CITATION: R. v. John, 2017 ONSC 810

COURT FILE NO.: 4055/15

DATE: 2017 02 07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

NATHANIEL JOHN

Lindsay Bandini, for the Crown

Lorne Sabsay, for the Accused

HEARD: December 5-6, 2016

REASONS FOR JUDGMENT

Woollcombe J.

Introduction

[1] On August 3, 2016, I released my Charter ruling in this case and declined to exclude evidence said by Mr. John to have been obtained in a manner that violated his Charter rights. On the basis of the Charter ruling, the defence did not contest the Crown’s case. Mr. John was found guilty of two counts of possession of child pornography, contrary to s. 163.1(4) of the Criminal Code of Canada.

[2] Count one was committed between January 4 and April 7, 2014. Count two was committed on May 22, 2014. At the time these offences were committed, s. 163.1(4)(a) of the Criminal Code provided that if the Crown proceeded by way of indictment, the offence carried a mandatory minimum sentence of six months incarceration. Mr. John is before me for sentencing.

[3] He brings an application for an order that s. 163.1(4) of the Criminal Code, which creates the mandatory minimum sentence for possession of child pornography, be struck down on the basis of a violation of s. 12 of the Charter. Section 12 of the Charter, of course, guarantees the right not to be subject to cruel and unusual punishment. In order to infringe s. 12 of the Charter, the mandatory minimum sentence must be grossly disproportionate to the appropriate punishment, having regard to the circumstances of the offence and offender.

[4] Before imposing sentence, I must consider the constitutionality of the mandatory minimum sentence. The following questions must be answered:

a. Does s. 163.1(4) of the Criminal Code violate s. 12 of the Charter? This requires an assessment of the following issues:

i. What is a fit sentence for Mr. John?

ii. Is the mandatory minimum sentence grossly disproportionate for a fit sentence for Mr. John?

iii. Would the mandatory minimum sentence be grossly disproportionate for a reasonably foreseeable offender?

b. If gross disproportionality is found, can the mandatory minimum sentence be saved under s. 1 of the Charter?

c. What is the appropriate sentence for Mr. John?

Positions of the Parties

[5] The Crown’s position is that Mr. John should be sentenced to a period of twelve to fifteen months in custody, followed by three years of probation. In addition, the Crown seeks a variety of ancillary orders. The Crown submits that the mandatory minimum of six months is not a grossly disproportionate sentence for Mr. John and is well below the appropriate range of a fit sentence for him. Finally, the Crown says that a sentence of six months is within the range of appropriate penalties for any other reasonable hypothetical offender.

[6] It is Mr. John’s position that but for the mandatory minimum, which precludes the availability of a conditional sentence, a fit sentence for him would be a conditional sentence. Accordingly, the defence submits that the mandatory minimum is grossly disproportionate for this offender. In the alternative, the defence says that a fit sentence would be in the thirty day intermittent range. If I accept this range of sentence, the defence concedes that a six month mandatory minimum would not be grossly disproportionate for Mr. John. However, the defence makes the alternative argument that the mandatory minimum of six months is grossly disproportionate for the reasonably foreseeable offender. He argues that the sentence cannot be justified under s. 1.

Analysis

[7] I begin by recognizing, as the Supreme Court of Canada has, that by their nature, mandatory minimum sentences have the potential to depart from the principal of proportionality. Mandatory minimum sentences change the way sentencing usually operates in that they deprive the court of its ability to tailor sentence to the individual circumstances of the particular offence and offender.

[8] I am also mindful of the important comments of Chief Justice McLachlin in R. v. Lloyd, 2016 SCC 13, [2016] S.C.R. 130 at para. 3 that:

…mandatory minimum sentences for offences that can be committed in many ways and under many difference circumstances by a wide range of people are constitutionally vulnerable because they will almost inevitably catch situations where the prescribed mandatory minimum would require an unconstitutional sentence…

a) Does s. 163.1(4) of the Criminal Code Infringe s. 12 of the Charter?

[9] Section 12 of the Charter provides that everyone has the right not to be subjected to cruel and unusual punishment. The question raised in this case is whether s. 163.1(4) violates this guarantee. As the Supreme Court of Canada re-affirmed in R. v. Nur, 2015 SCC 15 at para. 39, there is a “high bar” for what constitutes cruel and unusual punishment. A sentence must be “grossly disproportionate to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender”.

[10] There are two steps to the analysis. First, the court must determine a fit sentence for Mr. John, having regard to the objectives and principles of sentencing in the Criminal Code. Having done that, the court must determine whether the statutorily prescribed mandatory minimum sentence requires the court to impose a sentence that is grossly disproportionate to the offence and its circumstances (Nur at para. 46; Lloyd at para 23). As I have indicated, this may occur if either the sentence to be imposed on Mr. John is grossly disproportionate to a fit and appropriate sentence for him, or because it is reasonably foreseeable that the mandatory minimum will impose a grossly disproportionate sentence on others.

i) What is the fit sentence for Mr. John?

