aid. In Ayoob, Crown and Defence counsel appear to have jointly submitted that a suspended sentence and probation was the appropriate disposition with some urging from the presiding judge, Thomas J.

[57] Where I do take guidance from Thomas J. is when he points out at paragraph 16:

"It is no answer for a person in possession of child pornography to claim he has no responsibility for harm done to children because he did not actually touch a child or children. Child pornography is sexual abuse captured on film."

[58] Possession of child pornography perpetuates the victimization of children – plain and simple.

[59] In turn, Crown counsel has referred me to R. v. F. (D.G.) 2010 ONCA 27. This case is distinguishable in that it involved far more serious offences where repeated sexual assaults of the offender's four year old daughter occurred. R. v. F. (D.G.) does nevertheless illustrate the manner in which an interest in child pornography can skew the thinking of a certain segment of society and lead to the commission of more heinous crimes of child sexual abuse. The offender, Mr. F., was a participant in an internet chat room created to facilitate the exchange of child abuse images and films. The offender explained to the Court that he decided to sexually abuse his daughter after receiving active encouragement by his on-line peers.

[60] This is the ongoing, omnipresent risk posed to consumers of child pornography worldwide. Curiosity can grow with exposure to ever increasingly intrusive depictions of sexually exploited children. Over time, inhibitions can diminish. Quite conceivably, the passive consumer of child pornography moves on to become the active abuser.

[61] In R. v. Mahannah, [2013] O.J. No. 6330, Ratushny J. gave a succinct, serviceable review of several cases commenting on the harm caused by child pornography, even where the characters depicted are cartoons. Her review highlighted that:

a) child pornography is inherently degrading and dehumanizing material,

b) it involves the objectification of children,

c) it is on the rise,

d) it is abhorrent in that it victimizes the most vulnerable members of society,

e) it normalizes repugnant and morally reprehensible acts, and

f) it increases the risk of children being shown examples of so called 'normal' activities with a view to grooming them and encouraging them to engage in such acts, especially where anime is employed.

[62] In R. v. Ashkewe, [2010] O.J. No. 5372, Leroy J. convicted a 40 year old aboriginal offender for possession of child pornography. Mr. Ashkewe had 31 photos and 33 video clips depicting child pornography, which he stored on a rented computer and returned without deleting them. One of the clips included a tutorial on how to prepare young girls for vaginal and anal intercourse.

[63] Like Mr. Mitchell, Mr. Ashkewe was a first offender in poor health. He suffered from neurofibromatosis, a neurological disorder that causes tumors, bumps under the skin, skeletal problems and pressure on spinal nerves. Leroy J. accepted that Mr. Ashkewe was constantly in pain and heavily medicated. However, he held at paragraph 33 that:

"That factor is of some effect but is not significant. Our Court of Appeal has not endorsed medical considerations as a basis for significant reduction".

[64] In describing the nature of the offence of child pornography and the danger it poses, Leroy J. explained:

[20] The possession of child pornography is tantamount to violence against children. Victims are vulnerable and defenseless and this exploitation is at the very least notionally violent behaviour by all engaged in the practice.

[21] 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. R. v. D.G.F., 2010 ONCA 27

[22] Child pornography is repugnant. Other courts have articulated the evil it represents and I will not add to the commentary. The victimization never ends. It is bad enough that children are sexually abused in the most degrading fashion. Distribution over the internet seals lifelong damage. Those who possess this product are an essential cog. If no one watched, production and distribution would significantly decline. The audience needs to know that their responsibility for these offences against children is substantial and will bring significant sanction. And from Justice Molloy in Kruk "People who set about to access and collect pornography victimizing children must be made aware that the courts do not see this as minor, or victimless crime. It is a reprehensible crime and must be dealt with severely for the protection of society as a whole and of its most vulnerable members, our children."

I could not agree more with the sentiments expressed and observations made by Leroy J., above.

[65] His Honour went on to sentence Mr. Ashkewe to an eight month period of incarceration and three years of probation along with the usual ancillary orders (ie. DNA, SOIRA, and an Order pursuant to s. 161 of the Code).

The Deprivation of Liberty Only Where Less Restrictive Sanctions are Inappropriate in the Circumstances

[66] This principle of sentencing, of course, cannot be given any effect where a MMS is in place. To avoid being incarcerated, Mitchell and Clouthier must be successful on their Charter applications.

All Available Sanctions Other than Imprisonment Should be Considered and a Sentence which is Proportionate in all of the Circumstances Must be Imposed

[67] The MMS leaves no room for any alternative sanction for Mitchell and Clouthier. Unless I determine the MMS to be grossly disproportionate in its application to the circumstances of the offences committed by them and in their individual circumstances, or grossly disproportionate in its application based on the proposed, reasonable hypotheticals, my hands are tied. I must send them to jail.

The Appropriate Sentence for Mitchell

Mitchell's Personal Circumstances

[68] Mitchell is 55 years old. He has no criminal record. He is paraplegic. He was rendered so as a result of a motor vehicle accident in which he was involved some 20 years prior to his arrest on May 31, 2016.

[69] As a result of the injuries he suffered, Mitchell has no feeling below his chest. He can wiggle one finger, but essentially, has no use of his hands. He has no feeling in his legs, core or genital region.

[70] Mitchell lives at home with his adult son. He has managed to learn how to care for himself independent of others for the most part. However, he must adhere to a strict routine.

[71] He must drain his bladder at least four times a day. He needs a bed, a bed mat, a sanitary station to wash his hands and a place to empty his bladder bag contents. Within 15 minutes approximately of feeling the urge, he must void his bladder. This requires privacy understandably. If he does not do so in time, he can suffer migraines and a possible loss of consciousness.

[72] Disruptions to Mitchell's eating, drinking and sleeping patterns can bring on an emergency draining situation for his bladder. Otherwise, he has learned to predict with a fair degree of accuracy his time to go.

[73] In terms of his bowel movements, Mitchell must digitally relieve himself. Again, he must follow a rather strict regime of regularity. Changes in his diet or stress can trigger a loosening of his stool resulting in accidents. Mitchell is not always capable of cleaning up after himself in the event of such an accident.

[74] Mitchell must set specific times for rest, sleep and other intervals away from his wheelchair. When he does not do so, he is prone to development of chair sores. These sores can have other health and potentially lethal consequences if ignored.

