COURT FILE NO.: CR-18-859
DATE: 2019 09 25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
M. Morris
- and –
TOMASZ RYTEL
K. Szopinski
HEARD: June 12, 2019
REASONS FOR SENTENCE
D.E HARRIS J.
[1] The house sat on a quiet street in Brampton. It was a well-kept, quaint, detached home. The living room and dining room were spotless. Everything was perfectly in place.
[2] The basement, particularly compared to the first floor, was a shambles. There were plates of half-eaten food lying around. There were clothes scattered on the floor. It was as cluttered and dirty as the first floor was immaculate. When the police executed the search warrant, it was here in the basement that Mr. Rytel and his laptop computer were found.
[3] International law enforcement agencies had discovered a computer trolling websites for child pornography. Canadian police tracked the computer down to the home Mr. Rytel shared with his mother and grandmother. They lived upstairs; he lived downstairs. Upon examination, the hard drive of the computer was found to contain a large cache of child pornography, including stills and videos. After a short trial, Mr. Rytel was found guilty of possession and accessing child pornography. These are sentencing reasons for those offences.
[4] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the responsibility of the offender: Section 718.1 of the Criminal Code, R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 42, R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 82; R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688. Accordingly, these reasons will be divided into a discussion of the offence and then move on to the offender.
[5] In itself, the gravity of Mr. Rytel’s offences of possession and accessing child pornography demand a lengthy jail sentence. In contrast to this, Mr. Rytel’s serious mental illness and other deficits point in the other direction. Consonant with these two conflicting currents, the Crown asks for an 18-month sentence; the defence requests a conditional sentence.
[6] This case exemplifies the sentencing problem identified by Justice Doherty in R. v. Hamilton (2004) 2004 5549 (ON CA), 72 O.R. (3d) 1, 241 D.L.R. (4th) 490 (C.A.):
93 Fixing a sentence that is consistent with s. 718.1 is particularly difficult where the gravity of the offence points strongly in one sentencing direction and the culpability of the individual offender points strongly in a very different sentencing direction. The sentencing judge must fashion a disposition from among the limited options available which take both sides of the proportionality inquiry into account.
[7] These sentencing reasons must resolve the contrary pull of these two competing sentencing directions.
[8] It is agreed that the mandatory minimum in Section 163.1(4) of the Code for possession of child pornography does not constitute a floor for this sentencing. The Crown concedes that the one-year mandatory minimum for possession is of no force or effect by virtue of the Court of Appeal’s decision in R. v. John, 2018 ONCA 702, 142 O.R. (3d) 670. In that case, Justice Pardu found that the mandatory minimum was “entirely unnecessary” and it violated the protection against cruel and unusual punishment in Section 12 of the Charter. The Crown essentially invites me to find the same with the offence of accessing child pornography which also carries a one-year mandatory minimum as prescribed by Section 163.1(4.1).
[9] There is no rational reason in the context of constitutional validity to distinguish between possession of child pornography and accessing child pornography. It could be argued that accessing is in fact less serious than possession because the images are only being looked at and do not become part of the accused’s library. But it is unnecessary to explore this distinction. The critical point is that accessing is no more serious than possession. And so, for the reasons in John, I find the mandatory minimum for accessing also constitutes cruel and unusual punishment and proceed to sentencing unencumbered by the mandatory minimum one-year incarceration.
[10] Furthermore, although it was not argued by counsel, the accessing count is subsumed in the possession count. One cannot download and possess child pornography without accessing it. The legal and factual substrata of the two counts are virtually identical: R. v. Prince, 1986 40 (SCC), [1986] 2 S.C.R. 480. As a result, the access count is stayed under Kienapple.
THE OFFENCES
[11] An analysis of Mr. Rytel’s computer determined that there was a very high volume of images of child pornography and videos. There were almost 4,000 movies and almost 10,000 still images. Furthermore, an unusually high number of the images and videos were of very young children, including babies.
