Citation: R. v. Machulec, 2016 ONSC 8219
File No. CR-14-3150-0000
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
JOHN SEBASTIAN MACHULEC
R E A S O N S F O R S E N T E N C E
BEFORE THE HONOURABLE JUSTICE K. MUNROE
on November 16, 2016, at WINDSOR, Ontario
INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED,
BROADCAST OR TRANSMITTED PURSUANT TO SECTION 486.4
OF THE CRIMINAL CODE OF CANADA BY ORDER OF
JUSTICE K. MUNROE, SUPERIOR COURT OF JUSTICE,
DATED NOVEMBER 16, 2016
APPEARANCES:
G. Spartinos Counsel for the Crown
F. Miller Counsel for John Sebastian Machulec
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED,
BROADCAST OR TRANSMITTED PURSUANT TO SECITON 486.4
OF THE CRIMINAL CODE OF CANADA BY ORDER OF
JUSTICE K. MUNROE, SUPERIOR COURT OF JUSTICE,
DATED NOVEMBER 16, 2016
ENTERED ON PAGE
REASONS FOR SENTENCE AND CHARTER CHALLENGE 3
Legend
[sic] – Indicates preceding word has been reproduced verbatim and is not a transcription error.
(ph) – Indicates preceding word has been spelled phonetically.
Date Transcript Ordered: December 21, 2018
Date Transcript Completed: January 3, 2019
Date Ordering Party Notified: January 29, 2019
WEDNESDAY, NOVEMBER 16, 2016
R E A S O N S F O R S E N T E N C E A N D
C H A R T E R C H A L L E N G E
MUNROE, J. (Orally):
Reasons for sentence and Charter challenge.
John Sebastian Machulec is before me for sentencing for the crime of possession of child pornography contrary to Section 163.1(4) of the Criminal Code. At the time of the crime, Section 163.1(4) included a six-month mandatory minimum jail sentence for cases like this one which proceeded by indictment. The offender challenges the constitutionality of that mandatory minimum sentencing provision saying that it violates his right not to be subjected to any cruel or unusual punishment as guaranteed by Section 12 of the Charter of Rights and Freedoms.
Thus, before sentencing Mr. Machulec, I must rule on the Charter challenge.
Generally speaking, a minimum mandatory sentencing provision would constitute cruel and unusual punishment if it is grossly disproportionate to the appropriate sentence for the wrongdoing. The analysis is in two steps. First, the Court must determine whether the provision results in a grossly disproportionate sentence on the offender before the Court. If not, then the Court must determine “whether the provisions reasonably foreseeable applications will impose grossly disproportionate sentences on others.” R. v. Nur, 2015 SCC 15, at paragraph 77. If a Charter violation is found, then I must determine whether the law can be saved under Section 1 of the Charter.
Issues
Is the statute’s minimum mandatory sentence grossly disproportionate for a fit sentence of Mr. Machulec? What is the appropriate sentencing range for violations of Section 163.1(4)?
Would the statute’s minimum mandatory sentence be grossly disproportionate for a sentence of a reasonably foreseeable offender?
If gross disproportionality is found, is the minimum mandatory sentencing provision saved by Section 1 of the Charter?
What is the appropriate sentence for Mr. Machulec?
Background
On August 16, 2016, following an extended voir dire on search issues and a subsequent abbreviated trial, I found Mr. Machulec guilty of possession of child pornography between December 21, 2012 and January 31, 2013, contrary to Section 163.1(4) of the Criminal Code.
A sentencing hearing, which included submissions on the Charter issue, was held on November 14 and 15, 2016.
Issue One:
Is the statute’s minimum mandatory sentence grossly disproportionate for a fit sentence of Mr. Machulec? What is the appropriate sentencing range for violations of Section 163.1(4)?
The presentence report was tendered and is now Exhibit 1. I have reviewed and considered the presentence report. I have heard and consider the words of Mr. Machulec.
I have reviewed and consider the cases submitted by both counsel. Understandably, those submitted by the prosecution call for a significant jail term and those submitted by the defence call for a lesser sentence. Just sentencing is a very difficult decision driven by the unique facts and circumstances of each case and of each person. One size does not fit all. Cases decided by other courts are helpful to provide an overall framework of a sentencing area, but at the end of the day, it is for me to decide based on the particular facts of the offence and of the offender within the applicable principles of law.
