BARRIE COURT FILE NO.: CR-17-085-00AP DATE: 20190626

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – JOHN STRAPKO Appellant

Counsel: K. Hull, for the Respondent M. Eaton-Kent, for the Appellant

HEARD: March 11, 2019

DAWE J.

[1] In October 2016 the Appellant pleaded guilty to a single charge of accessing child pornography, on which the Crown had elected to proceed summarily. A conviction was entered and on January 19, 2017 the Appellant was sentenced to five months imprisonment, to be followed by three years probation. He has served the custodial portion of his sentence.

[2] The Appellant appeals his conviction and seeks to have his guilty plea set aside on the grounds that he received ineffective assistance from the lawyer who represented him in the proceedings, which he maintains resulted in a miscarriage of justice. Specifically, he alleges that his defence counsel fell below the standard of reasonable competence in two respects:

(i) By not watching a disclosure video of the Appellant’s police statement before advising the Appellant and taking his instructions about proceeding with the guilty plea; and

(ii) By erroneously telling the Appellant that the offence to which he was pleading guilty carried a mandatory minimum sentence of 90 days imprisonment, when the mandatory minimum sentence had actually been raised to six months imprisonment.

[3] The Appellant and defence counsel have both sworn affidavits and both were cross-examined out of court. Their affidavits and the cross-examination transcripts have been filed as fresh evidence on the appeal.

[4] For the reasons set out below, although I agree that defence counsel’s actions and advice were in some respects deficient, I am satisfied that these deficiencies had no lasting impact on the validity of the Appellant’s guilty plea or his ensuing conviction, and that there has accordingly been no miscarriage of justice requiring appellate intervention.

I. The Facts

A. The Appellant’s arrest and release on bail

[5] On April 26, 2016 the Barrie police executed a search warrant at the Appellant’s residence. The Appellant was arrested and charged with possession of child pornography. Before he was advised of his right to counsel or given a caution he made utterances to the arresting officers in which he admitted to having exclusive access to the computers found in his bedroom. Later, after speaking to duty counsel, he made a further inculpatory statement in which he acknowledged deliberately searching the internet for pornographic images of 15- and 16-year old girls, but denied intentionally downloading sexual images of younger children, some of which had been found on his computers.

[6] The Appellant spent 72 days in custody before eventually being released on bail, the terms of which required him to live with his surety in Elliot Lake. In August 2016 the Appellant retained a senior Barrie criminal defence lawyer (“defence counsel”) to represent him on the charge.

B. The resolution agreement and the Appellant’s decision to plead guilty

[7] In late September 2016 defence counsel conducted a pretrial meeting with the Crown during which they reached a tentative resolution agreement, under which the Crown would withdraw the possession of child pornography charge, on which the Crown had previously elected to proceed by indictment, and would arrange to have a new charge laid of accessing child pornography, on which the Crown would elect to proceed summarily and to which the Appellant would then plead guilty. The proposed resolution agreement did not include a joint position on sentence, but it was agreed that the Crown would seek no more than 12 months imprisonment and that the defence would request the mandatory minimum sentence.

[8] Crown and defence counsel both incorrectly believed that the mandatory minimum sentence on summary conviction for accessing child pornography was 90 days imprisonment, not realizing that on July 17, 2015 it had been raised to six months imprisonment by the Tougher Penalties for Child Predators Act (Bill C-26), which had also raised the mandatory minimum sentence when the Crown proceeds by indictment from six months to one year for both the offences of possession and accessing. Defence counsel explains that he was unaware of these legislative changes because he was using a 2016 edition of the Criminal Code that had not been updated to include these statutory amendments.

[9] On October 3, 2016 defence counsel met with the Appellant to explain the proposed resolution to him and to obtain instructions. Defence counsel had not watched the video statement of the Appellant’s police interview but had read the interviewing officer’s notes, and he reviewed these notes with the Appellant during the meeting. The officer’s notes indicated that during the interview the Appellant had admitted to using a peer-to-peer network to search for “teen porn”, and had stated further that he fantasized sexually about 15- and 16-year-old girls in order to “relive his teens”. Defence counsel states that during the meeting the Appellant confirmed both that he had said these things to the police, and that they were true. Defence counsel recalls further that the Appellant “seemed to have difficulty accepting that it is a crime to intentionally access pornography depicting 15 and 16 year old girls”, and that he had to explain to the Appellant that it would not be a defence for him not to have known that what he was doing was illegal.