[75] Mitchell's wheelchair, as well as his equipment for bladder and bowel relief, may pose security concerns for correctional authorities. Mitchell is far from the average inmate in terms of his physical capabilities, or lack thereof.

[76] Mitchell has lived at home in Pembroke since the detection of his crime. As a condition of bail, he has abided by a term of 'house arrest' with exceptions made for medical, court and legal appointments. Additionally, he was required not to possess any computer, cell phone or other device with access to the internet.

Circumstances of Mitchell's Offence

[77] Based on the results of software searches used by the OPP between January 27, 2016 and March 21, 2016 to detect downloading of child pornography, the I.P. address belonging to Mitchell was identified as suspicious. Ultimately, police formed reasonable grounds to believe Mitchell had child pornography in his possession.

[78] On April 21, 2016, Detective Cst. Power obtained a search warrant permitting him to enter Mitchell's residence to look for child pornography. Detective Cst. Power seized later that same day two computer devices, a cellular phone, and a SD card from Mitchell. At the time of the search, Mitchell admitted to having child pornography.

[79] On September 30, 2016, forensic analysis of Mitchell's devices revealed that he had stored digitally:

a) 193 unique, accessible images which met the definition of child pornography under the Code, and

b) 164 unique, accessible movies of the same nature.

[80] The images and movies depicted predominantly pre-pubescent females ranging in ages from four to twelve. Of the 193 images, roughly 50% focussed on the genital or anal regions of prepubescent males and females. The balance depicted the children engaged in sexual acts such as fellatio, cunnilingus, digital penetration and attempts at vaginal or anal penetration.

Applying the Purposes and Principles of Sentencing to Mitchell's Circumstances and the Circumstances of His Offence

[81] Upon careful consideration of the purposes and principles of sentencing, and taking into account Mitchell's personal circumstances and the circumstances of his offence, I conclude that a sentence of twelve months in jail is appropriate.

[82] Mitchell's collection of child pornography was five times or more larger than the amount Justice Leroy was dealing with in Ashkewe. However, Mitchell's health challenges are likely much greater than that offender. One day spent in jail by Mitchell is physically harder on him than it would be for the average offender. I shall offer also some reduction in sentence for the amount of time Mitchell has spent under restrictive bail conditions. Although Mitchell is house and wheelchair bound as a result of his disabilities, the prohibition on his access to electronic devices connected to the internet can certainly be regarded as a form of punishment imposed before sentence for a man in his condition. His outlet to the outside world was cut off for a significant period, as it will be in future. Indeed, it must.

[83] Accordingly, I will impose a ten month period of incarceration upon Mitchell to be followed by two years probation. The conditions of probation shall be that he must:

a) report to a probation officer within 48 hours of his release from custody and thereafter as required;

b) reside at a place approved by his probation officer and not change his address without obtaining the consent of the probation officer in advance;

c) not be in the company of or communicate directly or indirectly, by any physical, electronic or other means, with children under the age of 18 years unless in the presence of another person or persons approved of in writing in advance by the probation officer;

d) 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:

• sexual behaviours counselling, and
• sign any releases or information forms as will enable the probation officer to monitor his attendance and completion of all assessments, counselling or rehabilitative programs as directed; and

e) not possess or use any computer or any other device that has internet access.

DNA

[84] Mitchell shall provide a sample of his DNA to the authorities forthwith.

Forfeiture Order

[85] Mitchell shall forfeit to the Crown and the Crown shall be empowered to destroy all images and movies which meet the definition of child pornography under s.163.1 of the Code. If the only way to achieve this is to destroy the devices seized from Mitchell by police, so be it.

SOIRA

[86] Under s. 490.013(2)(a) of the Code, Mitchell shall be required to comply with the provisions of the Sex Offender Information Registration Act for a period of ten years.

Section 161 Order

[87] In respect of the s. 161 Order sought by the Crown, defence counsel has referred me to R. v. K.R.J., 2016 SCC 31. In that case, Karakatsanis J. discussed at paragraph 48 when a s. 161 Order should be imposed:

". . .s. 161 orders can be imposed only when there is an evidentiary basis upon which to conclude that the particular offender poses a risk to children and the judge is satisfied that the specific terms of the order are a reasonable attempt to minimize the risk: see A. (R.K.) at para. 32; see also R. v. R.B.B., 2013 BCCA 224, 338 B.C.A.C. 106, at paras. 32-24. These orders are not available as a matter of course. In addition, the content of the order must carefully respond to an offender's specific circumstances."

[88] I do not take Karakatsanis J. to mean from reading the above passage that the risk she speaks of is limited to evidence given by a forensic psychiatrist or psychologist, who has conducted a sexual behaviours assessment of the offender. A prospective approach must be taken upon assessing all of the evidence touching on the offender's known sexual propensities. Only Clouthier underwent an actual sexual behaviors assessment. From the perspective of the defence, there was little point in seeking one for Mitchell since he is paraplegic and has no feeling below the chest.

[89] I am not persuaded by defence counsel's argument that I should decline to make a s.161 Order based on Dr. Federoff's assertion that:

". . .the sexual re-offence rate of men with child pornography offences is so low that it is not possible to reliably predict the few who will re-offend. Child pornography offenders with no other criminal offences are at low risk to sexually re-offend."

[90] Dr. Federoff does not explain:

a) how the data is collected on re-offence rates, or

b) the basis for his opinion that child pornography offenders with no other criminal convictions are at a low rate to re-offend.

In fairness he was not specifically asked either to set out the manner in which the data is collected for calculating re-offence rates nor future risk of recidivism.

[91] What I know is that Mitchell clearly had an interest in child pornography. He set about a course of amassing a substantial collection for himself. Is there a risk he may in future be tempted to restore his library upon release from custody? Clearly, there is. The internet is pervasive. The means to access it are ever increasing. As long as there are consumers of child pornography, and the potential for profit to be made in creating and selling it, there is a very real risk to children being victimized in future. It is my duty to make reasonable attempts to minimize that risk in deciding upon the sentence to be imposed for Mitchell and Clouthier.

[92] Accordingly, Mitchell shall be prohibited for a period of 10 years from:

a) attending a public park or public swimming area where person 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.

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, and

d) using the Internet or other digital network.