THE OFFENDER
[12] Mr. Rytel is profoundly impaired both cognitively and socially. Dr. Ali, a psychiatrist at Canadian Mental Health (CAMH), prepared a report ordered for sentencing under the Mental Health Act. Dr. Ali’s report was built on a 2017 post-offence report by Dr. A. Iosif of CAMH for the purpose of exploring whether Mr. Rytel was criminally responsible at the time of commission of these offences. Dr. Iosif found that he was criminally responsible. Both her report and Dr. Ali’s recent report describe a man suffering from schizophrenia and from other major deficits.
[13] The preparation of Dr. Ali’s report was hampered by Mr. Rytel’s inability to communicate. As Dr. Iosif said in her 2017 report, Mr. Rytel struggles to access his memory stores and to incorporate new information. Of necessity, his mother and medical records were the major sources of information for Dr. Ali’s report.
[14] Mr. Rytel is now 36 years old. He was in special education classes in high school and did not get past grade 10. Mr. Rytel told Dr. Ali that he worked at a Tim Horton’s for 2 or 3 years but was unable to remember when he held this job or why he left. Currently he is on the Ontario Disability Support Program (ODSP).
[15] Although Mr. Rytel was unaware of chronic health issues, his mother told Dr. Ali that he is diabetic.
[16] Mr. Rytel has a long, sad psychiatric history. The trouble began at 14 years old when his sister complained that he had tied her up and covered her mouth with tape. His school behaviour was increasingly erratic and he became anxious about his privacy. His family described tantrums in which he would swear, slam doors and smear condiments all over the kitchen. His family and his schoolmates were afraid of him. His mother reports that when he was in his late teens, her son would lock himself in his room, urinate into bottles, became fearful of others and complained of hearing voices.
[17] Mr. Rytel was briefly placed in foster care where he stabilized and then was sent to a “behavioural assessment home.” His aggression escalated and he was detained for a time in a youth detention centre. He soon returned to the family home, but his poor behavior continued for a couple of years, eventually requiring Children Aid Society’s intervention. In 2002, he moved out of the family home. He lived independently for an unspecified period of time but would not let anyone in his apartment because of his fears. Not too long after moving out, he moved back in with his mother.
[18] Hospital records show that Mr. Rytel was brought by his family to the emergency department at Trillium Health Center in the summer of 2010. His family was concerned that he had not left his room for 7 years, was unkempt, urinating and “stooling” in his room. He had made violent threats against his mother and sister. He was civilly committed, and it was noted that he was psychotic and was exhibiting paranoid and bizarre behavior. It is not clear what immediately came of this dire situation.
[19] After his arrest on the charges before the court in 2017, Mr. Rytel was tested by psychologist Dr. P. Wright under the supervision of Dr. Iosif. The tests demonstrated his very severe impairments. On a basic reading achievement test he scored at a grade 4.6 level. On a test called the RCFT he was asked to copy a complicated drawing from memory. This tests memory, attention, planning and working memory. His results suggested “severely disorganized cognitive processes, including storage, retention and retrieval of new memory.” In terms of cognitive functioning and impairment he scored in the 0.3rd percentile on vocabulary and in the 1st percentile on abstraction. These scores showed marked impairment. He also had extremely low scores in a test to evaluate higher cognitive functioning. There is a severe limitation in problem solving.
[20] Dr. Iosif concluded in her report:
[Mr. Rytel] appears to be experiencing some rather severe cognitive disturbance likely associated with as of yet poorly controlled symptoms of schizophrenia combined with some premorbid deficits. His present cognitive test scores would preclude non-sheltered employment and true independent functioning and thus likely reflect a rather significant cognitive loss.
Mr. Rytel's history regarding his formative years paints the picture of an individual with significant interpersonal and social deficits that appear long standing and pervasive. More recently, he reported that he spent his days completing tasks around the house for his family in exchange for money. He was guarded and unable to explain his emotional experience in any meaningful form.
It is very likely that Mr. Rytel suffers from a psychotic illness, probably schizophrenia. He described experiencing auditory hallucinations... Mr. Rytel lives largely as [a] recluse within his family and is isolated from the rest of the community. He has neither peer-aged relationships, nor structured vocational, or educational activities appropriate for his age, such as going to school, or employment. He has never had sexual contact with another person.