[10] The Appellant states in his affidavit that his “understanding” at the time of the October 3, 2016 meeting was that defence counsel had already reviewed the actual video of the Appellant’s police statement. However, in cross-examination the Appellant confirmed that the police notes of what he had said in his statement were substantially correct. In particular, he acknowledged telling the police “something down that line” of admitting that he sexually fantasized about 15- and 16-year old girls and that he had used his computer to search for “teen porn”. The Appellant also acknowledged that defence counsel had told him that sexual images of 15- and 16-year old children were illegal and had explained to him that what he had told the police was incriminatory.

[11] After taking a few days to think things over, the Appellant telephoned defence counsel on October 5, 2016 to advise that he had decided to accept the plea deal. Defence counsel prepared a contemporaneous memo to file in which he noted that during their 40-minute telephone conversation they discussed:

…the Crown’s offer to proceed summarily such that the minimum sentence is 90 days and I would seek a sentence of 72 days × 1.5 equalling time served to be followed by probation…

As noted above, the mandatory minimum sentence for the offence was actually six months imprisonment.

C. The post-plea discovery of trial counsel’s error regarding the length of the mandatory minimum sentence

[12] On October 12, 2016 the Appellant appeared in the Ontario Court of Justice and entered a plea of guilty to one count of accessing child pornography, on which the Crown elected to proceed summarily. A pre-sentence report was ordered and the sentencing hearing was adjourned to December 12, 2016.

[13] It is undisputed that when the Appellant pleaded guilty he mistakenly believed that the mandatory minimum sentence was 90 days rather than six months imprisonment. However, he and defence counsel dispute exactly when and under what circumstances the true situation was first revealed to him.

1. Defence counsel’s evidence

[14] In early December 2016, defence counsel discovered that the mandatory minimum sentence of imprisonment on summary conviction for the offence of accessing child pornography had been raised from 90 days to six months. He sent an email to Crown counsel on December 6, 2016 stating:

Can you have a look at this file and give me a call? The statutory minimum is 6 months and [the Appellant] has spent 72 ‘unenhanced’ days in pre-trial custody. He has no record. He lost his job as a bus driver as a result of being charged with this offence. He’s had to move in with his sister/surety up in Elliot Lake.

I think you and I may be able to come to a joint submission in this case.

Defence counsel explained that he did not contact the Appellant to disclose his error about the length of the mandatory minimum sentence because he hoped Crown counsel would now agree to a joint submission for six months imprisonment less time served, and that this would allow him to present his mistake to the Appellant as a “good news, bad news situation”. However, Crown counsel did not reply, and defence counsel never called the Appellant.

[15] On December 12, 2016 the Appellant returned to Barrie for his scheduled court appearance. According to defence counsel, he and the Appellant met before court and discussed the situation, at which time defence counsel explained that he had previously given the Appellant incorrect information about the length of the applicable mandatory minimum sentence. Defence counsel maintains that he told the Appellant that the error would “almost certainly” enable the Appellant to have his guilty plea struck, but that this would put the Appellant back in the situation he had been in previously, with the Crown proceeding by indictment on the possession charge. He explained to the Appellant that in his opinion the Appellant:

…would be found guilty [and] wouldn’t get the benefit of having accepted responsibility, entering an early plea, expressing remorse and … wouldn’t get the benefit of even this higher summary conviction minimum sentence.

According to defence counsel, the Appellant “had no difficulty understanding that” and “seemed quite resigned to the fact that this was his only realistic option”.

[16] The sentencing hearing proceeded as scheduled that day. The Crown requested a sentence of 12 months imprisonment before credit for pre-sentence custody. During his submissions Crown counsel initially stated, incorrectly, that the mandatory minimum sentence was 90 days imprisonment, but later during the Crown’s submissions there was a colloquy between the court and both counsel during which everyone agreed that the mandatory minimum sentence had actually been raised to six months imprisonment. Defence counsel proceeded to request a sentence of six months imprisonment, less pre-sentence custody credit.