Victim Surcharge

[93] Mitchell shall pay a victim surcharge in the sum of $100.00. It is the minimum, which I am imposing in the absence of any evidence I have to allow me to know how much he actually spent on acquiring illegal images or movies.

[94] Let me be clear. What happened to Mitchell and the physical incapacitation he suffered as a result of the motor vehicle accident was a terrible thing. However, it in no way excuses his perverted interest in little children.

[95] In sum, even if I completely accept that Mitchell can only wiggle a finger, I wish to do my utmost, within legal means, to ensure such a motion does not ever lead, directly or indirectly, to the harm of children in future. That finger certainly enabled him to develop quite a cache of smut. That pastime, if that is what Mitchell considered it to be, must now come to a close.

The Appropriate Sentence for Clouthier

Clouthier's Personal Circumstances

[96] Clouthier is 31 years old. He lives with his common-law partner in Petawawa. He has no criminal record. He works as an apprentice to a butcher. He is considered by his family members as a person of kind and good character.

[97] Clouthier was examined and assessed by Dr. Fedoroff of the Royal Ottawa Hospital. Thereafter, he has sought counselling from a local social worker, Ms. Lavery.

[98] Since his arrest on April 26, 2016, Clouthier has abided by all conditions of bail including a term of house arrest with exceptions (e.g. employment, medical, counselling and legal appointments, and/or in the presence of his common-law spouse).

[99] Clouthier was examined by a forensic psychiatrist, Dr. Paul Federoff, some time prior to October 23, 2017. During Dr. Federoff's interview of Clouthier, he stated, "I believe I have anxiety and depression. I do not feel I have sexual problems." Clearly, Clouthier lacks any genuine insight into his condition.

[100] Clouthier revoked his consent to be phallometrically assessed for his response to opposite and same sex pedophilic materials. He showed no interest in pre-sentence treatment. In spite of Clouthier's denials, Dr. Federoff diagnosed Clouthier as pedophilic.

Circumstances of Clouthier's Offence

[101] Based on the results of software searches used by the OPP between February 14, 2016 and March 6, 2016 to detect downloading of child pornography, the I.P. address belonging to Clouthier was identified as suspicious. Ultimately, police formed reasonable grounds to believe Clouthier had child pornography in his possession.

[102] On April 20, 2016, police obtained a search warrant permitting entry to Clouthier's residence to look for child pornography. Police seized on April 26, 2016 two computer devices, a cellular phone, a SD card, an external hard drive and several other storage devices.

[103] On September 29, 2016, forensic analysis of Clouthier's devices revealed that he had stored digitally:

a) 138 accessible images which met the definition of child pornography under the Code, and

b) 35 accessible movies of the same nature.

[104] The images and movies depicted young prepubescent females posing with the main focus being their vaginal or anal regions. Their apparent ages ranged from two to twelve years. Some of the images and movies showed the children engaged in explicit sexual acts with adult males.

Applying the Purposes and Principles of Sentencing to Clouthier's Circumstances and the Circumstances of His Offence

[105] Taking the principles of sentencing, and all of the other relevant circumstances into account, I conclude that a sentence of ten months in jail is appropriate for Clouthier. The number of images he had was roughly four times the amount Justice Leroy was dealing with in Ashkewe. The collection of movies was approximately the same.

[106] As far as I am aware, Clouthier does not have any physical disabilities like Mitchell. He provides no explanation for his deviant interest in child pornography. In my view, there can be little, if anything, he could have offered to excuse such conduct in any event.

[107] I will offer some credit for the lengthy period of time Clouthier was subject to restrictive bail conditions.

[108] Consequently, I shall impose a sentence of nine months incarceration to be followed by two years of probation. The conditions of probation shall be that he must:

a) Report to a probation officer within 48 hours of his release from custody and thereafter as required;

b) reside at a place approved by his probation officer and not change his address without obtaining the consent of the probation officer in advance;

c) not be in the company of or communicate directly or indirectly, by any physical, electronic or other means, with children under the age of 18 years unless in the presence of another person or persons approved of in writing in advance by the probation officer;

d) 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:

• sexual behaviours counselling, and
• sign any releases or information forms as will enable the probation officer to monitor his attendance and completion of all assessments, counselling or rehabilitative programs as directed; and

e) not possess or use any computer or any other device that has internet access.

DNA

[109] Clouthier shall provide a sample of his DNA to the authorities forthwith.

Forfeiture Order

[110] Clouthier shall forfeit to the Crown and the Crown shall be empowered to destroy all images and movies which meet the definition of child pornography under s.163.1 of the Code. If the only way to achieve this is to destroy the devices seized from Clouthier, so be it.

SOIRA

[111] Under s. 490.013(2)(1) of the Code, Clouthier shall be required to comply with the provisions of the Sex Offender Information Registration Act for a period of ten years.

Section 161 Order

[112] Defence counsel argues that the only evidence about the likelihood of re-offence for Clouthier comes from Dr. Federoff's Report of October 23, 2012. I disagree. The nature of the offence, the ease with which Clouthier and other offenders can access child pornography on the internet and the lack of standardized actuarial measures appropriate for men who have committed child pornography offences leads me to conclude that there are few concrete means to calculate the risk of re-offence for those convicted of possession of child pornography.

[113] Indeed, the more specific finding made by Dr. Federoff was that due to the copious amount of missing information for Clouthier, "it was not possible to calculate his probability of re-offending."

[114] Accordingly, Clouthier shall be prohibited for a period for 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;

b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involved 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; and

d) using the Internet or other digital network.

Victim Surcharge

[115] Clouthier shall pay a victim surcharge in the sum of $100.00. It is the minimum, which I am imposing in the absence of any evidence I have to allow me to know how much he actually spent on acquiring illegal images or movies.

The OCJ's Jurisdiction to Determine the Constitutionality of Impugned Provisions of the Code

[116] Since Mitchell and Clouthier are properly before me to be sentenced, I have jurisdiction to determine the constitutionality of the MMS to which they are subject. No one ought to be sentenced under a section of the Code, which violates the Charter. The power to determine the issue is part of my overall function in deciding the cases before me.

Does the MMS set out in s. 163.1(4) of the Code Breach s. 12 of the Charter in its Application to Mitchell and Clouthier?