[21] Mr. Rytel has been subject to a Community Treatment Plan implemented since 2017. He sees a psychiatrist, Dr. Dhaliwal, regularly. He has been prescribed three anti-psychotic medications and one anti-depressant. One of the anti-psychotic medications is received by injection every three weeks. His mother takes him to receive this. Nonetheless, Mr. Rytel’s chronic auditory hallucinations continue.
[22] Dr. Ali, based on her own observations and Dr. Iosif’s 2017 report, agreed that the correct diagnosis for Mr. Rytel is schizophrenia. It was her view that Mr. Rytel had deteriorated significantly since Dr. Iosif saw him in 2017. His speech and communication skills were worse. This deterioration was confirmed by his lawyer at the sentencing hearing.
THE LAW
The Offence
[23] Looking at the offences in isolation from the offender, there is little doubt that the 18-month incarceration submission of the Crown is well within the appropriate range.
[24] The leading case in Ontario is R. v. Inksetter 2018 ONCA 474, 141 O.R. (3d) 161. In Inksetter, the offender had pled guilty to possession and “make available” child pornography on his computer. In our digital world, files on a computer can be accessed by internet users if the person in control of the computer grants permission.
[25] The police identified at least 28,052 unique images and 1,144 unique videos of child pornography on Inksetter’s computer and other devices. The offender was 51 years old with no criminal record. There was little risk of reoffending. Inksetter had pled guilty, took full responsibility and was genuinely remorseful.
[26] The Court of Appeal, on an appeal by the Crown, raised the trial judge’s two years less one day sentence to three years on the possession and three and a half years concurrent on the make available, the more serious offence.
[27] Associate Chief Justice Hoy, stressing that the dominant sentencing principles were denunciation and general deterrence, said:
22 Child pornography is a pervasive social problem that affects the global community and its children. In R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45 (S.C.C.), the Supreme Court described how possession of child pornography harms children. As Fraser C.J.A. wrote in R. v. Andrukonis, 2012 ABCA 148 (Alta. C.A.), at para. 29, “possession of child pornography is itself child sexual abuse.” The children depicted in pornographic images are re-victimized each time the images are viewed. In amassing, viewing, and making available his vast and terrible collection to others, the respondent participated in the abuse of thousands of children.
[28] As Inksetter and other cases have held, child pornography is the exploitative sexualization of children by adults. It is a deeply disturbing aberration from the natural order of things. The damage to the children depicted is permanent and profound. Viewers and purchasers like Mr. Rytel fuel the market for producing this odious material. The victimization of children must be opposed with unremitting purpose. Condemnation through the imposition of harsh sentences is necessary to fight against the evil of child pornography.
[29] Based on Insketter, the sentence in this case in light of the volume of images and videos would normally be in the same general range as the sentence in that case. The mitigating factors of remorse and an early guilty plea are not present. However, the absence of the “make available” count makes the offences here somewhat less serious.
[30] As I understand the Crown’s position, the 18-month recommendation in the case of Mr. Rytel incorporates a discount from the usual range by reason of the offender’s mental illness. Without this factor, the Crown would have requested a sentence in the range of two and a half years.
THE OFFENDER
[31] Mental illness can lower a jail sentence on two distinct grounds: 1. Mental illness can reduce an offender’s moral blameworthiness; and 2. The impact of incarceration on an individual suffering from mental illness can lead to a disproportionate effect and require a lower sentence: R. v. Ellis 2013 ONCA 739, 303 C.C.C. (3d) 228 at paras. 117-122; R. v. Batisse, 2009 ONCA 114, 241 C.C.C. (3d) 491 at para. 38; R. v. Fraser 2007 SKCA 113, [2007] 12 W.W.R. 615 at paras. 32-39.