[17] At the conclusion of the defence submissions the trial judge asked the Appellant if there was anything he wished to say. The Appellant replied by complaining that his bail restrictions on accessing the internet were interfering with his ability to find work. He did not raise any concerns about the length of the mandatory minimum sentence.

2. The Appellant’s evidence

[18] For his part, the Appellant denies having any discussion with defence counsel about the six month mandatory minimum sentence before the sentencing hearing, stating in his affidavit that it was only during defence counsel’s sentencing submissions that he learned “for the first time, that the mandatory minimum had been raised from 90 days to 6 months”. The Appellant states further in his affidavit that:

At the conclusion of sentencing submissions I was still under the impression that I would likely be sentenced to time served based on the original plea deal with the Crown.

In cross-examination, he acknowledged that he had known “that it looked like [he] was going to be spending more time in jail”, but said he was not sure of this because he believed defence counsel had “asked to waive the minimum”.

D. Subsequent events

[19] After sentencing submissions were completed the Appellant’s case was adjourned to Thursday January 19, 2017. In mid-January, 2017, the Appellant’s surety sent defence counsel several emails expressing her annoyance at having the Appellant still living with her. In one of these emails, sent on January 16, 2017 she stated:

[The Appellant] is under the misconception he is getting off on time served. My understanding was either 6 months less time served or 12 months less time served.

She concluded this email by saying that she wanted the Appellant out of her house before Friday (i.e., before January 20, 2017). Defence counsel sent a reply explaining that if the Appellant attended court on Thursday, January 19 he would be sentenced that day and her obligations as surety would be at an end.

[20] The Appellant states in his affidavit that:

Shortly before I was sentenced I had a telephone conversation with [defence counsel] where I asked whether I was going to jail? I was informed that I was. I asked for how long? [Defence counsel] said he did not know. I was not provided [with] any further advice as to my rights or clarification.

Defence counsel had no specific recollection of this telephone conversation but acknowledged:

[W]e may very well have [had] the same conversation again where I again told him, “John, you’re yeah, you’re going to jail”. Like you know, that might be true. He may have, he may not have liked what he heard the first three times and may have needed to hear it again.

[21] The Appellant was sentenced on January 19, 2017. The trial judge determined that a fit sentence would be nine months imprisonment, which he reduced to five months imprisonment going forward after giving the Appellant 108 days credit for his 72 days in pre-sentence custody and additional credit for the almost eight months he had spent on bail.

II. Analysis

A. General principles

[22] In R. v. Archer, 2005 ONCA 871, Doherty J.A. explained (at paras. 119-20):

An appellant seeking to quash a conviction on the basis of ineffective assistance of counsel must demonstrate three things. First, where the claim is based on contested facts, the appellant must establish the material facts on the balance of probabilities. Second, the appellant must demonstrate that counsel’s acts or omissions amounted to incompetence. Incompetence is measured against a reasonableness standard.

Third, the Appellant must demonstrate that counsel’s ineffective representation caused a miscarriage of justice. A miscarriage of justice occurs if the appellate court is satisfied that counsel’s ineffective representation undermined the appearance of the fairness of the trial, or the reliability of the verdict. A verdict is rendered unreliable where the appellant demonstrates that had counsel performed in a competent fashion, there is a reasonable possibility that the verdict could have been different…

In R. v. G.D.B., 2000 SCC 22 at para. 29, Major J. noted that in appeals where incompetence of counsel is raised and “it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance part of the analysis”. He explained (at para. 29):

The object of an ineffectiveness claim is not to grade counsel’s performance or professional conduct. The latter is left to the profession’s self-governing body. If it is appropriate to dispose of an ineffectiveness claim on the ground of no prejudice having occurred, that is the course to follow.

[23] It is also well-settled that a guilty plea will only be valid if it is fully informed. As Doherty J.A. noted in R. v. T.(R.), [1992] O.J. No 1914 at para. 14 (C.A.):

To constitute a valid guilty plea, the plea must be voluntary and unequivocal. The plea must also be informed, that is the accused must be aware of the nature of the allegations made against him, the effect of his plea, and the consequence of his plea:

He explained further (at para. 37):

By an understanding of the consequences of his pleas, I mean the realization that convictions would flow from his pleas, as well as an appreciation of the nature of the potential penalty he faced.