[11] To determine what a fit sentence is for Mr. John, consideration must be given to the relevant statutory principles, the principles set out in the jurisprudence, and the particular circumstances of the offence and offender, including any aggravating and mitigating circumstances.

The statutory principles

[12] There are a number of provisions of the Criminal Code that are relevant to the imposition of sentence in this case.

[13] Section 718 of the Criminal Code sets out the purposes of sentencing:

718 The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[14] Section 718.01 provides the following objectives of sentencing for offences that involve the abuse of young person:

718.01 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.

[15] Section 718.1 provides the fundamental principle of proportionality in sentencing:

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[16] Section 718.2 deals with other sentencing principles and includes, in part:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

shall be deemed to be aggravating circumstances…

The jurisprudence

[17] The jurisprudence is replete with statements about the harms caused by child pornography. More than fifteen years ago in R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, McLachlin J., as she then was, set out the harms caused by the possession of child pornography at paras. 86-94. She accepted that the evidence establishes several connections between the possession of child pornography and harm to children: (1) child pornography promotes cognitive distortions; (2) it fuels fantasies that incite offenders to offend; (3) it is used for grooming and seducing victims; and (4) children are abused in the production of child pornography involving real children. She then concluded:

94. Possession of child pornography increases the risk of child abuse. It introduces risk, moreover, that cannot be entirely targeted by laws prohibiting the manufacture, publication and distribution of child pornography. Laws against publication and distribution of child pornography cannot catch the private viewing of child pornography, yet private viewing may induce attitudes and arousals that increase the risk of offence. Nor do such laws catch the use of pornography to groom and seduce children. Only by extending the law to private possession can these harms be squarely attacked…

[18] More recently, Fish J. underscored the serious nature of offences involving child pornography in R. v. Morelli, 2010 SCC 8, [2010] S.C.R. 253 at para. 8 when he stated:

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 feelings of disapprobation, if not revulsion.

[19] Over many years, both the Court of Appeal for Ontario and judges of the Ontario Superior Court of Justice have emphasized the gravity of the offence of possession of child pornography. The jurisprudence makes clear that the primary principles in sentencing those convicted of possession of child pornography are denunciation and general deterrence: R v. E.O., 2003 CanLII 2017 (ON CA), [2003] O.J. No, 563 at para. 7 (C.A.); R. v. Stroempl, 1995 CanLII 2283 (ON CA), [1995] O.J. No. 2772 (C.A.) at para. 9; R. v. D.G.F., 2010 ONCA 27 at paras. 21-22; R. v. Nisbet, 2011 ONCA 26 at para. 3; R. v. Kwok, 2007 CanLII 2942 (ON SC), [2007] O.J. No. 457; R. v. Dumais 2011 ONSC 276 at para. 16.

[20] It is the position of Mr. John that prior to Parliament’s decision to foreclose the availability of conditional sentences through the creation of mandatory minimum sentences, the Court of Appeal for Ontario determined that the goals of sentencing could be accomplished by the imposition of a conditional sentence for this offence. Mr. Sabsay relies on three judgments from the Court of Appeal in which conditional sentences were imposed or upheld.

[21] In R. v. Cohen, 2001 CanLII 3862 (ON CA), [2001] O.J. No. 1606 (C.A.), the Court of Appeal allowed a forty-four year old offender’s sentence appeal from a fourteen month sentence following his conviction after for several counts of distribution and possession of child pornography. The Court concluded that the goals of denunciation and deterrence would be met through a conditional sentence. In reaching that view, the Court observed that the mitigating circumstances included that the offender was employed, had a supportive family, was not a pedophile and that the charges had led to his family being harassed in the community to such an extent that his family needed to move to another community and he had to change jobs twice. The effect of the proceedings on his family were described as “devastating”.

[22] In R. v. Weber, 2003 CanLII 28579 (ON CA), [2003] O.J. 3306, (C.A.), the Court of Appeal considered a Crown appeal from a trial judge’s decision to impose a fourteen month conditional sentence on an offender who pleaded guilty to three counts of distribution of child pornography and to one count of possession of child pornography. In declining to interfere with the exercise of the trial judge’s discretion, and after commenting on the ”substantial deference” owed to sentencing judges, the Court of Appeal found that the trial judge made no error in equating the situation before him with that in Cohen. In particular, it was noted that the respondent had lost his employment and a second job because of the charges, and that he was estranged from his family and was suicidal.

[23] Finally, in R. v. Schan, 2002 CanLII 41613 (ON CA), [2002] O.J. No. 600 (C.A.) the Court of Appeal considered an offender’s sentence appeal for his conviction for possession of child pornography. The appellant had downloaded images from the internet for his own use and entered a guilty plea. His marriage had ended as had his relationship with his children. He was depressed and had attempted suicide. The Court of Appeal varied the sentence to one of eighteen months, conditional.