Moral Blameworthiness
[32] It is a fundamental tenet of our criminal law that liability cannot rest solely on the doing of the prohibited act. At least a minimal mental state must accompany the act. An element of fault is necessary: R. v. Vaillancourt 1987 2 (SCC), 1987 CarswellQue 18, [1987] 2 S.C.R. 636 at para. 92 (Carswell)
[33] This focus of the criminal law on the mental state of the accused carries over into the realm of sentencing: R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500 (S.C.C.) at para. 40. It is a basic precept that a sentence must punish and be responsive not only to the crime, but to the offender as well. While diminished responsibility is not a defence as such to a criminal accusation, the concept plays an important role on sentence. This is explicit in Section 718.1 of the Code which refers to the need for a sentence to be proportionate not only to the gravity of the offence but also to the responsibility of the offender.
[34] The Crown does not dispute that Mr. Rytel is mentally ill. He does, however, strenuously dispute that mental illness is in any meaningful way related to Mr. Rytel’s offences. The argument is made that there is a lack of causal connection between the mental illness and the crimes.
[35] I disagree. For a sentence to be mitigated by a reduction in moral blameworthiness, it is true there must be a causal link between the mental illness and the commission of the offence: R. v. Hart 2015 ONCA 480, 123 W.C.B. (2d) 114 at para. 6; R. v. Branton 2013 NLCA 61, 301 C.C.C. (3d) 408 at para. 34, R. v. Prioriello, 2012 ONCA 63, 29 M.V.R. (6th) 50 (Ont. C.A.) at paras. 11-12; R. v. Robinson, (1974) 1974 1491 (ON CA), 19 C.C.C. (2d) 193, 1974 CarswellOnt 1073 (C.A.) at para. 17 (Carswell).
[36] Some cases, including Batisse, one of the leading cases out of this province on mental illness in sentencing, describe the offender’s mental health as playing a “central role” in the offence. It is not necessary to go this far, however, in order for mental illness to impact a sentence.
[37] The basic criminal law causal standard is that stated in R. v. Smithers, 1977 7 (SCC), 1977 CarswellOnt 25, [1977] S.C.J. No. 58, [1978] 1 S.C.R. 506 at para. 24 (Carswell): a contribution beyond de minimis. Or as rejigged in R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, a “significant contributing cause.” (para. 72). Further elaboration was provided in R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30, in which Justice Karakatsanis said at para. 20,
As Smithers and Nette made clear, factual causation is not limited to the direct and immediate cause, nor is it limited to the most significant cause.
[38] While these comments refer to criminal liability, they also apply in the sentencing context. As it is a mitigating factor at issue, the burden to show that mental illness played a part is on the offender to the balance of probability standard: see Section 724(3)(d) of the Criminal Code, R. v. Holt 1983 3521 (ON CA), [1983] O.J. No. 8, 4 C.C.C. (3d) 32.
[39] In determining this question, the nature of the offence is important. Possession of child pornography is not generally susceptible to a straight-line cause and effect relationship. Aside from psychiatric evidence showing paedophilic tendencies, it is difficult to say what attracts a person to child pornography. It is different in kind from the more common situation of an offence against the person in which mental illness may make a person more prone to bursts of uncontrollable anger, for example. In that situation, the causal route between the mental illness and the offence is proximate and direct.
[40] The fullest treatment of this issue is the recent British Columbia Court of Appeal decision in R. v. Williams, 2019 BCCA 295, [2019] B.C.J. No. 1515. Without specifically referring to Smithers, the Court adopted the same standard. After reviewing the case law, the court accepted that if mental health issues contributed to the sexual interference offence at issue there, then mitigation was appropriate. The Court adopted its decision in a previous case that indirect contribution to an offence was sufficient: see para. 76 of Williams, making reference to R. v. Badhesa, 2019 BCCA 70 at paras. 42.
[41] In Williams itself, a childhood of deprivation, abuse and neglect led to the appellant’s exploitative and controlling relationships. Causation was indirect but contributed to why the sexual offence was committed.
[42] Closer to the factual circumstances of Mr. Rytel’s situation is the British Columbia Court of Appeal case of R. v. Swaby 2018 BCCA 416, 367 C.C.C. (3d) 439, leave to appeal to SCC refused [2019] S.C.C.A. No. 17 which predates Williams. The court in Williams referred to and relied upon Swaby on the issue of causation.