I have heard, appreciate and consider the submissions of counsel for both parties. The prosecution says 6 to 15 months in jail is the appropriate range for possession of child pornography. With regard to Mr. Machulec, the prosecution seeks a sentence of 8 to 12 months plus probation. The defence says the appropriate range is 3 to 9 months in jail. With regard to Mr. Machulec, the defence submits a conditional sentence of 3 to 6 months is appropriate if the minimum mandatory provision is struck down.
I agree with counsel that a determination of the appropriate range of sentencing for simple possession of child pornography is not a simple task. The task is complicated by the imposition of increasingly longer minimum mandatory sentences by Parliament. See R. v. Delchev, [2014] O.J. No. 2769, at paras. 18 & 19 (Ont. C. A.) The cases presented span from 45 days at the low-end, R. v. Mahannah, [2013] O.J. No. 6330 Ont. Sup. Ct.), to two years at the high-end, R. v. Pelich, 2012 ONSC 4100, [2012] O.J. No. 3262 (Ont. Sup. Ct.) I have found no Ontario Court of Appeal case directly addressing the appropriate sentencing range for possession of child pornography.
In determining the appropriate range of sentence, the Court must consider a wide range of factors including the gravity of the offence, the personal characteristics of the offender, the circumstances of the case, the sentencing principles, the penological goals, the existence of appropriate noncustodial alternatives, and the effects of the sentence on the particular offender. Nur, at paras. 39 - 42.
Gravity of the Offence:
The nature of this crime, child pornography, incites revulsion. As stated by Mr. Justice Fish in R. v. Morelli, 2010 SCC 8, 252 C.C.C. (3d) 273, at para. 8, (S.C.C.):
To be sure, offences involving child pornography are particularly insidious. They breed a demand for images that exploit vulnerable children, both economically and morally. Understandably, offences of this sort evoke a strong emotional response. They generate widespread condemnation and intense feeling of disapprobation, if not revulsion.
Mr. Justice Fish appropriately added the need for the courts to be particularly vigilant when hearing this type of inflammatory offence. “While the law must be relentlessly enforced, legal requirements must be respected, and constitutional safeguards preserved.” Morelli, at para. 9.
Our Court of Appeal also has expressed strong views on possession of child pornography in R. v. E.O., 2003 CanLII 2017 (ON CA), [2003] O.J. No. 563, at para. 7, (Ont. C. A):
Possession of child pornography is a crime of enormous gravity, both for the affected victims and for society as a whole. For that reason, the courts have repeatedly recognized that the most important sentencing principles in cases involving child pornography are general deterrence and denunciation. Further, the offence of possession of child pornography requires the imposition of sentences which denounce the morally reprehensible nature of the crime, deters other from the commission of the offence, and reflects the gravity of the offence: see R. v. Sharpe (2001), 2001 SCC 2, 150 C.C.C. (3d) 321 (S.C.C.) and R. v. Stroempl (1995), 1995 CanLII 2283 (ON CA), 105 C.C.C. (3d) 187 (Ont. C. A.).
Understanding the importance of general deterrence in sentencing for possession of child pornography, care must be taken to include all of the sentencing principles including the fundamental principle of proportionality. “[A] person cannot be made to suffer a grossly disproportionate punishment simply to send a message to discourage others from offending.” Nur, at para. 45.
Necessity of punishment to achieve valid penal purpose:
The harm to children and thus the emphasis on denunciation and deterrence was reviewed in detail by the Supreme Court in R. v. Sharpe 2001 SCC 2, [2001], 150 C.C.C. (3d) 321. There, the Court ruled on the constitutionality of the law banning possession of child pornography. Acknowledging that the law restricts the right of expression guaranteed by Section 2(b) of the Charter, the Court addressed the Section 1 issue: whether this limit on a Charter right is justifiable given the harm possession of child pornography can cause children. Sharpe, at para. 5.
The Court found that Parliament’s objective in passing the law criminalizing possession of child pornography was to prevent harm to children. Parliament sought to include material that posed a “reasoned risk of harm” to children.
Sharpe, at paras. 34 & 82.