[24] In response to these cases, the Crown points out, in my view correctly, that since the Court of Appeal approved of conditional sentences for possession of child pornography in these cases, there have been a number of significant developments.

[25] First, in 2005, Parliament enacted s. 718.01 of the Criminal Code, which, as set out above, identifies that denunciation and deterrence must be primary considerations if the offence involved abuse of a person under eighteen years old. In other words, whereas rehabilitation might previously have assumed greater weight, Parliament has made clear that it is secondary when there is abuse of a minor involved. Possession of child pornography is such an offence.

[26] Second, in 2007, Parliament enacted s. 718.2(a)(ii.1) of the Criminal Code. This provision requires a court to increase a sentence if it finds that in committing the offence, the offender abused a person under the age of eighteen years. Inherent in the possession of child pornography is the abuse of children.

[27] I think that these two changes made by Parliament signal an enhanced appreciation of the harm caused by offences such as the possession of child pornography and signal a view that there ought to be more significant sentences for this offence.

[28] Third, the Crown suggests that over time, including the time since approval of conditional sentences for possession of child pornography, courts have been slowly learning about the extent and effects of child pornography on the internet. This position is supported by the comments made by Feldman J.A. in the Court of Appeal decision R. v. D.G.F., 2010 ONCA 27, in which she observed at paras. 21-22:

[21] Over the last two decades, courts have been on a learning curve to understand both the extent and the effects of the creation and dissemination of child pornography over the internet and to address the problem appropriately: see, for example, R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; Kwok. A number of relatively lenient sentences had been imposed in cases where child pornography was downloaded or distributed, there was no sexual abuse or making of child pornography involved, and there were many mitigating circumstances: see for example, R. v. Schan (2002), 2002 CanLII 41613 (ON CA), 155 O.A.C. 273; R. v. Weber (2003), 2003 CanLII 28579 (ON CA), 175 O.A.C. 138; R. v. Kim (2004), 2004 CanLII 32118 (ON CA), 181 O.A.C. 88. However, in cases that involved making child pornography and child sexual abuse, significant custodial sentences were imposed: see, for example, R. v. Jewell; R. v. Gramlick (1995), 1995 CanLII 1897 (ON CA), 100 C.C.C. (3d) 270 (O.C.A.); R. v. R.W., [2001] O.J. No. 2810.

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

[29] I understand this passage to be an acknowledgement by the Court of Appeal that the prevalence of the production and distribution of child pornography is growing, with increasingly sophisticated technological advances, and that there is a pressing need to recognize that possession of child pornography continues to victimize innocent children. Moreover, I observe that the Court expressly described the sentences it affirmed or imposed in such earlier cases as Schan, Weber and R. v. Kim, 2004 CanLII 32118 (ON CA) as “relatively lenient”. Without expressly saying it, I see the Court as recognizing that sentences for possession of child pornography should be higher in order to give effect to the appropriate principles of sentence. This view is reflected in many of the more recent cases in which they have considered the issue of sentence for those convicted of possession of child pornography, as set out below.

[30] I note that similar comments to those made by Feldman J.A. were made by the Court of Appeal in R. v. Nisbet, 2011 ONCA 26 at para. 1:

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

[31] I agree with the position advanced by the Crown. In my view, even if conditional sentences were available today, I do not think that courts would exercise their discretion to impose them, given the changed technological climate of 2017 where the prevalence of child pornography is growing, the manners of sharing it are advancing, and the recognition of the harms that it causes to children are better understood than they were fifteen years ago.

[32] I am fortified in this view when I consider the sentences imposed in other cases. Fairly consistently, sentencing courts have determined that effect can only be given to the appropriate sentencing principles through the imposition of sentences well over the mandatory minimums required by the Code. For instance:

• In R. v. Carlos, 2015 ONSC 7757, Donohue J. imposed a sentence of 3 years for possession of child pornography, to run concurrent to a sentence of three years for making child pornography available. The offender was a thirty-eight year old first offender with a steady work history who was likely to be deported as a result of his conviction. His collection of videos was not large, consisting of 12 videos of complete files in the shared folder and 38 videos of incomplete files in the shared folder. He was at low risk of re-offending. While the mandatory minimum sentence was six months, the sentencing judge determined that a much more significant sentence was required. The Court of Appeal upheld the sentence finding it within the range: 2016 ONCA 920 at paras. 8-10;

• In R. v. Tweedle, 2016 ONCA 983, the Court of Appeal recently upheld a sentence of twenty months for an offender convicted of possession of child pornography and making child pornography available. A search warrant revealed that the offender had 29 videos and 431 images of child pornography. The Court held:

[21] …Whether the appellant’s collection consisted of unique or duplicate images, it was substantial and contained horrific images of abuse of children of all ages. Further, while there was no specific evidence as to the number of occasions on which the appellant shared child pornography files, the conclusion that he had distributed child pornography on multiple occasions to multiple users was apparent from his participation in a file sharing program, with no evidence that he had blocked the sharing of files containing child pornography.