[43] In Swaby, the Court of Appeal, following the John decision from Ontario, struck down the mandatory minimum for possession of child pornography. I lean heavily on Justice Bennett’s judgment in Swaby with respect to several other aspects of the sentencing of Mr. Rytel, particularly causation.
[44] Swaby was a child pornography case in which the offender was in possession of 480 still images and 400 videos of sadistic and violent offences against children, some of them very young children. Swaby was significantly cognitively and intellectually impaired, with a differential diagnosis of bipolar disorder or schizoaffective disorder. Ultimately, the trial judge, the summary conviction appeal court judge and the Court of Appeal all agreed that although a jail sentence would normally be required, Swaby’s mental health problems both reduced his moral blameworthiness and increased the negative impact a jail term would have on him. The exceptional measure of a conditional sentence was the appropriate disposition.
[45] The summary appeal court judge in Swaby specifically disagreed with the Crown that there was a lack of causal connection between the mental health issues and the offences: see R. v. Swaby, 2017 BCSC 2020, [2017] B.C.W.L.D. 6989. It is worth quoting his conclusion at some length as it bears directly on the Crown argument made with respect to Mr. Rytel here,
106 It is true that neither psychologist truly explored why Mr. Swaby specifically sought out child pornography to deal with his depression and social isolation, but both explained the connection between Mr. Swaby’s mental health and cognitive issues and his offending. To reiterate, Dr. Bartel’s supplemental report indicated that:
(Mr. Swaby’s) intellectual disability would have likely affected his ability to reason and think through the illegality of what he was doing and the possible negative consequences should he be caught. His psychosis and depression would also have made it more likely for him to isolate himself and seek relief and limited pleasure through pornography use.
and Dr. Mordell’s report indicated that:
Depression and lower intellectual functioning are both risk factors for committing a sexual offence, including non-contact offences. According to . . . a risk assessment instrument (used by Dr. Mordell), these factors can lead to impulsive behaviour and be associated with poor coping, judgment, and self-awareness. In Mr. Swaby’s case, such social isolation and excessive time spent on the internet, appear to have been factors contributing to his offence.
107 While the sentencing judge was not entirely happy with the opinions he received on the causal connection, he certainly had an evidence-based foundation to conclude on a balance of probabilities that “Mr. Swaby’s lower intellectual functioning combined with the presence of severe depression and probable psychotic disorder would have impacted his decision making and judgment and that it contributed to his commission of the offence.” He did not err in doing so. (Emphasis in Original)
[46] In the Court of Appeal, Justice Bennet did not disagree with these comments.
[47] Turning back to Mr. Rytel, Dr. Iosif in her NCR report of 2017 said,
Although Mr. Rytel likely does suffer from a major mental illness and may have been psychotic at the material time, his specific offense of accessing child pornography does not seem to be related to this diagnosis. Mr. Rytel has indicated repeatedly that the voices told him to access child pornography, but his report appeared unreliable and highly questionable.
[48] While at first blush, this might appear conclusive against a causal link, Dr. Iosif was not applying the factual causation standard from Smithers. It is clear from her language that she applied a more rigorous direct causation “but for” test. Although this was perfectly proper for her purposes, the more generous approach in Swaby is the correct one in the context of this sentencing.
[49] I conclude that Mr. Rytel’s mental illness was a substantial cause of his possession and accessing of child pornography offences. It is tempting to say that on the most general level, Mr. Rytel’s mental illness is so pervasive that it would be difficult to say that it does not contribute in some measure to almost every aspect of his life. It is difficult to imagine how his mental illness and social estrangement could not have had some role to play in his offences.
[50] But specifically, even more than Swaby, Mr. Rytel is almost completely cut off from not only relationships with other people but with even incidental contact with them. His state of isolation is extraordinary. As Dr. Iosif said, Mr. Rytel does not work or go to school and has not in many years. He has no friends. While it was said years ago that Mr. Rytel did not come out of his room for seven years, it does not appear that things are all that different now. He is cut off even from his family. It is rare for an individual to be so completely immured from other people.