Mitchell

[117] As mentioned earlier, defence counsel called evidence to attempt to demonstrate why the imposition of the MMS for a person such as Mitchell would be grossly disproportionate considering his personal circumstances and the circumstances of the offence which he committed. As with most offenders in the East Region, Mitchell will be taken to the Ottawa Carleton Detention Centre ("OCDC") upon receiving a period of incarceration as part of his overall sentence. Depending on the length of the imprisonment, an offender will serve out his or her sentence at OCDC or be transferred elsewhere. Typically, those who receive sentences greater than 90 days will be transferred away from OCDC.

Sgt. Peter Plouffe

[118] To demonstrate the impact a sentence of six months or greater would have on Mitchell, his counsel called Sgt. Plouffe, a security manager at OCDC. Sgt. Plouffe explained that once sentenced, most offenders are unlikely to stay at OCDC. They often end up at the Central East Correctional Centre ("CECC") in Lindsay. However, Sgt. Plouffe pointed out that where an offender goes is determined by programming and medical issues. An offender may be sent to the St. Lawrence Treatment Centre in Brockville.

[119] Sgt. Plouffe was clear. The needs of the offender normally dictate where the offender ends up serving his or her sentence. From his or her arrival at OCDC, the offender may be sent to the Health Care Unit if that appears to be the most appropriate place for him or her to be housed. There are, of course, medical cells at OCDC within that unit. To Sgt. Plouffe's knowledge, there are four such medical cells at OCDC. Three have standard hospital size beds with a self-contained sink and toilet within them. These medical cells have a large steel door at their entrance with a 2' by 3' window.

[120] Mitchell's counsel attempted to suggest that the Segregation Policy, as set out in the Institutional Services Policy and Procedures Manual – the policy which governs all correctional facilities in Ontario, would have some application to Mitchell. Sgt. Plouffe doubted that it would. He explained that the policy guides who is sent there, why, and the rights of the offender while there, but the segregation policy simply does not apply, unless an offender is sent to the segregation unit. Nor does the segregation policy apply to those in protective custody ("P.C."). Offenders go into P.C. at their specific request.

[121] Again, Sgt. Plouffe was very direct in explaining that Mitchell could request P.C., but as an inmate assigned to the health care unit, he is more likely than not to be housed alone in one of the medical cells.

[122] Should a PC unit be utilized for whatever reason for Mitchell, there are seven such cells. Six of those are wheelchair accessible. There are no wheelchair accessible cells in the general population area of OCDC.

[123] Sgt. Plouffe had some awareness of inmates being placed in segregation cells under medical observation. While there, they are seen by a doctor or nurse daily. The medical staff decides on a daily basis whether the offender remains in segregation. Management staff of the institution do their own review of the status of the segregated inmate every five days.

[124] For the general population, cell doors are opened every morning at approximately 9:00 or 9:30 a.m. Those inmates are out in common areas until 11:30 a.m. This is not the routine for those in medical cells. Medical unit inmates have 'yard' privileges for only twenty minutes each day. Other occasions when they would be out of their cell are for showers, family visits, professional visits, etc. OCDC also runs a 'time out of cell' program. The goal is to allow offenders out of their cells for one to three hours at least once per day on a Monday to Friday schedule. Mitchell would be eligible for enrolment in this program as well.

[125] Mitchell's time spent out of his cell, if assigned to the health care unit, would be in the common area. He likely would be by himself, but visited by recreation staff.

[126] Lockdowns affect inmates' ability to be away from their cells. Lockdowns occur for numerous reasons. There could be a security threat. Correctional staff may have to conduct searches for drugs or weapons. OCDC could simply be short-staffed for the day as well.

[127] When lockdowns occur, 'yard' may be cancelled. Programs may be suspended or cancelled for the duration of the lockdown. Every inmate is affected by it.

[128] On occasion, lockdowns can last for hours or days depending on the situation. Sgt. Plouffe was not aware of an occasion where the lockdown went on for a full week.

[129] The food offered to all inmates at OCDC comes from the west side of Toronto. Generally, it is frozen for preservation purposes, and later warmed to prepare it for consumption by the inmates. Sgt. Plouffe was not aware of any place within OCDC where food could be prepared on site.

Cathy Goard

[130] Ms. Goard is the Health Care Manager at CECC in Lindsay. She is a registered nurse. She is responsible for the recruitment and hiring of medical staff at the Health Care Unit of the institution.

[131] Ms. Goard interacts with her "clients" approximately five hours a week, on average, or more, depending on their individual needs. She considers herself to be very "hands on" and active in her engagement with clients.

[132] If Ms. Goard feels the needs of a client are better served at a facility such as the St. Lawrence Valley Treatment Centre in Brockville, she will make a referral for the client to be transferred there. CECC works as well in conjunction with two doctors at the Royal Ottawa Hospital, who offer advice, care and treatment recommendations for primarily the mental health needs of her clients.

[133] Ms. Goard explained that CECC does not have an infirmary type setting where her clients/inmates receive care. Rather, they have specialized cells. There are two such cells, which are wheelchair accessible. They have their own door and bathroom and another door within them, which leads to a shower and tub area.

[134] From within the cell, a client can watch T.V. in the common area of the health care unit. Dedicated spaces for the doctors, dentists, nurses and a laboratory are all nearby.

[135] Ms. Goard explained that the cells in the medical unit are larger than those in the general population area of CECC. The beds are removable. She believes that the medical cells have windows, but she was not completely sure at the time she testified. Careful in giving her evidence, she would only go so far as to say she believes there are windows in them.

[136] Ms. Goard reiterated that the medical cells have a bath and a toilet. The cell doors are opened as required to all the clients to have "yard" or to see a doctor. However, if not out for an attendance with the doctor or yard, typically the client is in his or her cell.

[137] The focus for the staff of the Health Care Unit is to develop a "care plan" for the client. It is reduced to writing. Its aim is to provide the same level of care a person in the community would expect to receive. Interdisciplinary teams comprised of all involved CECC staff meet to provide their perspectives on the appropriate care to be offered to the client. Input from the chaplaincy, the library staff and the volunteers at CECC work together in a holistic approach toward development of the care plan taking into account the mind, body and soul of the client.

[138] If Mitchell did not want to be housed with CECC's general population, Ms. Goard would look at putting him in the Health Care Unit. Alternatively, she would try to devise a care plan for Mitchell to serve his sentence in both areas (i.e. amongst the general population for part of the week and in the medical unit for the balance). She queried whether a catheter might be of assistance to him if he wanted to try staying amongst the general population.