[22] The mandatory minimum sentence for this offence was one year imprisonment. The reformatory sentence here of 20 months was well within the appropriate range, took into account the relevant mitigating and aggravating factors, and was not demonstrably unfit.

• In R. v. Saliba, 2013 ONCA 660, the Court of Appeal upheld the trial judge’s imposition of a two and a half year sentence for possession of child pornography. In his oral reasons, Gray J. noted that the offender had pleaded guilty to one count of possession of child pornography for a collection that included about 90 movies and 30 pictures depicting sexual activity involving children. The trial judge characterized the size of the collection as not insignificant and the nature of the collection as abhorrent, revolting and disgusting: R. v. Saliba, (16 August 2012), Milton, 140/11.

• In R. v. Dansereau, 2014 ONCJ 250, Bishop J. sentenced an offender who pleaded guilty to possession of child pornography to fifteen months jail. The mandatory minimum applicable was forty-five days. The offender possessed 535 images and 31 movies. He was a fifty-five year old first offender. While he had received counselling, he still failed to appreciate the severity of the offence and remained a risk.

• In R. v. Bock, 2010 ONSC 3117, Henderson J. imposed a sentence of one year, concurrent, for the possession of child pornography. The offence carried a mandatory minimum sentence of forty-five days. The accused was a sixty-seven year old first offender who pleaded guilty. He was retired after a lengthy working career and had a supportive family.

• In Kwok, the offender was convicted of possession of child pornography after pleading guilty. He was a twenty-nine year old first offender. He had a collection of 2000 photographs and 60 videos. He was sentenced to one year jail.

• In R. v. Dumais, 2011 ONSC 276, the offender pleaded guilty to possession of child pornography. His collection had 170 images and 44 movies of child pornography depicting sexual acts with young female bodies. He was a 36 year old with no record and with a respected career as a teacher. He had suffered serious personal repercussions including losing his job and being subjected to media scrutiny. He had received treatment and there was a medical opinion that he was at low risk of re-offending. While the mandatory minimum was forty-five days, the sentencing judge declined to impose such a low sentence and concluded that the minimum sentence that could give effect to denounce and deter the crime was nine months.

• Very recently, in R. v. Machulec, (16 November 2016), Windsor, 14/3150, Munroe J. imposed a sentence of eight months for an offender convicted on one count of possession of child pornography. The mandatory minimum sentence was six months. The offender had 7,694 images of child pornography on his computer. They were not live persons, but rather were high quality animation. The offender was sixty-five years old with no criminal record. He had worked his entire life and been a good community member. He did not know of the illegality of his actions. By the time of sentencing, he still lacked insight into the severity of his conduct.

• In R. v. Nisbet, [2010] O.J. No. 6258 (S.C.J.); aff’d 2011 ONCA 26, the accused pleaded guilty to one count of possession of child pornography. His collection included 28 images and 43 videos. The videos showed children aged between four and fourteen years of age engaged in sexual acts. The trial judge declined to impose the mandatory minimum sentence of forty-five days and, instead, imposed a sentence of six months on an offender who she found had strong prospects for rehabilitation. This was affirmed by the Court of Appeal.

[33] It is my conclusion that in order to recognize and give effect to the appropriate sentencing principles for possession of child pornography, the appropriate sentence spans a considerable range, from around six or eight months at the bottom end of the range upwards to about three years. Determining where within that range is appropriate depends on the particular aggravating and mitigating circumstances in the case.

Circumstances of the offence

[34] Given the defence decision not to contest Mr. John’s guilt, the facts of the offences must be derived from the evidence adduced at the preliminary inquiry, which was filed on the Charter motion.

[35] Halton police executed a search warrant at Mr. John’s home and seized two computers. They were subsequently analysed. The evidence of Detective Constable Spence was that he identified 89 videos that were child pornography and 50 unique images that were child pornography. The images depicted girls between the ages of four and ten being penetrated vaginally or anally by an adult penis or sex toy of some sort. There were also images involving oral sex. The officer indicated that there were children as young as four, and maybe as young as two or three.

Circumstances of the offender

[36] Mr. John is a thirty-one year old first offender.

Family and work history

[37] The Pre-Sentence Report (“PSR”) sets out some of Mr. John’s family and work background. He was born in Toronto and has two sisters. He described his family as dysfunctional and said that his parents did not relate well to each other. His parents separated when he was in elementary school and he has maintained a close positive relationship with his mother, whom he describes as supportive of him and actively involved in his life.

[38] Mr. John completed high school, but told the author of the PSR that he was bullied and had few friends. He reports having been diagnosed with Attention Deficit Disorder. His mother confirms this diagnosis.