[51] Mr. Rytel by reason of his severe interpersonal, social isolation and lack of independence has been pushed into himself. Primarily as a result of his illness, Mr. Rytel has never had sexual contact with another human being. His total lack of emotional or social relationships was in my view a contributing factor in his offences.
[52] Furthermore, Mr. Rytel’s social and intellectual impairments have no doubt degraded his moral judgments, judgments which would in many situations prevent those inclined from collecting child pornography from acting on them.
[53] Lastly, Dr. Mortell’s conclusion in Swaby that “[d]epression and lower intellectual functioning are both risk factors for committing a sexual offence, including non-contact offences” is directly applicable to Mr. Rytel.
[54] In conclusion, in the context of this offence, there is a causal connection between Mr. Rytel’s mental illness and his criminal responsibility. His moral blameworthiness is substantially diminished as a result.
The Effect of a Jail Sentence on Mr. Rytel Would be Disproportionate to his Moral Blameworthiness
[55] The second method by which a sentence can be reduced by reason of mental illness is the disproportionate and potentially crushing effect of incarceration on a mentally ill individual. This concept has been embraced in the jurisprudence and counsels against a jail sentence for Mr. Rytel: see Batisse at para. 38, Swaby (C.A.) at paras. 27, 67, R. v. Shahnawaz, 2000 16973 (ON CA), 51 O.R. (3d) 29 (C.A.) at para. 34, Fraser at para. 39, R. v. Newby 1991 ABCA 307, 84 Alta. L.R. (2d) 127.
[56] I agree with the comment in Branton equating mental health issues to physical health issues, holding that both are legitimate considerations on sentence: see para. 38. Mental health issues can be as debilitating if not more so than are physical health issues.
[57] Based on the psychiatric evidence, the evidence of his mother and my observations in court, I am convinced that a jail term would have deeply destructive effects on Mr. Rytel, effects drastically out of proportion to his moral blameworthiness.
[58] His schizophrenia will make incarceration substantially more onerous for him. Dr. Ali identified several features which will contribute to this, writing,
He presented with negative symptoms such as blunted affect, poverty of thought and speech and cognitive difficulties. Collateral information report a history of auditory hallucinations, disorganized behaviour, paranoia, and is consistent with a diagnosis of schizophrenia.
[59] The psychiatric report details an extensive history of bullying when Mr. Rytel was in high school. Mr. Rytel told Dr. Ali that he was bullied and hit by teachers and other students. His mother confirmed the bullying and said that at one point other children “put a gun to his head.” Although the bullying took place quite a few years ago, there is every possibility that similar abuse would be visited upon Mr. Rytel in a jail setting.
[60] Mr. Rytel’s mother wrote a letter for sentencing. She says,
My son is a person who is not like many other children. He has suffered from mental difficulties throughout his life. … He finds it very difficult to do everyday tasks such as food shopping or cooking. Most of my life Tomasz has been living with me and I look after him the best I can.
Tomasz needs someone to help him with most of the things he does, the medication makes him forgetful and he finds it very difficult to concentrate, it seems he is half-asleep all the time, he forgets a conversation before it is over. I do not think that Tomasz can survive without someone looking after him. I think that Tomasz would not survive in jail, he gets scared on a bus and only wants to go shopping late at night when there are no people in stores.
It is difficult to think of Tomasz as an adult. He does not grasp things in the same way that most people do. Tomasz tries to be a good child, he listens, he tries to avoid people but he does not want to hurt anyone.
[61] The observations in the letter were not challenged in evidence or argument by the Crown. Caution is appropriate when it is said that a person is so fragile, he cannot withstand jail. An overly sensitive psyche ought not to be a significant factor leading to a reduction of a jail sentence. But the evidence in this case goes much further. I fully accept his mother’s comments and concerns.
[62] There is no reason why observations of an offender in court ought not to be taken into account. The trial judge in Swaby referred to his observation of the mentally disordered accused in court and the Court of Appeal agreed that it was appropriate: Swaby (C.A.) at para. 81.