This objective is pressing and substantial. Over and above the specific objectives of the law in reducing the direct exploitation of children, the law in a larger attitudinal sense asserts the value of children as a defence against the erosion of societal attitudes toward them.
Sharpe, at paragraph 82.
After first noting the more attenuated links to harm by simple possession as compared with its manufacture and distribution, Sharpe, at para. 28, the Court reviewed the harm alleged by the Crown as follows:
Cognitive Distortions: The Crown argued that possessors of child pornography “may come to see sexual relations with children as normal and even beneficial. Moral inhibitions may be weakened.” Sharpe, at para. 87. The Court was satisfied of this connection. “Banalizing the awful and numbing the conscience, exposure to child pornography may make the abnormal seem normal and the immoral seem acceptable.” Sharpe, at para. 88.
Fuel Fantasies/Incite Offences: The Crown alleged possession of child pornography to those attracted to children would fuel fantasies and make those persons more likely to offend. The Court found disparate scientific opinion but concluded this lack of unanimity was not fatal.
Some studies suggest that child pornography, like other forms of pornography, will fuel fantasies and may incite offences in the case of certain individuals. This reasoned apprehension of harm demonstrates a rational connection between the law and the reduction of harm to children through child pornography.
Sharpe, at para. 89.
Aids Prosecution: The Crown alleged that criminalizing possession of child pornography will aid in the prosecution of the manufacturers and distributors of the material. The Court declined to decide whether this purported harm alone would provide the necessary justification. Rather, the Court concluded, “it is sufficient to note that the fact the offence of possession aids prosecution of those who produce and distribute child pornography is a positive side effect of the law.” Sharpe, at para. 90.
Use to Groom: The Crown alleged that child pornography is used to seduce children. The Court found the evidence in this regard to be “clear and uncontradicted.” “The ability to possess child pornography makes it available for the grooming and seduction of children by the possessor ....”
Sharpe, at para. 91.
- Abuse of Children in the Production: The Crown alleged that children are abused during the production of child pornography. The Court concluded that, “the link between the production of child pornography and harm to children is very strong.” The child is abused during its making and thereafter may live not knowing whether the personally degrading material still exists.
Sharpe, at para. 92.
In conclusion, the Supreme Court found a rational connection between the purpose of the law and the means adopted to affect this purpose and stated:
Possession of child pornography increases the risk of child abuse. It introduces risk, moreover, that cannot be entirely targeted by laws prohibiting the manufacture, publication and distribution of child pornography. Laws against publication and distribution of child pornography cannot catch the private viewing of child pornography, yet private viewing may induce attitudes and arousals that increase the risk of offence. Nor do such laws catch the use of pornography to groom and seduce children. Only by extending the law to private possession can these harms be squarely attacked.
Sharpe, at para. 94.
The Court concluded that the Crown “met the burden of demonstrating that the possession of child pornography poses a reasoned apprehension of harm to children and that the goal of preventing such harm is pressing and substantial.” Sharpe, at para. 103.
I find the above summarized analysis by the Court in Sharpe helpful in analyzing whether a minimum mandatory jail sentence is reasonably necessary to achieve a valid penal purpose. I conclude that it is.
Appropriate Non-Custodial Alternative
Counsel for Mr. Machulec argues the appropriateness of a conditional sentence, if available. I have considered and conclude a conditional sentence is not appropriate here. Given all the circumstances, I am simply not satisfied that a conditional sentence here is consistent with the fundamental purpose and principles of sentencing. The nature of this very serious crime alone calls for more denunciation and deterrence than a conditional sentence can provide. A jail sentence is appropriate and fit in all the circumstances.