[139] Ms. Goard indicated that it is up to Mitchell regarding the care he wishes to receive. He can refuse any proposed treatment. If he did opt for the general population area, he could be accommodated in a wheelchair cell, which is larger than the regular ones. She could not remember if the wheelchair accessible cells were equipped with bathroom facilities, or simply a table. She described the beds in the general population area as being of a steel type – the size of a hospital bed. A special mattress could be obtained. The cells do have windows on the doors, roughly 2' by 2' in dimensions. Mitchell could come out for treatment, or for emptying his bowels or bladder. The frequency required for doing so could be written into his care plan. Protocols for bathroom emergencies could be developed. The schedule for relieving himself could all be set out in a calendar as part of his care plan as well.

[140] As long as there is no crisis at CECC in the sense of a dangerous situation occurring, Ms. Goard did not foresee a difficulty in attending to Mitchell's needs. She did not believe that lockdowns would interfere with Mitchell's care. They do not affect the medical unit.

[141] Ms. Goard conceded that Mitchell would not be able to cover the cell door window to afford himself privacy. However, a person would have to stand up close to the window and peer inside to know what was occurring.

[142] Ms. Goard explained that a doctor regularly visits CECC on Mondays and Wednesdays. Four other doctors provide services through Ontario Telemedicine. A nurse practitioner is available daily from 8:00 a.m. to 4:00 p.m. The local hospital is about a 5 to 8 minute drive away from CECC. Ambulances can be called. Paramedics can normally clear security within 5 minutes.

[143] In terms of continuing care, Mitchell would have to consent to having his medical records sent from his family doctor to his "in house" doctor. Ms. Goard was certain Mitchell would be assigned his own institutional doctor. The doctor's name and recommendations would also become part of Mitchell's care plan.

[144] Ms. Goard believed that only 20 minutes would be offered to Mitchell for 'yard' if he were housed in the medical unit.

[145] As far as Ms. Goard was aware, any prescription drugs Mitchell required, provided they are on the approved list, would be available for acquisition by CECC to be dispensed to him as a client. If the required drugs were not on the list, and Mitchell's institutional doctor approved them, they would be ordered. Nurses are responsible for dispensing the medications. If the institutional doctor and the client disagreed over a requested form of treatment, CECC has a policy in place for obtaining a second opinion. The doctor is obliged to follow through with the process of acquiring the second opinion.

[146] In reflecting back over the time she has been at CECC, Ms. Goard could not recall an occasion where the institutional doctor did not follow the recommendations of the family doctor as part of the client's care plan.

[147] After the first intake session when the client sees the doctor, a spreadsheet is generated for that individual. Administrative staff may access that spreadsheet, and make it available to the doctor who sees the client at the next regular or special visit. Ms. Goard indicated that most clients are able to see a doctor within ten minutes after the request is made. A nurse may conduct triage of the situation immediately, but will involve the doctor as required. If no doctor is available, the client will be sent to the local hospital.

[148] Correctional officers can check cells to ensure safety. Clients/inmates may be denied their possessions in certain circumstances, but only if the object in the client's hands poses a threat. Medical decisions however cannot be overruled by correctional staff. If a client's life or health is in jeopardy, he or she will be sent to the hospital.

[149] Ms. Goard commented that there is a reduced expectation of privacy amongst all strata of inmates at CECC. However, she offered that if you walked up to a general population cell and looked through the cell door window, you could still not see the toilet.

[150] Having read Mitchell's affidavit sworn in support of his Charter Application, Ms. Goard was of the view that the medical staff at CECC could nevertheless provide full care to him. She commented that in the past, she has dealt with people with more complex needs than Mitchell.

Sgt. Rick Camman

[151] Sgt. Camman has been the security manager at CECC for the last 12 or 13 years. It is his primary responsibility to ensure the safety and security of the staff, the inmates and the public.

[152] He testified that CECC has the capacity for 1200 inmates. Among the general population cells, there are six pods with six wings to each pod. In each wing, there are 16 cells capable of housing two, and possible three inmates. The cells in the segregation unit are the same as those assigned to the general population. Infirmary/medical unit cells are not segregation cells.

[153] Mitchell's counsel referred Sgt. Camman to s. 4.14 of the Institutional Services Policy and Procedures Manual. It provides:

An inmate who requires special care services, including physical, mental and social care (i.e. those whose behaviour or potential behaviour could be harmful to the inmate or others which may require minimal contact with other inmates).

Examples of special management inmates are:

4.14.4 a disability or condition(s), which requires an assistive device (e.g., prosthetic, orthotic or orthopedic, devices for inmates who are blind or partially sighted or hard of hearing and/or deaf, etc.) which cannot be accommodated in general population short of undue hardship (see Human Rights subsections 3.2.1 and 3.2.2).

[154] However, Sgt. Camman explained that Mitchell would not fit under that provision. Under s. 3.1.1 of the Manual, Mitchell's needs as an inmate would be taken into consideration. It states:

Decisions regarding housing special management inmates are based on an individualized assessment of an inmate's needs and circumstances based on reliable information and verified criteria, not assumptions or impressionistic views about the level of risk their being housed with the general population may pose. The decisions will also be consistent with the principle of managing inmates in the least intrusive or with the lowest level of security possible, which fulfils Correctional Services' legislated mandate, provides for the needs of inmates who require specialized care, and ensures both the safety of all persons and the security of correctional institutions.

Safety and security as well as inmate requests are taken into account in terms of where specifically an inmate will receive his or her cell assignment. Where those two factors conflict, safety and security will win out.

[155] Sgt. Camman clarified that there are "special needs" units at CECC. Staff are expected to know the "care plans" of those assigned to the medical unit. Each inmate is assessed individually. Multidisciplinary teams decide where the inmate will be housed. Sgt. Camman only becomes involved where a red flag is raised and a potential safety or security threat is posed. Otherwise, psychologists, social workers, mental health nurses, nurses, regular staff, and managers of the individual units decide where the inmate will be kept.

[156] Sgt. Camman was asked about the routine of the general population inmate. At 7:00 a.m. the cell doors are unlocked. The inmates go to a day room and breakfast is served. Up to 32 are held there. They remain in that room until 11:00 a.m. They are then returned to their cells and served lunch. At 1:00 p.m., they are permitted to return to the dayroom. Dinner is served at 4:30 p.m. and inmates can remain there until 7:00 p.m.

