Court Information

Ontario Court of Justice

Date: 2019-08-08

Court File No.: Guelph #18/3143 & #18/8272T

Parties

Between:

Her Majesty the Queen

— And —

Stuart John Cunningham

Judicial Officer and Counsel

Before: Justice M. K. Wendl

Heard on: July 23rd and August 8th, 2019

Reasons for Judgment released on: August 8th, 2019

Counsel:

• Tom Meehan, for the Crown
• Ranney Hintsa, for the defendant Stuart Cunningham

Judgment

Wendl J.:

Guilty Plea and Facts

[1] Stuart John Cunningham pled guilty to the possession of child pornography contrary to section 163.1(4) of the Criminal Code. The facts are straightforward. Mr. Cunningham was in possession of 76 pictures on his computer. He has a criminal record, it is unrelated.

[2] There is a joint position for six months custody. The Court will accede to this joint request. However, there are two issues this Court needs to decide.

Issues to be Determined

[3] First, the offender initially made an application for increased credit for pre-sentence custody, 2:1 instead of the standard 1.5:1, because of harsh conditions at the jail. During submissions counsel conceded, rightly, that the conditions experienced by Mr. Cunningham do not provide a basis for increased credit. However, since the issue was raised, this Court feels it is incumbent to deal with the parameters of such an application.

[4] The second issue is the extent of the 161 order that the Court is required to consider making for a conviction under section 163.1(4).

Credit For Particularly Harsh Presentence Incarceration

[5] The Court of Appeal, in an endorsement, in Duncan, indicated the following:

On our reading of the trial judge's reasons, we agree with counsel. The trial judge effectively held that any credit or consideration in relation to presentence incarceration was capped at the 1.5 limit. We agree with counsel that in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1). In considering whether any enhanced credit should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused.

[6] Some are of the outlook that Duncan stands for the proposition that the Court can give 2:1 credit for pre-sentence custody in particularly harsh circumstances. The problem with allowing pre-sentence custody over 1:5 is that Section 719(3.1) of the Criminal Code allows only for a maximum pre-sentence credit of 1:5 to 1.

[7] Absent a constitutional challenge, it is the view of this Court that it cannot give credit above 1:5 to 1. Duncan cannot be viewed as striking down that legislation.

[8] That being said, particularly harsh circumstances of incarceration may have an impact on the fitness of a sentence.

[9] The proper paradigm through which to analyze the impact of particularly harsh circumstances of incarceration is not by increasing pre-sentence custody above 1:5, but is through the collateral consequence analysis advanced in Suter.

Though collateral consequences are not necessarily "aggravating" or "mitigating" factors under s. 718.2(a) of the Criminal Code — as they do not relate to the gravity of the offence or the level of responsibility of the offender — they nevertheless speak to the "personal circumstances of the offender" (Pham, at para. 11). The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity: ibid.; s. 718.2(b) of the Criminal Code. The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances. Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer "like" the others, rendering a given sentence unfit.

[10] There is no rigid formula for taking collateral consequences into account. Ultimately, particularly harsh conditions of incarceration may render a fit sentence unfit.

[11] As a result, although this Court declines to give credit above 1:5 to 1, it will consider the circumstances of incarceration as a collateral consequence.

[12] As stated in Duncan, for lockdowns to have an impact for collateral consequences credit, there must be evidence of the impact of those conditions on the accused. Therefore, I believe it is helpful to review some of the cases where collateral consequence credit for harsh conditions of incarceration or, Duncan credit, has been granted and/or denied.

Case Law Review

[13] In Holman, the defendant was in custody at the TSDC for 409 days, 193 days of which were spend in lockdown, 65 days of which were partial. Mr. Holman testified that enduring lockdown took a toll on his emotions and that confinement during consecutive days was particularly stressful. The Court accepted this evidence and gave collateral consequence credit for harsh circumstances of incarceration. The Court noted during sentencing that there is no precise formula to calculate harsh pre-sentence custody credit.

[14] In Powell, collateral consequence credit was given for harsh conditions of incarceration. According to the affidavit materials that were filed on the sentencing hearing, and seemingly accepted by the sentencing court, the accused has been under "lockdown" conditions in this facility for nearly 300 full days and just over 140 partial days. Such conditions require inmates to remain locked in their cells instead of being permitted access to the range. Such conditions also resulted in: (1) restricted visits from friends and family; (2) limited use of the telephone; (3) sporadic access to showers and changes of clothing and bedding; (4) meals are often provided late and cold; and (5) restricted access to exercise in the yard. The accused testified, by way of affidavit, that these lockdown conditions caused him stress and were harsh and punitive, especially to the extent that they prevented him from enjoying regular visits with his family. Again, the court noted "there is no helpful mathematical formula that might be applied in these circumstances."

[15] In Deiaco, the Court found that the accused was not entitled any collateral consequence credit for harsh conditions of incarceration. The basis for the rejection was the 27 findings of misconduct and the lack of evidence of a negative impact of the lockdowns on the accused.