[39] Mr. John appears to have had a number of jobs, lasting from a couple of months to a number of years, since 2004. He has also had periods of unemployment. More recently, between 2012 and 2013, he was unemployed but occasionally assisted his father with his business. Mr. John had back pain, which he says contributes to his depression, and had difficulty obtaining work because of mobility issues.

[40] The PSR indicates that in 2014, Mr. John worked as a shipper/receiver for six months and was then unemployed and supported by his father.

[41] Mr. John was arrested on August 7, 2014 and charged. He was released on bail on August 7, 2014. His bail included a requirement that he reside with his surety at home and included no house arrest or curfew. He was permitted to seek and maintain employment. He was restricted on the use that he could make of computers or other devices that could access the internet.

[42] He testified that he obtained a job at Amazon in September 2014, but was let go in December 2014 because of a business slowdown at Amazon. He did not obtain another job until December 2015. This new job was with a company that manufactured medical devices. He remained in that position for eight months, and testified that he was terminated because he had to take too many days off to deal with court matters.

[43] Mr. John advised the author of the PSR that in October 2016, he was re-hired at his former place of employment and is now working part time hours (thirty-two hours a week).

Depression

[44] Mr. John reported to the author of the PSR that he began to experience depression in 2011. He became withdrawn and engaged in self-isolation and anti-social behaviour. He had low self-esteem, no friends, and felt angry and negative. His employment was unstable and so he became financially reliant on his father. He admitted to excessive thoughts of a sexual nature, an addiction to pornography and issues with sexual self-regulation. He spent up to five hours a day on a computer viewing pornographic images and movies.

[45] Mr. John advised the author of the PSR that he is under the care of his family physician and taking medication for depression. He is involved in weekly therapy, which he believes gives him insight into his behaviour.

[46] Mr. John was referred to Dr. Gojer and testified that he first met with him in January 2015. There is no evidence from Dr. Goger before me.

[47] Dr. Goger referred him to Dr. Lisa M. Doupe, a General Practice Physician specializing in forensic psychotherapy and the treatment of high risk behaviours. Dr. Doupe has provided two letters.

[48] In her letter dated October 26, 2015, Dr. Doupe indicates that Mr. John was referred to the Prevention Wellness Rehabilitation Health Consultants (“PWR Health Consultants”) on August 23, 2015. Between August 23 and October 26, 2015, he attended eight appointments: four intake and assessment sessions with someone else, and four individual therapy sessions with Dr. Doupe.

[49] Dr. Doupe indicated that Mr. John’s stringent bail conditions were a barrier to progress as it was difficult for him to attend individual and group sessions. Her letter appears to have been written for the purpose of assisting with a bail variation application in the fall of 2015.

[50] Mr. John testified that he felt that he was making progress with Dr. Doupe in this period and that her treatment was to try to ensure that he would never re-offend with child pornography. However, beyond the four initial sessions with Dr. Doupe, there were no further treatment sessions with her after November 23, 2015 as she was on sabbatical. Mr. John testified that rather than seek treatment from another person while she was unavailable for a year, he stopped treatment.

[51] There is a subsequent letter from Dr. Doupe dated November 3, 2016. Dr. Doupe indicates that Mr. John was diagnosed with ADD in 1992, and with major depression and anxiety in 2014. Dr. Doupe states that Mr. John had been inadequately treated and that he had been on the wrong medication. She said that he lacked the tools and skills to manage moods, thoughts, behaviours and physical reactions.

[52] Dr. Doupe’s latest letter explains that she is a general treating physician, specializing in psychotherapy and the treatment of high risk behaviours, and is aware of community based treatments available for Mr. John’s behaviours. She describes the purpose of her letter as being to outline opportunities for community based treatments for Mr. John’s offending behaviours.

[53] Dr. Doupe indicates that PWR Health Consultants could provide a program for Mr. John that would involve individual therapy twice a week, group therapy once a week and reading homework. There would be an expectation that a representative of the criminal justice system would monitor his progress. Dr. Doupe suggests that Mr. John would benefit from an intensive forensic psychotherapy program such as the one offered by PWR Health Consultants. She further comments that “incarceration would lead to a regression of his psychological condition”.

[54] The PSR indicates that Mr. John resumed treatment with Dr. Doupe on October 10, 2016 and is presently in a program called “Moving On”. To the author of the PSR, Dr. Doupe described Mr. John as a responsible person who is honest and amenable to treatment.

Bail conditions

[55] Mr. John was arrested in June 2015 and charged with failing to comply with his recognizance. On June 8, 2015, he was placed on a more restrictive bail that included house arrest, although there was an exception for him to attend at work, as long as accompanied by his father.

[56] On November 10, 2015, the house arrest condition was varied, with the consent of the Crown, such that Mr. John was permitted to leave his home for employment purposes and to attend for treatment with Dr. Doupe.