[157] "Yard" of a duration of 20 minutes takes place during day room activities. Showers are offered as needed. A chart outlining the routine of a general population inmate was marked as Exhibit 3 on the hearing of Mitchell's Charter Application.

[158] For segregation inmates, they are fed breakfast at 7:00 a.m., lunch at 11:00 a.m. and dinner at 4:30 p.m. in their cells. There is no privilege offered to attend a day room. For the most part, such inmates are confined to their cells but for yard of a duration of 20 minutes. A chart outlining the routine of a segregated inmate was marked as Exhibit 4 on the hearing of Mitchell's Charter Application.

[159] Sgt. Camman pointed out that for those inmates assigned to the Special Management Care Units, there are no set hours or durations for the inmates to partake in yard, or to spend time in the day room. Each inmate is managed on a 'case by case' basis.

[160] Mitchell's counsel showed Sgt. Camman sketches of typical, segregation and medical isolation units at CECC. In the typical cells, Sgt. Camman testified that one could see the beds inside from the cell door. For the segregation cells, he was not sure if one could see the beds. He did not know if the beds were visible from the door window of the medical isolation units. Nor was he assisted in that regard when shown a sketch of the general layout of the Health Care Unit made by Ms. Goard (Exhibit 2).

[161] Sgt. Camman did confirm that windows on cell doors were not allowed to be covered. The rationale for the rule not permitting windows to be covered is to enable CECC staff to do required random and routine checks on the inmates.

[162] Sgt. Camman conceded that lock downs at CECC can disrupt the inmates' routines and movements. Lock downs are triggered by security or safety threats and/or lack of staff. Programming can be cancelled. So too can access to "yard", day rooms and the inmates' lawyers.

The Evidence from Correctional Staff

[163] Upon assessment of the evidence of Sgt. Plouffe, Ms. Goard and Sgt. Camman, I can confidently conclude that neither the MMS nor the appropriate sentence I have arrived at for Mitchell will breach his s.12 Charter rights. I am not satisfied on a balance of probabilities by the evidence adduced, nor the arguments made valiantly by his defence counsel, that Mitchell's right not be subjected to cruel and unusual punishment has been infringed.

[164] Firstly, I must indicate that I was struck by Ms. Goard's compassion. She described the inmates entrusted to her care and watch as "clients". Secondly, Ms. Goard is clearly committed to the service of her clients' needs. I have little doubt she will see to it that Mitchell is treated with dignity and respect. Thirdly, Ms. Goard is foremost a nurse. I did not for a second suspect, as she gave her evidence, that she was toeing a party line for the Ministry of Community Safety and Correctional Services. If she believed she could not attend to Mitchell's needs, she would have told me so. Finally, I accept fully what Ms. Goard said under oath that she has adequately cared for those more physically incapacitated than Mitchell in the past.

[165] Accordingly, I cannot find that the MMS in its application to Mitchell requiring me to impose a six month minimum period of imprisonment infringes his s. 12 Charter right.

[166] If I reach this conclusion for Mitchell, I must surely reach the same one for the more able bodied Clouthier. For good reason, Clouthier's counsel has not argued that his personal circumstances take him outside the usual ambit of the hardships to be endured by the average sex offender sentenced to a reformatory period of incarceration in Ontario.

[167] In recent years, the provincial correctional system has come under fire for overcrowding, staff shortages, mistreatment of certain inmates and lockdowns. Yet the jails of Ontario are still a far cry from a Turkish prison or the Gulag. Inmates of this province do not expect accommodation akin to a room with a view at the Savoy or the Waldorf. They certainly are entitled to reasonable, humane treatment while serving custodial sentences. Mitchell and Clouthier ought to expect just that. On the evidence proffered by the defence, I am confident that that is what they will indeed receive.

[168] I, and I venture the vast majority of judges across Canada, never take lightly the deprivation of liberty for anyone. Incarceration is and must always be the penal sanction of last resort. When it is imposed, it must be deserved. For Mitchell and Clouthier, it is most definitely warranted.

The Reasonable Hypotheticals Imagined by the Defence

[169] The first scenario proposed by the defence posits an 18 year old female student with no criminal record who, while surfing on her laptop, finds a zip file of cartoon pornography. The depicted cartoon characters appear to be teenagers engaged in sexual activity. She downloads the file to her computer and watches one or two of the videos. She deletes them after viewing. Police trace the downloads. Her computer is seized and ultimately searched. Presumably, the viewed files are located. She is charged, and subsequently convicted of possession of child pornography. She is then sentenced to the MMS of six months jail.

[170] Assessing this reasonable hypothetical, I am not at all convinced that the 18 year old female possessed anything at law. She had to open the zip file to know what it contained. Pornography in a cartoon form is not in and of itself is illegal. Once she viewed one, or maybe even two of the unzipped videos, she deleted them – presumably indicating an awareness on her part that they were proscribed materials, and she demonstrated an intention to permanently place them beyond anyone's control. The defence of innocent possession would certainly be open to her. Indeed, it would likely be successful, assuming the Crown would ever consider it in the public interest to prosecute her on these facts.

[171] The second reasonable hypothetical raised by the defence supposes a 20 year old aboriginal male who searched the internet for gay pornography. He stumbles upon a story describing a male teacher having sex with an underage high school student. He downloads the story to his computer along with several videos, stories and images that otherwise depict consenting adults.

[172] Unpacking this, I fail to see how the download of "videos, stories and images" adds anything to the argument defence counsel wishes to make. If the "videos, stories and images" depict consenting adults, there is no criminality in it.

[173] On the other hand, the story of the teacher having sex with the underage student could meet the definition of child pornography under subsections 163.1(1)(b) or (c) of the Code. However, I do not know enough about the story to determine whether sexual activity with a person under the age of 18 was "advocated" or "counselled", which subsection 163.1(1)(b) would require in order to attract criminal liability.

[174] Equally, I do not know if the "dominant characteristic" of the story ". . .is the description for a sexual purpose of sexual activity with a person under the age of 18 that would be an offence under the [Code]," which subsection 163.1(1)(c) requires to make out the offence.

[175] Subsection 163.1(6) provides as well a statutory defence of legitimate, artistic creation where it poses no undue risk of harm to children under 18.