[16] In Weir, while the court recognized significant lockdowns during the accused's time in pre-sentence custody, it declined "Duncan" credit. There was no evidence adduced by Mr. Weir as to any adverse effect on him flowing from the locked down conditions. There was no affidavit from him indicating if or to what extent his physical and psychological health was affected. Without further evidence in this regard, the Court was not able to say that Mr. Weir suffered particularly harsh treatment entitling him to any collateral consequence credit.

Principles Established

[17] There is an obvious thread that flows through these cases. Without evidence from the accused, the court will not ordinarily give "Duncan" credit. The evidentiary burden need not be onerous. It may be obtained by affidavit evidence or even through the submissions of counsel at sentence, if not challenged by the Crown. Furthermore, evidence of misconduct will also detract from that credit. Finally, as mentioned above, there will be no formulaic approach to the amount of credit provided by the court. This is a case by case analysis.

[18] I will note one final thought on the subject. In circumstances of a joint position, the Crown and Defense should take into account harsh pre-sentence custody conditions when coming to their joint resolution. Since this Court views the "Duncan" credit through the collateral consequence analysis and not by increasing pre-sentence custody above 1:5 to 1, giving "Duncan Credit" will necessarily involve a reduction of the aggregate sentence and, therefore, departing from a joint submission. The Court will not deviate from a joint submission unless it brings the administration of justice into disrepute.

Section 161 Order

[19] The purpose of section 161 is to protect children from sexual violence. The order is discretionary. The Court requires an evidentiary basis to impose the order. The terms requested must be reasonable and must be tailored to the specific risk posed by the accused.

[20] Section 161 allows the Court significant latitude to impose restrictions on a person who falls under its ambit. The Court can restrict access to public parks, pools, playgrounds, schoolyards or any place a person under the age of 16 can reasonably be. It can restrict the places where an offender can work or volunteer, their access to the Internet and social media and access to persons under the age of 16 generally.

It is punishable by a maximum of 4 years in jail.

[21] Needless to say, this has a significant impact on the liberty interest of an offender.

Comparative Case Law

[22] In Shultz, the accused was convicted of possession of child pornography. The offender had 101 pictures and 155 movies in his possession. The offender underwent a risk assessment and was found at a low risk to re-offend. The sentencing Court imposed restrictions on the offender's access to the Internet, under 161.1(d) but did not impose any other order under section 161.1(a), (b) or (c) (restrictions on access to pool, work, persons under 16 generally etc.).

[23] In Scattolin, the offender pled guilty to the possession of child pornography. The police found 7,317 child pornography images and 64 child pornography movies on a computer tower and another 612 child pornography images on another computer. Harris J., in Scattolin, did impose conditions under sections 161.1(a), (b) and (c) in addition to conditions under 161.1(d) (Internet). Even though Harris J. noted that it had been six and a half years since the offence and there was no indication of any further offences, it seems that without a meaningful risk assessment, conditions under 161.1(a), (b) and (c) were required.

[24] In O'Brien, another child pornography possession case, Martins J. did not impose any restrictions under section 161.1(a), (b) and (c). However, again, a risk assessment was available to the sentencing court. The risk assessment in O'Brien concluded that the offender was at low risk to re-offend.

Application to Present Case

[25] This Court does not have a risk assessment. The evidentiary basis that this Court has is simply the possession of 76 pictures of child pornography. The possession of child pornography is in and of itself child abuse, and in viewing child pornography the offender participated in the abuse of children.

[26] In terms of his personal circumstances, Mr. Cunningham is a marginalized individual. Counsel indicates that he is isolated and has limited income. Counsel argues that this isolation precipitated his accessing the pornography.

[27] On the sole evidence in front of this court, the possession of 76 child pornography pictures, the only inference this Court can draw is that Mr. Cunningham is a danger to persons under the age of 16. Therefore, this Court will impose restrictions under section 161(a), (b), (c) and (d).

Conclusion

[28] I agree to the joint submission of six months minus pre-sentence custody of 58 days enhanced to 87 days, SOIRA for 10 years, a DNA order and probation for 12 months.

[29] I make an order pursuant to section 161 of the Criminal Code prohibiting Mr. Cunningham for ten years from:

(a) attending a public park or public swimming area where female persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre unless accompanied by his common law spouse or other responsible adult person who is aware of this order;

(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 female persons under the age of 16 years;

(c) having any contact – including communicating by any means – with a female person who is under the age of 16 years unless supervised by his common law spouse or another responsible adult person who is aware of this order;

(d) using the Internet or other digital network to access or distribute child pornography, or using the Internet or other digital network, including email, MSN Messenger, any other messenger system or any chat rooms, or Skype or WhatsApp or Facebook or Twitter or Instagram or Snapchat or any other social network, for the purpose of communicating with a female person under the age of 16 years. When communicating with anyone by means of such a computer system or other device other than in the course of his employment he will take reasonable steps to ascertain the age of the person; further, when communicating with anyone by means of such a computer system or other device other than in the course of his employment he shall identify himself by his full real name, Stuart Cunningham, and shall not use any pseudonym, nickname or code name to identify himself.

[30] Finally, I recommend that probation undertake a risk assessment. If a risk assessment is provided to this Court, it will consider a variation of the 161 order under section 161(3).

Released: August 8, 2019

Signed: Justice M. K. Wendl