[57] In August 2016, Mr, John was acquitted of the fail to comply charge. His bail was varied to remove the house arrest condition on September 29, 2016. I conclude that the house arrest condition lasted about fifteen months (from June 2015 to September 2016).

[58] Mr. John testified that while he was on house arrest, he felt isolated, trapped, depressed, scared and had feelings of hopelessness.

Aggravating and mitigating circumstances

[59] In assessing the aggravating and mitigating factors to be considered, I am assisted by the list of such factors set out by Molloy J. in Kwok at para 7.

[60] I accept the defence position that there is an absence of some of the aggravating factors often seen in cases of possession of child pornography. For instance, Mr. John has no criminal records for similar or related offences, there is no evidence that his possession was for production or distribution and there is no evidence that he purchased the child pornography.

[61] At the same time, the following aggravating features of the offence are present:

• The size of the collection. This was not the possession of a single image or video. Mr. John had possession of 89 videos and 50 unique images of child pornography;

• The nature of the collection. The children depicted were young – perhaps as young as two years old - and were mostly in the four to ten year old range. Mr. John’s search terms suggest that he was seeking out images of very young children;

• The nature of the collection was also aggravated by the fact that the children were depicted engaged in invasive and inherently violent activity. The images depicted vaginal and anal penetration of children by an adult penis and objects as well as fellatio;

• The statutorily aggravating factor set out in s. 718.2(a.ii) is present in that the offences involve abuse of children, albeit indirectly.

[62] The following circumstances are mitigating:

• Mr. John, who is 31 years old (and was 29 when arrested), has no criminal record;

• Mr. John has some insight into his behaviour and indicated that he recognizes the need for treatment and is willing to undergo treatment.

• There is some extent to which Mr. John has already suffered for his crime. He was on a house arrest bail for 15 months of his two and a half years awaiting trial.

[63] In my view, Mr. John’s treatment to date is not a mitigating circumstance deserving of much weight. His treatment has been intermittent and limited. While it is a positive factor both that he is amenable to treatment and that Mr. John believes that the treatment is helping him, there is no evidence before me that it will decrease the likelihood of him re-offending. Indeed, there is nothing before me that speaks to the issue of likelihood to re-offend. The evidence as to Mr. John’s insight into his offence is also quite limited. I find that this case is very different from that described at para. 40 of the Kwok decision and I cannot conclude that Mr. John’s sentence should be significantly reduced to account for the fact that he has sought and received some treatment.

Credit for time spent on house arrest

[64] Mr. Sabsay submits that Mr. John should be credited for the fifteen months he spent on house arrest. While his initial arrest on these charges led to him being released without house arrest, he was subsequently arrested for failing to comply in June 2015 and released on bail with a house arrest condition. The bail permitted him to travel to work and for treatment but he had to be accompanied by his father. The house arrest was lifted on September 29, 2016 following his acquittal on the breach charge.

[65] The law is clear that stringent bail conditions may be taken into account and have a mitigating effect on sentencing. However, if credit is to be given, it should not be the same credit as would be given for time spent in pre-sentence custody: R. v. Ijam 2007 ONCA 597 at paras. 32-33; R. v. Dragos, 2012 ONCA 538 at paras. 70-86.

[66] I understood the defence position to be that if I determined that a conditional sentence was appropriate, credit should be given for over a year and that a conditional sentence of six months should be imposed. If I find that a jail sentence is appropriate, the defence says that Mr. John should be credited for thirty to sixty days for the onerous bail conditions.

[67] The Crown submits that at most, I should reduce the sentence by a couple of months.

[68] It is noteworthy here that the house arrest bail did permit Mr. John to travel to work with his father. He was also permitted him to seek treatment. He testified that he felt isolated and depressed. I accept this, although it is far from clear to me whether the isolation and depression flowed from the house arrest or from the fact that he was not able to use the internet.

[69] Given my conclusion that a conditional sentence is not a fit sentence, and bearing all of the circumstances relating to the house arrest bail in mind, I will credit Mr. John for sixty days for the fifteen months of house arrest bail.

Conclusion

[70] Having considered the statutory parameters, the jurisprudence, the circumstances of the offence and offender, the aggravating and mitigating factors, it is my view that ten months incarceration is the appropriate sentence for Mr. John. This is before the credit for the house arrest bail.

ii) Is the mandatory minimum sentence grossly disproportionate for a fit sentence for Mr. John?

[71] Having concluded that ten months is the appropriate sentence for Mr. John, it follows that the mandatory minimum sentence, which is six months, is not grossly disproportionate for Mr. John.

iii) Would the mandatory minimum sentence be grossly disproportionate for a reasonably foreseeable offender?

[72] Having determined that the mandatory minimum sentence provided for the Criminal Code would not result in the imposition of a grossly disproportionate sentence for Mr. John, the analysis requires consideration of whether the mandatory minimum sentence would impose a grossly disproportionate sentence on another person in a reasonably foreseeable situation. It is important to review what is meant by this branch of the test.