B. Ground 1: Defence counsel’s failure to review the video recording of the Appellant’s police statement

[24] On behalf of the Appellant, Mr. Eaton-Kent submits that because the Appellant’s inculpatory police statement was an important piece of evidence against him, defence counsel was obliged to watch the statement video before giving the Appellant advice about whether to plead guilty, rather than merely relying as he did on the officer’s notes. Mr. Eaton-Kent acknowledges that defence counsel’s advice would probably not have changed if he had reviewed the statement video, but argues that this should not matter. In substance, his position can be summarized as follows:

(i) Competent counsel would have reviewed the statement video before concluding that the Appellant would not be able to raise a credible defence at trial, and before giving the Appellant advice about accepting the proposed plea deal;

(ii) The decision to waive a trial and plead guilty is a matter of such importance that any deficiency in defence counsel’s performance when giving this advice necessarily renders the Appellant’s plea insufficiently informed and makes his ensuing conviction a miscarriage of justice.

Mr. Eaton-Kent relies on the Ontario Court of Appeal’s decision in R. v. Stark, 2017 ONCA 148 as standing for the proposition that there is no need to establish actual prejudice when counsel’s incompetence has denied the accused the information necessary to make an informed choice about the exercise of fundamental trial rights.

[25] I am not satisfied either that defence counsel’s failure to watch the video recording of the Appellant’s statement rose to the level of incompetence, or that it resulted in a miscarriage of justice. On the first point, in my view there are no hard-and-fast rules as to exactly how much Crown disclosure defence counsel must review before advising a client about a guilty plea. Rather, exactly what counsel must review to meet the standard of minimal competence will depend on the particular circumstances.

[26] In the circumstances here, I do not consider it unreasonable for defence counsel to have concluded as he did that it was not essential for him to watch the video recording of the Appellant’s police statement. I reach this conclusion for two main reasons. First, the Crown’s case against the Appellant was not based primarily on his inculpatory admissions, but on the files the police had found on the computers in his bedroom. Defence counsel’s contemporaneous notes confirm that he knew that the Appellant had an arguable s. 10(b) Charter claim that could potentially lead to all of his police statements being excluded from evidence under s. 24(2). However, he concluded that even if the Appellant’s police statements were excluded the Appellant would still probably be found guilty unless he could provide a credible innocent explanation for the illicit image files found on his computers. In my view, this was a reasonable conclusion for defence counsel to reach in this case.

[27] Second, when defence counsel met with the Appellant and reviewed the officer’s notes of his police statement with him it emerged that the Appellant would not be able to provide an innocent explanation for the files on his computers, credible or otherwise, because he acknowledged to defence counsel that he had been intentionally seeking out and accessing sexual images of 15- and 16-year old girls. Quite apart from the question of whether the Appellant’s account could credibly explain the presence of sexual images of younger children on his hard drives, the further problem with the Appellant’s explanation was that it was inculpatory on its face. While the Appellant may have believed there was nothing wrong with viewing sexual images of post-pubescent teenage girls, his belief was incorrect as a matter of law and would not have afforded him a defence.

[28] The Appellant did not seek to adduce a copy of the video recording of his police statement as fresh evidence on his appeal, and I have accordingly not watched it myself. I am nevertheless prepared to accept that Mr. Eaton-Kent is correct that the recording reveals “some ambiguity” in the Appellant’s inculpatory statements that is not fully captured in the interviewing officer’s notes, and that it might have been possible to characterize some of the Appellant’s inculpatory admissions as the product of “a journey that they get to based on [the officer’s] questions”. Mr. Eaton-Kent argues that this made it incumbent on defence counsel to review the video before rejecting the possibility that the Appellant might be able to give a credible exculpatory account at trial.

[29] In my view, the fatal flaw in this argument is that the Appellant had admitted to defence counsel that what he told the police about intentionally searching for sexual images of 15- and 16-year old girls was the truth. In these circumstances, even if defence counsel had successfully had the Appellant’s police statement excluded at trial – a possibility he considered – he could not then have put the Appellant on the witness stand to give a different and exculpatory – but, based on what the Appellant had previously acknowledged, false – account. The fundamental problem defence counsel faced was not that the Appellant would be unable to give an exculpatory account credibly, but that he would be unable to do so truthfully.