[63] I observed Mr. Rytel during the proceedings as he sat next to his counsel. Mr. Rytel’s facial appearance is that of a one-year old child, a one year old in the body of an adult. There was a constant look of apprehension and bewilderment on his face, probably indicative of a similar feeling to that which keeps him out of public places except at night when there are fewer people. His extreme discomfiture was obvious.
[64] Mr. Rytel’s vulnerability could not be more conspicuous. Jail can be and often is a very difficult and potentially dangerous environment to navigate. Mr. Rytel cannot cope being around people and has no social skills of any kind. Furthermore, his very unusual appearance and his impairments would make him prime fodder for the cruelty which is a daily fact of life in that environment.
[65] In this case, based on the entire record, I have very grave concerns about Mr. Rytel’s welfare in jail. Apart from these risks, I find that substantial jail time would be disproportionate to his moral blameworthiness, blameworthiness which, as explained above, is significantly diminished by reason of his mental illness.
[66] There may be some cases in which the seriousness of the crime may preclude reliance on these considerations. In sentencing, as the seriousness of the crime increases, the characteristics of the offender move gradually to the background. At the top level of seriousness, attention due the offender may be only minimal.
[67] In this case, although serious as emphasized in Inksetter, the crime does not dictate such a high sentence so as to relegate the offender to an afterthought.
[68] A vital element of fair and proportionate sentencing is flexibility. Flexibility allows for individualization. Individualization, as has been repeatedly emphasized by the Supreme Court, is a fundamental goal of our sentencing law: R. v. Pham 2013 SCC 15, [2013] 1 S.C.R. 739 at paras. 6-9, R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 at para. 39.; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 at para. 43, R. v. M. (C.A.), at para. 92. The sentence recommended by the Crown in the circumstances would be contrary to sentence individualization and would be to adopt a cookie-cutter approach to sentencing.
[69] In the context of the individualization due an offender, Justice Gascon has written:
If a judge fails to individualize a sentence and to consider the relevant mitigating factors while placing undue emphasis on the circumstances of the offence and the objectives of denunciation and deterrence, all that is done is to punish the crime.
R. v. Lacasse 2015 SCC 64, [2015] 3 S.C.R. 1089 at para. 128, in dissent but no disagreement by the majority on this point.
[70] The removal of sentencing flexibility and individualization with respect to both the offence and the offender wrought by the proliferation of legislative mandatory minimums has led to widespread judicial disapproval and declarations of unconstitutionality. The mandatory minimum jurisprudence has to date focussed almost exclusively on whether sentences would be grossly disproportionate in view of the hypothetical conduct caught by a criminal prohibition. However, lately there has crept into the decisions a consideration of proportionality for exceptional, vulnerable offenders like Mr. Rytel: see R. v. Boudreault 2018 SCC 58, 369 C.C.C. (3d) 358 at para. 68.
[71] The former one year mandatory minimum applicable in this case, although proportionate to the offence, would have been disproportionate in relation to the offender. So too, necessarily, is the 18-month sentence recommended by the Crown.
THE PRINCIPLES OF SENTENCING: DETERRENCE AND DENUNCIATION
[72] Mr. Rytel’s mental illness diminishes his moral blameworthiness and, at the same time, establishes that a jail sentence would have a disproportionate effect on him. In the result, the societal factors of deterrence and denunciation, paramount in offences of child pornography, are substantially diminished.
[73] The theory of general deterrence is that like-minded individuals will be dissuaded from committing similar offences by the sure knowledge that they will receive a substantial jail sentence in return. Where it is a mentally ill offender, the appellate authorities explicitly recognize that mentally ill individuals will not generally be deterred by such utilitarian measures: Batisse at para. 38, R. v. Dedeckere, 2017 ONCA 799, 15 M.V.R. (7th) 177 at para. 14, Badhesa at para. 44, R. v. Dickson, 2007 BCCA 561, 228 C.C.C. (3d) 450 at para. 70, R. v. Peters 2000 NFCA 55, 194 Nfld. & P.E.I.R. 184 at para. 18. Also see R. v. Ramsay 2012 ABCA 257, 292 C.C.C. (3d) 400 at para. 33. General deterrence is of lower importance.