[73] A reasonable hypothetical or a reasonably foreseen situation cannot be far-fetched or only marginally imaginable. It is not a license to invalidate statutes on the basis of remote or extreme examples. The exercise is to be grounded in experience and common sense. Laws are not to be set aside on the basis of speculation: Nur at paras. 62, 76.

[74] The defence posits two situations in which it is argued that the mandatory minimum sentence would be grossly disproportionate for the reasonably foreseeable offender.

[75] In the first example, the defence reminds me that many films and plays have been written about the impulses behind and effects of pedophilia, and the use of child pornography. It is submitted that actors must conduct research in this area. The defence asks the court to consider a situation in which, in the course of professional employment to depict characters who struggle against pedophiliac impulses, an individual downloads and watches a single file that constitutes child pornography. The argument is made that the imposition of a six month sentence for this conduct would shock the conscience of Canadians.

[76] I make two comments about this hypothetical. First, I note that s. 163.1(6) of the Criminal Code provides a defence to those who have a legitimate purpose related to the administration of justice, or to science, medicine, education or art if they do not pose an undue risk of harm to those under the age of 18. As the Supreme Court of Canada explained in R. v. Katibuk, 2011 SCC 48 at paras. 47-52, this inquiry requires consideration of whether the accused, from a subjective standpoint, had a genuine good faith reason for possessing the child pornography for one of the listed grounds. In addition, the court must determine whether there is an objectively verifiable connection between the possession and the accused’s stated purpose. In my view, the example provided by the defence might well be one in which a trier of fact would conclude that there was both an objective connection between the accused’s possession and his purpose, and an objective relationship between his purpose and the protected activities.

[77] Second, as the Crown points out, there are many ways to research pedophilia and the effects of child pornography without perpetuating the harms to children associated with it. Those trying to study or portray sexual assault offenders do not need to commit the offence. Similarly, I do not think those who study or portray possessors of child pornography need to view child pornography in order to write about it or portray those who do view it. If the possession is not for a legitimate purpose related to education or art, in my view there is no basis to say that a six month sentence would be grossly disproportionate for an offender in this situation.

[78] The second hypothetical posited by the defence is that of a psychology or sociology student or researcher who must understand the nature of impulses driving unhealthy behaviours and addictions so as to devise appropriate treatments. The submission is made that such a student or researcher might access a single file in order to gain a sense of what satisfaction or escape it provides. The argument is made that a six month sentence would shock the conscience of Canadians.

[79] In my view, this example does not assist the defence. Again, this is a case on which a trier of fact might well conclude that there is a legitimate defence in the manner set out in Katibak. In my view, if the defence were not available, a sentence of six months for a researcher or student who possesses child pornography for some purpose other than a valid medical or scientific purpose is not grossly disproportionate, as such a sentence is needed to give effect to the principles of sentencing.

[80] Mr. Sabsay also posited a situation in which an individual received an email with an attachment of child pornography. He suggested that if the individual deleted the item but it remained on the computer, the individual could be found guilty. I disagree. The offence requires as an essential element that the person intend to have the child pornography in his or her possession. There needs to be knowledge and control. If a trier of fact were to accept evidence that the person intended to delete the image and believed it had been deleted, then all of the elements of the offence of possession would not have been made out.

[81] If, on the other hand, the person did not intend to delete the image, in my view the offence would be made out. In these circumstances, I accept that there is nothing grossly disproportionate about a six month sentence. The sentence must stifle the curiosity of offenders who not only look at, but then decide to keep these sorts of images. I do not think a six month sentence in such a situation would be “grossly disproportionate”.

[82] The defence also relies on the reasonable hypothetical circumstances discussed in R. v. LeCourtois, 2016 ONSC 190. I note that in LeCourtois, Kent J. upheld the mandatory minimum of forty-five days, which applies when the Crown proceeds summarily. While it is not clear from this ruling what sentence was imposed on the offender, I observe that the positions of counsel were that the sentence should be between nine and twelve months. However, in the context of his analysis Charter, Kent J. considered two hypotheticals.

[83] The first hypothetical considered in LeCourtois is one in which a single item of the least depraved child pornography, such as encompassing an imaginary human being reflected in a drawing from the imagination, cartoon and computer-generated composite, is found inadvertently by the offender, accessed for a brief period and then destroyed.

[84] In the second example, one item of the least depraved child pornography is voluntarily created by the seventeen year old subject of the pornography, who then sends it to the offender, with whom she, the subject, has a friendship. The child pornography is accessed and possessed by the offender for a brief period and then destroyed.

[85] Kent J. concluded that a brief period of incarceration is not outside the appropriate range for either offender in the examples offered by counsel. He held that a member of the public would not likely be offended by the offender in either reasonable hypothetical being sentenced to at least forty-five days in order to accomplish the objectives of general deterrence and denunciation.