Circumstances of the Offence
Mr. Machulec stands convicted of possessing 7,694 separate images of child pornography both on his home computer and on various computer storage devices or discs also kept in his home. This collection of child pornography was seized from Mr. Machulec over approximately 40 days from the last part of December 2012, through the month of January 2013. The computer images were not of live persons but were high quality animation often called “anime.” These were not crude drawings. They were very realistic computer-generated persons. Many of the images were contained in picture stories involving underage children. The stories began with innocent activity then progressed to the removal of clothing and the children’s participation in various sex acts including sexual intercourse, cunnilingus and fellatio. There is no evidence that Mr. Machulec ever shared any of these images with others either via his computer or otherwise. The child pornography images were discovered by the 16-year-old daughter of Mr. Machulec’s friend and tenant who saw them over the shoulder of Mr. Machulec as he was viewing his computer screen in his home. There is no evidence that this viewing by the girl was intentional on the part of Mr. Machulec. The subject child pornography concerned sex acts with children, but other than the sex acts themselves, did not include extraneous violence, bondage, bestiality, or other forms of aberrant sex. This is the crime for which Mr. Machulec is now being sentenced.
Circumstances of the Offender
Mr. Machulec now is 68 years of age. He was 64 years of age at the time of the crime. He was born in the Netherlands but came to Canada as a small child of four years of age. He was the oldest of three children and reports a positive childhood.
During his childhood and early adult years, Mr. Machulec lived in the Toronto area. He graduated from high school in 1968 at age 20 with a grade 13 diploma. He reports no learning or behaviour problems.
Mr. Machulec commenced work right after high school. He started with an appliance manufacturer and then to work at various Canadian Tire stores including for one in Sydney, Nova Scotia. He married while in Nova Scotia and the couple had a son, Joseph. The marriage ended, and the wife left son Joseph to be raised by his father. Mr. Machulec moved to Windsor with his son. He worked initially in construction and in 1997 again worked for a Canadian Tire store. He moved to another, larger Canadian Tire store where he remained until he retired at age 65 in 2013. Mr. Machulec worked his way up into various managerial positions with the store before retirement.
Mr. Machulec’s parents are both deceased. He reports a positive relationship with one of his sisters who resides in the Toronto area but has had friction with the other sister since his father’s passing. Mr. Machulec reports working on that relationship.
Mr. Machulec reports a close relationship with his son who lives in the area. The son was contacted by probation and confirmed the close relationship. Joseph Machulec described the offender as “the nicest, most harmless individual on this earth.” He said his father is always helping others, but this arrest changed him. Now the offender largely stays at home. Before the arrest Mr. Machulec volunteered with Scouts Canada for many years but the relationship was severed when they learned of his arrest. He now is more reclusive and embarrassed.
Mr. Machulec has no prior convictions. He has no history of substance abuse or any problems with alcohol or gambling.
By all accounts, Mr. Machulec is a hard worker. He had jobs through his entire life until his recent retirement at age 65. He also was active in volunteer work. He raised a son largely by himself.
Mr. Machulec reports health problems. In 2009, he had both knees replaced. In 2013, he had his shoulder rebuilt. He is diabetic and insulin-dependent. He has hypertension and high cholesterol. Recently he has been diagnosed with early Parkinson’s disease. He reports no mental health issues.
Defence counsel conceded the accuracy of the facts of the presentence report but added details which were not contested by the Crown. The above recitation is an amalgamation of both the PSR and Mr. Machulec’s elaboration.
Defence counsel contested certain of the conclusions contained in the PSR. First, the defence takes issue with the statement, “the offender did not appear to understand the severity of his actions.” The defence asserts that the time of the crime, the offender did not know possessing such material was illegal. There were contemporaneous statements made by Mr. Machulec to the police indicating his ignorance, his mistake of law. The Crown does not quarrel with this assertion and accepts it. Thus, according to the defence, since he did not know the illegality of the act of possessing this material, it is impossible for Mr. Machulec to understand the severity of it. The conclusion, according to the defence, punishes the offender for honest ignorance of the illegal nature of his conduct.
I disagree. Defence counsel misunderstands the point being made. It is easy to accept that because a person did not know conduct was illegal at the time, it is reasonable that the person may not know the severity of the conduct. But perhaps the more important timeframe is now, not then. What is the appreciation of the conduct now when the offender does know the conduct’s illegality? The answer to that question is relevant to sentencing as indicating remorse and a receptivity to rehabilitation, if needed. That is what the PSR author addressed by the statement. Mr. Machulec today does not understand the severity of his conduct. He shows no insight into his conduct. There has been no showing of genuine remorse. I agree that the challenged statement is accurate. Indeed, the same sentiment was repeated by Mr. Machulec in his allocution before me. I will address this matter again when I discuss the aggravating and mitigating factors.