[176] On the scant facts of the story presented, I can see how compelling arguments could be made that the story is legitimate literature and therefore legal, assuming it meets the definition of child pornography. Indeed, Vladimir Nabokov wrote Lolita. I doubt any Court in Canada would convict one of our citizens for having that novel in his or her library. It is art. I may convict Nabokov for bad prose, but that is a matter of taste and beside the point.

[177] Defence counsel argued that I should treat the facts in Aylesworth and Ayoob as if they had been raised by her as reasonable hypotheticals on her s.12 Charter argument. Defence counsel appears to contend that if on the facts of those cases, the learned jurists saw fit to impose sentences of less than six months, then in the present day, where six months is a starting point, surely what Bovard J. and Thomas J. imposed is proof in and of itself that today's MMS must be cruel and unusual. I disagree.

[178] Bovard J. in Aylesowrth and Thomas J. in Ayoob were not asked to interpret Parliament's intent with the enactment of the MMS. Both of these learned jurists decided these cases over a decade ago. Times really do change. That our nation's lawmakers have chosen in their wisdom to set a more severe penalty for possession of child pornography than what once existed is their prerogative – indeed their duty.

[179] What the case law dealing with child pornography certainly makes clear is that as a social evil, it is on the rise. Parliament's response can be understood as an attempt to send a more stern message of deterrence and denunciation to those who wish to feed the market for this offensive material. Parliament may see fit to increase the severity of the punishment for its possession to protect a vulnerable sector of society – our nation's greatest resource – our children.

[180] The analogy made by defence counsel is fundamentally flawed because the question – whether the imposition of a six month MMS constitutes cruel and unusual punishment – was understandably not considered in Aylesowrth and Ayoob. It was inconceivable as one of the issues to be decided. Neither Crown nor defence suggested a penalty even approaching six months jail was worthy of consideration at the time. It was an entirely different era. The law is not static. It must keep pace with societal values as they are reflected through Parliament's enactments. Deference to Parliament must be shown. As the Supreme Court of Canada stated in R. v. Latimer, 2001 SCC 1 at para 77:

77 In emphasizing the deferential standard for the s. 12 review, this Court has repeatedly adopted the following passage from R. v. Guiller, at p. 238, per Borins Dist. Ct. J.:

It is not for the court to pass on the wisdom of Parliament with respect to the gravity of the various offences and the range of penalties which may be imposed upon those found guilty of committing the offences. Parliament has broad discretion in proscribing conduct as criminal and in determining proper punishment. While the final judgment as to whether a punishment exceeds constitutional limits set by the Charter is properly a judicial function, the court should be reluctant to interfere with the considered views of Parliament and then only in the clearest of cases where the punishment prescribed is so excessive when compared with the punishment prescribed for other offences as to outrage standards of decency.

[181] The defence also suggests that R. v. Tootoosis, [2010] A.J. No. 20, may be of assistance to her as a reasonable hypothetical. I am at a complete loss to understand how it could be. Barrows J. found Mr. Tootoosis guilty of possession of child pornography for videos and images found on computers and memory sticks located in his residence upon execution of a search warrant by a member of the Edmonton Police Service. Mr. Tootoosis testified that he did not download the images or videos himself. He had no knowledge of the material until he was notified by one L.L.

[182] Burrows J. did not believe the explanation offered by Mr. Tootoosis. The number of devices upon which the child pornography was located, and the length of time over which Mr. Tootoosis owned the devices in question suggested he accessed and controlled the storing of the material. Burrows J. thus convicted Mr. Tootoosis for possession of the 15 videos and 52 photos which met the definition of child pornography in s. 163.1(1)(a) of the Code.

[183] The reported case does not discuss the sentence imposed for Mr. Tootoosis. Again, I do not follow how the facts as found by Burrows J. in Tootoosis supports the defence argument in respect of a reasonable hypothetical.

[184] The last case to which the defence requested I turn my mind involved a consideration of the circumstances of the offence and offender in R. v. Swaby, [2017] B.C.J. No. 2250, and the reasonable hypothetical posited there. Mr. Swaby, the offender, pled guilty to possession of child pornography before a provincial court judge on June 6, 2016 contrary to s. 163.1(4) of the Code. At the time, the offence demanded the imposition of a MMS of 90 days jail.

[185] Mr. Swaby was 23 years old with no criminal record when he entered his guilty plea. He suffered from significant cognitive impairments and mental health issues. He challenged the MMS in its application to him and based on a reasonable hypothetical his counsel posed. The provincial court judge held the MMS violated s. 12 of the Charter as cruel and unusual punishment. Marchand J. of the Supreme Court of British Columbia agreed on a summary conviction appeal made before him, and upheld the decision of the provincial court judge.

[186] Mr. Swaby's computer, seized by police upon a search of his home pursuant to a warrant, contained 399 files which met the definition of child pornography. The images depicted were vile. Some involved the sexual abuse of children as young as one year old. He gave an inculpatory statement following his arrest. He acknowledged he searched for child pornography because he was bored. He understood it was wrong. He watched it for its shock value. He indicated he masturbated while watching the child pornography but denied being sexually attracted to children. He said he had never inappropriately touched a child.

[187] The two psychological assessments prepared for Mr. Swaby indicated that he:

(a) had difficulty finding his way to the assessments requiring both psychologists to go out on the street to find and then escort Mr. Swaby to their offices;

(b) had significant cognitive challenges;

(c) had a history of hearing voices in his head;

(d) had a history of depression, including suicidal ideation and suicide attempts;

(e) at the time of his offending, was experiencing depression and social isolation which he dealt with by spending excessive amounts of time online while alone in his room;

(f) had suffered from chronic sleep disturbance;

(g) was curious about child pornography;

(h) had pedophilic interests but not a pedophilic disorder;

(i) presented a relatively low risk to commit a future sexual offence or child pornography offence; and

(j) would benefit from mental health supports but, given his low intellectual functioning, would likely not benefit from specialized sex offender treatment.

[188] Mr. Swaby's IQ was found to be in the range of 49 to 59. He also was diagnosed with a significant schizoaffective disorder and a major depressive disorder.

[189] One of the assessors, Dr. Bartel stated he had ". . .significant concerns about Mr. Swaby's ability to tolerate incarceration, his potential heightened suicide risk as a result, and the potential for being victimized by others in custody." From a "mental helath perspective", Dr. Bartel concluded that "incarceration would be very detrimental to this young and vulnerable man."