[74] Furthermore, sentencing a mentally ill offender in order to send a message to those members of the public likely to commit similar offences is both logically unsound and inhumane: D.A. Thomas Principles of Sentencing (Heinemann, 1973) at pp. 25, 257.
[75] Similarly, with respect to denunciation, the underlying purpose is to affirm community values through the imposition of a fit sentence: M. (C.A.) at para. 81. Denunciation of the offence with little or no regard to the offender is contrary to the proportionality sentencing mandate. In the case of a mentally ill offender, denunciation must be tempered.
[76] Apart from denunciation and deterrence, nor can it be said that incarceration of Mr. Rytel is necessary for the future protection of society, perhaps the highest purpose of the criminal law. Specific deterrence is not a principle which requires vindication in this sentencing. Mentally ill offenders are less likely to be specifically deterred because the illness prevents the educational aspect of a sentence from being communicated to an offender. (Batisse, at para. 38, Ramsay, at para. 33).
[77] Moreover, as a bail condition, Mr. Rytel has been required to relinquish possession and use of any device which can access the internet. His mother says in her letter to the court that she has policed this condition and that he has complied with it. She will continue to prohibit his possession and use of a computer. She was shocked by the allegation of possession of such a large amount of child pornography.
CONCLUSION
[78] When all is said and done, the question must be: what societal goal would be achieved by a jail sentence in this case? General deterrence and denunciation are of substantially diminished importance. A reasonable and informed member of the public would understand that although Mr. Rytel’s offences are serious, incarceration would serve no justifiable purpose. Jail sentences for child pornography will almost always be in the Inksetter type of range, but there must be exceptions, rare as they might be. In this case, the need for individualization in respect of the offender swings this sentence towards the offender and away from the gravity of the offence.
[79] The jurisprudence from the Court of Appeal recognizes that there are situations in which incarceration is “counterproductive” (Ellis at paras. 117, Batisse at para. 38). This is one.
[80] Section 718.2(e) of the Criminal Code codifies the principle of restraint in sentencing, directing that
[A]ll 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.
[81] To sentence Mr. Rytel to real jail would contribute to the longstanding (and exceedingly stubborn) problem of overincarceration in Canada: R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688 at para. 57. R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 at para. 96, Batisse at paras. 35-36.
[82] The sentence of a conditional sentence which I intend to impose is admittedly below the permissible range for child pornography offences. But a sentence, if there are exceptional circumstances, can be fit and appropriate despite being outside the range: Lacasse, at para. 58, Nasogaluak, at para. 44. Mr. Rytel’s mental illness and social deficits qualify as an exceptional circumstance dictating an exceptional sentence: see Newby.
[83] A conditional sentence delivers some degree of deterrence and denunciation: R. v. Proulx, 2000 SCC 5 at para. 22. A premise of a conditional sentence is that it should generally have a punitive impact (Proulx at paras. 36-37). Unfortunately, the punitive impact of a conditional sentence may be dampened in the case of Mr. Rytel. He is a shut-in and, unlike most offenders, house arrest will not be felt by him as a punitive restriction to any significant extent. That, given the circumstances, cannot be helped. It does not alter the fact that jail would be a disproportionate sentence.
[84] For these reasons, there will be a conditional sentence. I am prepared to hear submissions from counsel with respect to what duration and what terms ought to be imposed as part of the conditional sentence. [A 15-month conditional sentence was imposed with house arrest.]
[85] There will also be a probation order for the sole purpose of ensuring that Mr. Rytel no longer has the means to come into possession of a device that could be used to view or collect child pornography.
D.E HARRIS J.
Released: September 25, 2019
COURT FILE NO.: CR-18-859
DATE: 2019 09 25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
TOMASZ RYTEL
REASONS FOR JUDGMENT
D.E HARRIS J.
Released: September 25, 2019