Second, the defence says the resentment expressed by Mr. Machulec against his former roommate by turning in Mr. Machulec is natural and should not be used against him. Although I am not convinced that such resentment is natural, such an expression is not helpful to me and will not be used.
The defence repeatedly asserts that Mr. Machulec is not a pedophile nor otherwise a person sexually interested in children. Mr. Machulec says he was not interested in the seized material sexually but just enjoyed the stories. I do find it difficult to accept his claim given the nature and quantity of the material. There has been no assessment of Mr. Machulec presented to me showing that he is or is not a person sexually interested in children. Mr. Machulec certainly is not obligated to submit one. In sum, I do not know whether Mr. Machulec is or is not sexually interested in children. Thus, I will not consider any of this in my decision.
Principles of Sentencing
The statutory sentencing principles will be considered. Section 718.
The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community.
Section 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
Section 718.2 A Court that imposes a sentence shall also take into consideration the following principles:
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
Mitigating factors
First offender. Mr. Machulec has no prior criminal record. He was 64 years of age at the time of the offence and he is now 68 years of age. He has lived a long time without a blemish. This is a very prominent mitigating factor.
Good work history. Mr. Machulec, to his credit, has been hard-working throughout his long life demonstrating his responsibility and conformity to the rules of society.
Good character. Mr. Machulec raised his son largely by himself. He was and is a good father to his son and they continue to enjoy a mutually supportive relationship. This is commendable and shall be considered by me.
Ignorance of the law. Mr. Machulec says he did not know the animated child pornography he possessed was illegal. He further says he would not have possessed this material had he known it was illegal to do so. “Ignorance of the law is not an excuse.” Section 19 of the Criminal Code of Canada. However, it does lessen the moral blameworthiness of the offender which must and shall be considered.
Collateral consequences. Mr. Machulec already has been shamed by his arrest for this crime. His long standing relationship with Scouts Canada was severed. He is embarrassed and has turned inward. I accept the existence of negative collateral consequences arising out of this case as assisting in personal deterrence and denunciation and shall consider it as a mitigating factor.
Remorse and acceptance of responsibility. Mr. Machulec did not enter a guilty plea. In his desire to be able to make an appellate challenge to my Section 8 rulings, Mr. Machulec agreed to an abbreviated trial. Although I will not punish Mr. Machulec or any other defendant for wishing to preserve an issue on appeal, he receives only partial credit here for two reasons. First, full credit, in part, is given for the relinquishment of rights. That was done but only marginally here. Second, there is no showing of remorse or acceptance of responsibility here. Mr. Machulec never said that he now acknowledges the harm done by possessing this type of material. He never expressed genuine remorse for the conduct. He never showed any insight into his conduct. He almost suggests he is the victim here which I do not accept. I will not use this as an aggravating factor and I will only use it as a marginal mitigating factor.
Age and health issues. Mr. Machulec is a retired 68-year-old man who is an insulin diabetic with hypertension and high cholesterol. He also has been recently diagnosed with early Parkinson’s disease. Although none of these health problems are imminently fatal nor do they require extraordinary treatment, they will make any jail sentence imposed against Mr. Machulec more difficult and thus will be considered for its negative impact.
Aggravating Factors.
Nature of illegal material. Child pornography is particularly pernicious. The fact that it was animated and did not contain real persons does reduce its harm and thus its harmfulness, but it certainly does not eliminate its abhorrent nature. The gravity of the offence is high.
Quantity of illegal material. Mr. Machulec possessed a huge amount of child pornography, 7,694 separate images. This is a significant aggravating factor.
The child pornography possession offence before me now was a serious crime. A collection of 7,694 separate images of child pornography, albeit in realistic animation form, is a very large amount.
In sum, the principles of denunciation and deterrence are of prominence for this offence, but other factors also must be, and shall be, considered. These include the nature of the material, the circumstances of the offender, the effect of a penal sentence on the offender, and the balance of the statutory sentencing principles as well as the penological goals.
I conclude that a jail sentence between 6 and 18 months is the appropriate range for the crime of possession of child pornography. As defence counsel conceded, because the appropriate range of sentences for this crime encompasses the minimum mandatory sentence, the sentencing provision is not grossly disproportionate and, as applied to this offender, does not violate Section 12 of the Charter.