[30] In these circumstances, I am not persuaded that defence counsel fell below the standard of reasonable competence by not watching the Appellant’s video statement before taking his instructions to proceed with the guilty plea. While it might have been better for defence counsel to have watched the video, the standard of reasonable competence is not a standard of perfection. In my view, once the Appellant admitted that what was recorded in the police notes of his statement was not only accurate but true, it was reasonable for defence counsel to conclude that watching the video could not realistically change his advice to the Appellant and thus would serve no real purpose.

[31] Turning to the second branch of the Appellant’s argument, I also do not agree that a finding that defence counsel was incompetent by not watching the video statement would automatically vitiate the validity of the Appellant’s guilty plea without any examination of the actual consequences of defence counsel’s omission. I do not consider such an approach to be mandated by the Ontario Court of Appeal’s decision in Stark, supra, which involved a very different set of circumstances. In Stark, the Crown had decided just before the accused’s trial commenced to elect to proceed by indictment, contrary to defence counsel’s expectations. The Crown’s election entitled the accused to make his own election under s. 536 of the Criminal Code, but rather than explaining the accused’s options to him and giving him time to make a considered decision, defence counsel had immediately waived the reading of the election and informed the court that the accused was electing trial in the Ontario Court of Justice. The Court of Appeal, per Lauwers J.A., found that this resulted in a miscarriage of justice, explaining (at para. 20):

If an accused receives no advice from counsel as to his options, or the advantages and disadvantages of the respective options, then the accused has effectively been denied his right to choose his mode of trial under s.536 of the Criminal Code. The miscarriage of justice lies in proceeding against the accused without allowing him to make an informed election, and the accused need not establish further prejudice. What the accused might or might not have done had he been aware of his options is not relevant.

[32] In contrast, the Appellant does not claim that he received no advice from defence counsel about the pros and cons of pleading guilty versus going to trial. Rather, his complaint on this ground is that the advice he received was inadequate because counsel had not watched the video recording of the Appellant’s statement. [1] In my view, in order to establish that his guilty plea was not fully informed, the Appellant bears the burden of establishing that there is at least a reasonable possibility that the advice he received from counsel would have been different if counsel had watched the video. If the Appellant could surmount this first hurdle, Stark might then assist him by relieving him of the further burden of having to demonstrate that he would have made a different choice about pleading guilty. Indeed, it is well settled that once an accused establishes that his or her guilty plea was not adequately informed, to have the plea set aside the accused must only show a “realistic likelihood” that his or her informed choice might have been different: see, e.g., R. v. Henry, 2011 ONCA 289 at para. 37; R. v. Quick, 2016 ONCA 95 at paras. 31-40.

[33] However, on the record here the Appellant’s argument founders at the first hurdle. For the reasons I have already explained, I am not satisfied that there is any realistic possibility that watching the statement video would have materially changed the advice defence counsel gave to the Appellant. The core problem the Appellant faced – namely, that he had no viable defence his counsel could ethically advance at trial – would have remained unchanged. Accordingly, even if I were satisfied that defence counsel’s failure to watch the statement video rose to the level of incompetence – which I am not – I would not be prepared to conclude in the circumstances here that it resulted in a miscarriage of justice.

C. Ground 2: Defence counsel’s error regarding the applicable mandatory minimum sentence

[34] The situation is different with respect to the erroneous advice defence counsel gave the Appellant regarding the length of the mandatory minimum sentence he faced by pleading guilty to the accessing charge. It is undisputed that at the time of the Appellant’s guilty plea he misunderstood “the nature of the potential penalty he faced”. [2] Since an inadequately informed guilty plea is invalid regardless of the underlying reasons, it is unnecessary for me to decide whether defence counsel’s failure to check for statutory amendments not included in his printed Criminal Code rises to the level of incompetence. Indeed, Crown counsel agrees that the Appellant would have been entitled to have his plea struck once he discovered that the mandatory minimum sentence had been raised to six months imprisonment.