[190] The provincial court judge concluded that Mr. Swaby was a "rare and unique" case. His Honour emphasized Swaby's:

(a) reduced moral blameworthiness,

(b) inability to tolerate incarceration, and

(c) the negative effect incarceration would have on his risk to re-offend.

[191] The provincial court judge did not under the circumstances consider it necessary to consider any reasonable hypotheticals.

[192] Further, Marchand J. held at para 93:

"After taking into account the trend towards longer custodial sentences, in my view, the appropriate range for a first time offender with a collection of child pornography similar to Mr. Swaby's would be a jail sentence of six to 15 months. The range would, however, be lower if the first time offender had a small collection of child pornography and/or a particularly reduced level of moral blameworthiness."

[193] Clearly, the rationale for the determination in Swaby that the 90 day MMS for possession of child pornography breached s.12 of the Charter lies in the "reduced level of moral blameworthiness" of the offender. This factor is entirely absent as a sentencing consideration for Mitchell and Clouthier. They both knew how wrong their conduct was.

[194] Swaby assists the defence insofar as Marchand J. urges the consideration of offenders who suffer from mental health conditions and cognitive impairments as reasonable hypotheticals. It is true that in many instances, these types of offenders are less morally blameworthy than those capable of understanding the wrongfulness of criminal conduct.

[195] Swaby is headed to the British Columbia Court of Appeal. Time will tell if the findings made by the sentencing judge, and the reasoning employed by him and Marchand J., on the summary conviction appeal will be upheld.

[196] In the final analysis, I certainly cannot conclude that the reasonable hypotheticals proposed by the defence before me are deserving of a determination that s. 163.1(4)(b) of the Code is unconstitutional. They would not lead to a breach of s.12 of the Charter. They would not engender cruel and unusual punishment.

[197] The strongest argument made by the defence challenges the logic in making the possession of illicit materials, including material that does not involve the actual abuse of minors (such as cartoons or written stories), should have a lower MMS than an offence that involves the actual physical and sexual abuse of children. I agree this is absurd. To my mind, this argument serves, however, only to support increasing the MMS for the offence of sexual touching in s. 151(b) of the Code.

[198] Again, the protection of children within Canadian society is sacrosanct. Severe punishment for those who harm or abuse them is deserved. Viewed in this light, the MMS is simply a reflection of societal values. The ground floor is in place for those who contravene certain laws. Judges must not send offenders below that level except in rare circumstances where the set punishment is cruel and unusual.

Does the MMS set out in s. 163.1(4) of the Code Breach s.7 of the Charter?

[199] The defence posits that the increase in the jail time to be mandatorily imposed for child porn offences under s. 163.1(4) of the Code is not evidence-based. Rather, it is the product of unsubstantiated political will. Sentencing is inherently a judicial function. It is discretionary. When that discretion is taken away from judges through the use of a MMS, it is the court's duty to scrutinize the constitutionality of such provisions. A minimum number of months or years to be imposed as an MMS cannot be an arbitrary figure. In the span of ten years the minimum under s.163.1(4)(b) of the Code went from 14 days to 180 days without any reason for it, short of Parliament's whim – according to the defence.

[200] The difficulty with this argument is that starting points or floors below which judges cannot descend have existed in Canadian law since our nation's inception. Our country's criminal lawmakers – Parliament – must decide what the law is and what the punishment for breaking it will be. That is Parliament's role. Judges interpret and apply the law. The Charter permits judges to examine the constitutionality of impugned provisions. A very specific section of the Charter – s.12 – speaks to a prohibition on punishment which is "cruel and unusual". The case law, which has developed from interpreting the meaning of s.12, sets the test as one of "grossly disproportionality" in the circumstances of the offence and the offender. That is the judge's yardstick. There is no need for use of another section of the Charter – s.7 – to gauge what is grossly disproportionate. To do so would open the door to the development of a new test by reading into section 7 of the Charter as a principle of fundamental justice the notion of arbitrary sentencing. Only sentences, or "punishment", which is "cruel and unusual" offends the Charter – nothing less. If sentencing minimums could be struck down constitutionally for being "arbitrary", surely s. 12 of the Charter would have included such language, especially when one considers the use of the word "arbitrary" in other sections of the Charter.

[201] Simply put, the defence cannot resort to s.7 of the Charter to contend that the MMS under s. 163.1(4)(b) of the Code violates the right to "life, liberty and security of the person" because a lesser standard – "arbitrariness" – is proffered as the new test for the constitutionality of a certain prescribed sentence. Indeed, McLachlin C.J. directs us to read s.7 in a way that is consistent with s.12 of the Charter.

[202] For this reason, I cannot find that the MMS set out in s.163.1(4) of the Code offends s.7 of the Charter.

The Saving Provision – s.1 of the Charter

[203] Having found no Charter violations under sections 12 and 7 on the evidence adduced and the reasonable hypotheticals proposed by the defence, there is no requirement to conduct any s.1 Charter analysis.

Constitutional Exemptions

[204] Since Ferguson was decided in 2008, individualized exemptions are no longer available as a remedy for constitutional infringements. Further, Mitchell and Clouthier have failed to satisfy me on a balance of probabilities that any of their Charter rights have been breached.

Conclusion

[205] I shall impose upon Mitchell a sentence of ten months jail. For Clouthier, it will be nine months. Both will be subject to two year periods of probation on the terms earlier set out. Both will be subject to ancillary Orders as well as earlier provided.

Dated: May 10, 2018

_________________________________

The Honourable Mr. Justice M. March

Footnotes

1 R. v. Nur, 2015 SCC 15, at para 46

2 R. v. Lloyd, 2016 SCC 13, at para 24

3 R. v. Oakes

4 See also Carter v. Canada (A.G.), 2015 SCC 5, at para. 125.

5 St. Lawrence Treatment Centre, O.C.I.

6 Dr. Federoff's Report is dated October 23, 2017, but the date upon which Mr. Clouthier was interviewed is not specifically mentioned.

7 See Dr. Federoff's October 23, 2017 Report

8 See also R. v. Walker, [2017] B.C.S.C. 1301 at paras 42 & 43 [Swaby para 86]

9 See Lloyd supra at para. 41; R. v. Malmo-Levine, 2003 SCC 74 at para. 160.