Issue Two: Would the statute’s minimum mandatory sentence be grossly disproportionate for a sentence of a reasonably foreseeable offender?
Before turning directly to this issue, it is necessary to review the law more fully on the meaning of grossly disproportionate and the hypothetical offender. The Supreme Court has examined these issues in this context in five major cases: R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045;
R. v. Goltz (1991), 1991 CanLII 51 (SCC), 67 C.C.C. (3d) 481;
R. v. Morrisey, 2000 SCC 39; Nur, 2015 and R. v. Lloyd, 2016 SCC 13.
Grossly Disproportionate
If the challenged sanction is “so excessively or grossly disproportionate as to outrage decency..., then it will amount to a prima facie violation of Section 12...” Goltz, at para. 41.
This is intentionally a “high bar” for what constitutes cruel and unusual punishment. The challenged provision “must be grossly disproportionate to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender.” This is more than merely excessive; care should be taken not to label every disproportionate or excessive sentence as being a constitutional violation. It must be grossly disproportionate. Nur, at para. 39. The test does not lightly invalidate statutes. Deference must be paid to Parliament.
Hypothetical Offender
The onus is on the challenging party “to demonstrate a reasonable hypothetical circumstance in which enforcement of the statute would violate Section 12 for imposing excessive or grossly disproportionate punishment...” Goltz, at para. 81.
A reasonable hypothetical or a reasonably foreseeable situation is “not far-fetched or only marginally imaginable”; it is “not licensed to invalidate statutes on the basis of remote or extreme examples.” “The applicable standard must focus on imaginable circumstances which would commonly arise in day-to-day life.” Goltz, at para. 69.
The inquiry into cases that the mandatory minimum provision may reasonably be expected to capture must be grounded in judicial experience and common sense.
Fanciful or remote situations must be excluded [citing Goltz]. To repeat, the exercise must be grounded in experience and common sense. Laws should not be set aside on the basis of mere speculation.
Nur, at para. 62.
The inquiry into reasonably foreseeable situations the law may capture may take into account personal characteristics relevant to people who may be caught by the mandatory minimum but must avoid characteristics that would produce remote or far-fetched examples.
Nur, at para. 76.
Here two claimed reasonably foreseeable situations are advanced to me for my consideration in this context. The defence asks me to consider the possession of a small number of cartoon images of the TV cartoon toddler of Maggie Simpson. The images qualify as child pornography because they display her vaginal region in a sexual way but there are no sex acts. The offender is much like Mr. Machulec, an older, first offender, a non-pedophile, with no knowledge that it is illegal to possess cartoon child pornography.
Based on my experience and common sense, I reject the reasonableness of this hypothetical advance by the defence. Even assuming that such a child pornography cartoon is not remote or far-fetched, attributing the characteristics of the offender to include being a non-pedophile or other person interested in such material is remote and far-fetched. It begs the question why any person would want to intentionally possess such items. Importantly, with that characteristic removed, the risk of harm so important to Parliament rises.
The second hypothetical was advanced by the Crown and comes from R. v LeCourtois, 2015 ONSC 190, at para. 12. One image described as “the least depraved” child pornography is self-generated by a 17-year-old young woman. She sends it to her boyfriend who possesses it for a short period of time and destroys it. The hypothetical was accepted by Kent J. and by the Crown before me as reasonable. Leaving aside the proof problems inherent in the example, I too accept it as reasonable.
The Court in LeCourtois concluded that the 45 day minimum mandatory sentence there was not grossly disproportionate sentence even in consideration of the hypothetical situation. LeCourtois, at para. 19.
After considering all the circumstances as reviewed above, I find that the statute’s minimum mandatory jail sentence of six months is not grossly disproportionate for a sentence of a reasonably foreseeable offender. Indeed, I do not consider it excessive given the nature of the crime and the harm to children it seeks to reduce. Thus, there is no violation of Section 12 of the Charter. The defence motion challenging the statute’s sentencing provision is dismissed.
Issue Three: If gross disproportionality is found, is the minimum mandatory sentencing provision saved by Section 1 of the Charter?
No disproportionality was found thus it is unnecessary to review this issue.