[86] I am not persuaded that these examples are reasonable hypothicals. In both examples, the offender is said to have deleted the image. It seems to me that deleting the image raises a doubt about whether there is an intent to possess the image. I thus reject these examples as reasonable.

[87] Were the hypotheticals to be varied so that the offenders did not delete the images, it would be my view that six months would not meet the high standard of being a grossly disproportionate sentence, given the objectives of sentencing and jurisprudence.

[88] I observe that I am not the first judge to consider whether the six month mandatory minimum sentence for child pornography violates s. 12 of the Charter. I was provided with the Machulec decision of Munroe J. In addition, I have reviewed the decision of R. v. Watt, 2016 ABPC 57. In each case, the courts came to the view that the six month mandatory minimum sentence did not violate s. 12 of the Charter. It appears that the Watt decision is under appeal to the Alberta Court of Appeal as the Court considered and dismissed an application for bail pending appeal: 2016 ABCA 139.

[89] I have reviewed each decision with care and reflected on the reasonable hypotheticals that were posited by counsel in those cases.

[90] In Machulec, Munroe J. considered a first hypothetical situation in which the hypothetical offender was an older, first offender, non-pedophile, who had no knowledge that it is illegal to possess cartoon child pornography, and had in his possession a small number of images of the TV cartoon character Maggie Simpson. The images qualified as child pornography because they displayed her vagina area in a sexual way. Munroe J. rejected the reasonableness of this hypothetical. I agree. I note that the Supreme Court of Canada cautioned that reasonable hypotheticals should not be constructed using personal features that are the most innocent or sympathetic imaginable: Nur at paras. 74-76. This example falls afoul of that guidance.

[91] The second hypothetical Munroe J. considered was the same as the second hypothetical considered by Kent J. in LeCourtois. Monroe J. said that setting aside the proof problems inherent in the example, he accepted it as reasonable. He concluded that the six month mandatory minimum is not grossly disproportionate for this reasonably foreseeable offender. He went on to state that he did not find the six months excessive, given the nature of the crime and the harm to children it seeks to reduce.

[92] Like Munroe J., it is my view that the statute’s mandatory minimum sentence of six months cannot be said to be grossly disproportionate in these circumstances. Accordingly, I find no s. 12 violation.

b) If Gross Disproportionality is Found, Can the Mandatory Minimum Sentence be Saved under s. 1 of the Charter?

[93] Given my conclusion that a six month sentence is not grossly disproportionate for either Mr. John or for the reasonably foreseeable offender, I need not address this issue.

c) What is the Appropriate Sentence for Mr. John?

[94] Mr. John will be sentenced to a term of ten months imprisonment less sixty days credit for his house arrest bail.

[95] The custody will be followed by a term of probation for two years. In addition to the statutory conditions set out in s. 732.1(2) (a)(a.1), (b) and (c), the terms will be that he:

• Report to a probation officer as required;

• Attend at or continue for any assessment, counselling and/or treatment for sexual offending or any other counselling deemed necessary, as directed by his probation officer, and be amenable to such programming as recommended by his probation officer;

• Sign any release as required or directed to allow his probation officer to monitor compliance with treatment or counselling;

• Not associate or communicate with others convicted of sexual offences, except and only during treatment or counselling;

• Not possess or access or make available any child pornography/erotica and not possess or access any image of children who are or who are depicted to be or appear to be under the age of 18 who are clothed or naked and/or portrayed in a sexual manner;

• Not possess or use any computer, cell phone or other device that has internet access except:

o As required for employment purposes, including seeking and maintaining employment;

o As required for purposes of attending a recognized educational program;

o These exceptions must be with the prior written permission of his probation officer upon providing any necessary supporting documentation regarding the above purposes

• To permit meaningful monitoring of the offender’s compliance with the terms and conditions of this order, the offender shall:

o Permit access to his residence by his probation officer and/or by a police officer between the hours of 8 am and 8 pm, 7 days a week to allow random inspections of all of his electronic devices;

o Provide any encryption codes or password necessary to permit the random inspection of any electronic devices for the purpose of monitoring compliance with the provisions of this order.

[96] In addition, I make the following ancillary orders:

• Possession of child pornography is a primary designated offence for the purpose of the DNA provisions of the Criminal Code under s. 487.04(a)(i.8). Accordingly, an order will go authorizing the taking of a DNA sample. The defence concedes that this order is appropriate.

• A SOIRA order for 10 years under s. 490.012(1) and s. 490.013(2) of the Criminal Code. The defence concedes that this order is appropriate.

• An order under s. 161(a), (b) and (c) of the Criminal Code for 10 years. The order under s. 161 (c) shall prohibit contact with anyone under the age of 16 unless done under the supervision of either his father Ian John, his mother Angelica John, or his sister, Lauren John.

• A forfeiture order as requested by the Crown.

Woollcombe J.

Released: February 7, 2017