[35] It is the Appellant’s burden to establish any contested facts on a balance of probabilities: Archer, supra at para. 119. For several reasons, I accept defence counsel’s evidence that he first disclosed his mistake about the length of the mandatory minimum sentence to the Appellant before court on October 12, 2016. First, he knew that his error would inevitably emerge during sentencing submissions, and it makes sense that he would not want the Appellant to learn about his mistake for the first time in court. Second, the Appellant’s evidence that he only learned about the six month mandatory minimum during defence counsel’s submissions is plainly incorrect in view of the transcript, which shows that the issue was discussed at some length during the Crown’s submissions. This casts significant doubt on the reliability of the Appellant’s recollection. Finally, if the Appellant really did only learn about the increased mandatory minimum sentence while he was in court, it is surprising that he would not have said anything about this when he spoke directly to the trial judge, rather than focusing entirely as he did on the issue of his accessing the Internet.

[36] Although I accept defence counsel’s evidence on this point, I am also satisfied that it was not reasonable for him to wait to the morning of the December 12, 2016 court appearance to break the news to the Appellant that he had misled the Appellant about the length of the mandatory minimum sentence he faced and the unavailability of a “time served” disposition. In my view, defence counsel ought to have contacted the Appellant as soon as he realized his mistake so that the Appellant would have more time to consider his position. Moreover, the advice defence counsel finally did give to the Appellant was deficient insofar as he presented the Appellant’s options as a binary choice between either moving to strike his guilty plea or continuing with the sentencing hearing on the basis that the minimum sentence was six months imprisonment. In my view, the Appellant ought to have been told that he had a third option: namely, maintaining his guilty plea but seeking to postpone the sentencing hearing in order to bring a constitutional challenge to the six month mandatory minimum sentence. During their first meeting in August 2016, defence counsel and the Appellant had discussed the possibility of challenging the constitutionality of the six-month mandatory minimum sentence that had previously applied when the Crown proceeded by indictment. Once defence counsel learned that charges proceeded with summarily now carried a six month mandatory minimum sentence, he ought to have told the Appellant that the possibility of bringing a constitutional challenge was now back on the table. With benefit of hindsight such a challenge would almost certainly have succeeded, at least on appeal. [3]

[37] However, it is not sufficient for the Appellant to demonstrate that defence counsel’s actions and/or advice were deficient. Rather, the Appellant must show that counsel’s ineffective representation “undermined the appearance of the fairness of the trial, or the reliability of the verdict”. In my view, even if the Appellant had been told sooner about the statutory increase in the mandatory minimum sentence, there is no realistic likelihood that this would have led him to withdraw his guilty plea. Doing so would have put him in a worse situation than he had thought he had occupied previously, since not only would he once again face being prosecuted by indictment on a charge to which he still had no defence, but if convicted he would now face a mandatory minimum sentence of one year imprisonment rather than six months, as he had previously believed, unless he brought a successful constitutional challenge.

[38] Moreover, while I accept that it is at least reasonably possible that the Appellant might have chosen to challenge the constitutionality of the mandatory minimum sentence if he had been properly advised of this option, doing so would at most have led to his receiving a shorter sentence of imprisonment than was actually imposed. It would not have had any consequences for the validity of his conviction, nor would knowledge of the constitutional challenge option have given the Appellant any compelling reason to seek to strike his guilty plea.

[39] In these circumstances, I am satisfied that the deficiencies in defence counsel’s representation of the Appellant did not cause the Appellant any actual prejudice, at least as far as the validity of his guilty plea and ensuing conviction are concerned. While the Appellant’s guilty plea was inadequately informed at the time he entered it, his subsequent decision not to seek to have his plea struck after he learned of the true situation effectively ratified its validity. Accordingly, it is unnecessary for me to determine whether the deficiencies in defence counsel’s actions and advice rose to the level of incompetence.

[40] The appeal is accordingly dismissed.

Dawe J.

Released: June 26, 2019

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Respondent – and – JOHN STRAPKO Appellant REASONS FOR JUDGMENT Dawe J. Released: June 26, 2019

Footnotes

[1] The Appellant’s further complaint that his guilty plea was not fully informed because defence counsel misled him about the applicable mandatory minimum sentence is addressed below.

[2] R. v. T.(R.), infra at para. 37.

[3] In R. v. John, 2018 ONCA 702, the Ontario Court of Appeal struck down the previous six month mandatory minimum sentence for the related offence of possession of child pornography in cases where the Crown proceeds by indictment. Based on the reasoning in John, the increased mandatory minimum sentences that took effect on July 17, 2015 as a result of the Tougher Penalties for Child Predators Act (Bill C-26) are almost certainly also unconstitutional.