Issue Four: What is the appropriate sentence of Mr. Machulec?
Mr. Machulec, you possessed a very large quantity of child pornography. This, sir, is a very serious offence.
This sentence is not to exact revenge for the horrific material you possessed in mass. The process must never become inflamed. The sentence must be based on reason, legal principles, and compatibility with other cases.
However, given the nature of the crime, the sentence must express societal abhorrence of conduct of this kind. It must be of sufficient severity that it will protect children from the risk of harm. It must communicate society’s condemnation of this type of conduct. You, the offender, must be called to account.
Stand up, Mr. Machulec.
I intend to give you a sentence that properly addresses the principles of denunciation and deterrence, both personal and general, while still considering all of the sentencing principles.
The appropriate and fit sentence for you in this possession of child pornography case, taking into account all the circumstances including those in mitigation and those in aggravation, is eight months imprisonment. Accordingly, you are hereby sentenced to eight months in jail.
Pursuant to Section 731(1)(b) of the Criminal Code of Canada, you are hereby ordered to comply with an 18 month term of probation to commence on your release from custody. The terms of your probation are as follows:
To keep the peace and be of good behaviour;
To appear before the court when required to do so;
To notify your probation officer of any change of your name or address;
To report to a probation officer within two working days from your release from custody and thereafter as directed by your probation officer;
To attend and actively participate in any assessment, including any sexual behaviour assessment, as directed by your probation officer and to sign such releases necessary to authorize the probation officer to receive all results and to communicate with the assessor;
To attend and actively participate in any counselling and treatment, including sex offender counselling, as directed by your probation officer and to sign such releases necessary to authorize the probation officer to communicate with the counsellors or treating personnel; and
Not to possess any computer or other device capable of Internet access without advance written permission of your probation officer.
Pursuant to Section 737 of the Criminal Code of Canada, you are hereby ordered to pay a victim fine surcharge of $200 on or before 180 days from your release from custody.
With regard to a DNA sample order pursuant to Section 487.051(1), the offence before the court is a primary designated offence making such an order mandatory. Accordingly, you are hereby ordered to provide a sample of your bodily substance for the purpose of forensic DNA analysis.
Pursuant to Section 490.12(1), you are ordered to comply with the Sex Offender Information Registration Act for a period of 10 years.
Is there anything else from either side? You may be seated, Mr. Machulec.
MR. SPARTINOS: Just one thing I wanted – oh, two things actually. I have a copy of a forfeiture order, Your Honour.
THE COURT: Forfeiture of the....
MR. SPARTINOS: The tower and the discs.
THE COURT: You have any submissions on the forfeiture request, Mr. Miller? They’re seeking to forfeit the computer tower and the discs seized.
MR. MILLER: Well, if the computer tower is cleansed I don’t see that there is any reason to keep it, the discs obviously have to go.
THE COURT: Well, they’re doing it under Section 164.1.
MR. MILLER: Okay, that’s....
THE COURT: Which is things used for child pornography.
MR. MILLER: There’s really not much to say.
THE COURT: All right, I’ll sign the order, Mr. Spartinos. Anything else, sir?
MR. SPARTINOS: Just one other thing I wanted to put on the record, Your Honour. The – I was considering a 161 prohibition, but that specifically says - obviously 163.1 is an enumerated offence for 161, but it says in respect of a person who is under the age of 16 years. We don’t have a person....
THE COURT: We don’t have any person.
MR. SPARTINOS: No, we don’t.
THE COURT: Not in these facts or this case.
MR. MILLER: Thank you.
MR. SPARTINOS: Thank you.
THE COURT: Thank you. Mr. Machulec, I wish you the best, sir.
CLERK REGISTRAR: Order, all rise.
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is a true and accurate transcript of the recording of Regina v. Machulec, in the Superior Court of Justice, held at 245 Windsor Avenue, Windsor, Ontario, Courtroom 5, taken from Recording No. 0899-245-CRTRM5_20161116_124732_10_MUNROEKI.dcr which has been certified by Janis Farrell in Form 1.
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*This certification does not apply to the (Ruling(s), Reasons for Judgment, Reasons for Sentence, or Charge to the Jury) which was/were judicially edited.