R. v. Doucette, 2021 ONSC 371

COURT FILE NO.: CR-18-10000022-AP

DATE: 20210115

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

BRUCE DOUCETTE

Appellant

D. Spence, for the Respondent

D. Goldbloom, for the Appellant

HEARD: October 6, 2020

REASONS FOR JUDGMENT

On appeal from the sentence imposed on April 4, 2018 by the Honourable Justice M. McLeod of the Ontario Court of Justice.

SCHRECK J.:

[1] Bruce Doucette was sentenced to imprisonment for six months after being convicted of two counts of accessing child pornography following a summary conviction trial. The sentence imposed was the mandatory minimum penalty (“MMP”) required by s. 163.1(4.1)(b) of the Criminal Code. Mr. Doucette did not bring a constitutional challenge to the mandatory minimum at his sentencing hearing, but wishes to do so on an appeal of his sentence. He submits that the mandatory minimum penalty should be declared to be of no force or effect on the basis that it violates the s. 12 Charter guarantee against cruel and unusual punishment and requests that a sentence of time served (approximately 41 days) be substituted.

[2] The respondent Crown submits that the appellant should not be permitted to raise the constitutional issue for the first time on appeal. The respondent also submits that notwithstanding that a six-month MMP for possession of child pornography has been found by the Ontario Court of Appeal to violate s. 12 of the Charter, the MMP for accessing child pornography does not. Finally, even if the MMP is struck down, the sentence imposed is fit.

[3] For the reasons that follow, I have concluded that it is appropriate for this court to consider the constitutionality of the MMP and, having done so, have determined that it violates s. 12 of the Charter and is of no force or effect. Without the strictures of the MMP, the appropriate sentence in this case is imprisonment for four months, less credit for presentence custody. In the unique circumstances of this case, the appellant may serve that sentence in the community.

I. FACTS

A. The Offences

[4] The appellant was convicted of two counts of accessing child pornography, contrary to s. 163.1(4.1) of the Criminal Code. The first count related to written fiction he accessed between September 2014 and December 2015. The fiction consisted of stories, including one about the sexual abuse of a teenage boy by his father. At the time of his arrest, the appellant told the police that he did not believe that viewing this material was illegal.

[5] The second count related to the appellant’s participation in a “Zoom room” which he repeatedly visited in order to “slam”, that is, inject himself with methamphetamine, masturbate, and communicate with other users doing the same. Other users would stream pornography into the Zoom room, some of which was child pornography. The appellant told the police that while he watched the adult pornography, he usually minimized the child pornography but admitted that he would watch it on occasion.

[6] The appellant was charged with accessing the child pornography in the Zoom room on November 6, 2015. On that date, other users had streamed four videos depicting child pornography into the Zoom room while the appellant was logged on. These videos depicted adults engaging in sexual acts with children, including oral and anal sex. The sentencing judge found as a fact that the appellant “must have viewed the child pornography, if only for long enough to identify it and minimize the screen.”

[7] Nine images of child pornography were found on the appellant’s computer, one of which depicted a very young child in diapers being sexually assaulted by an adult male. While the appellant was not charged with possessing these images, the sentencing judge considered them as illustrative of the type of images the appellant admitted accessing.

B. The Appellant

[8] The appellant is 53 years old and has no criminal record. He is single and lived alone at the time of the offences. He is university educated and has a Bachelor of Science degree and a Masters of Landscape Architecture.

[9] The appellant was diagnosed with Bipolar Affective Disorder, Generalized Anxiety Disorder and Substance Abuse Disorder in relation to his addiction to methamphetamine. He is also HIV positive. At the time of the offences, he had been living on long-term disability benefits for six or seven years.

[10] The appellant admitted to the police that he had sexual fantasies involving children and stated in online chats with other users that his sexual age preference was “zero to nine” and that he wanted to kidnap and rape a baby. He maintained that these comments were “bravado” and “totally fantasy” and the he would never hurt a child.

[11] The appellant stopped using methamphetamine after his arrest and began to receive psychiatric treatment. The sentencing judge found that the appellant’s offences were “clearly tied to his mental disorder and his drug use” and that he had made progress in this regard.

C. The Sentencing Judge’s Reasons

[12] The sentencing judge ultimately concluded that a six-month sentence, the mandatory minimum, was appropriate:

Having regard to all of the circumstances, principally bearing in mind that although the evidence established that Mr. Doucette frequently accessed child pornography in the manner described in my reasons, it also established that he tried to limit his observations of it, … and bearing in mind the fact that he was enabled to commit these offences as a result of his mental disorder and rampant drug use, and that in the years since his arrest he has demonstrated good and sustained commitment to controlling both of these difficulties, and accepting his profound anguish at being arrested as demonstrating remorse and insight into what he has done, and recognizing that in his statements to the police, and in his testimony to the court, he admitted significant responsibility for his crimes, I find that this sentence should be one of six months.

From this, the sentencing judge deducted 33 days credit for 22 days spent in pre-sentence custody. The appellant was also placed on probation for three years and a number of ancillary orders were made.

II. ANALYSIS

A. Section 12 of the Charter

(i) Overview

[13] The appellant submits that the six-month MMP for accessing child pornography where the Crown proceeds summarily constitutes cruel and unusual punishment and therefore violates s. 12 of the Charter. He relies on a number of authorities, including the decision in R. v. John, 2018 ONCA 702, 142 O.R. (3d) 670, in which the six-month mandatory minimum for possession of child pornography was found to violate s. 12.

[14] The respondent submits that this court should decline to entertain the appellant’s constitutional argument because it was not raised in the court below and because the sentence imposed is fit regardless of the mandatory minimum. In the event that the constitutional argument is considered, the respondent submits that the mandatory minimum is not unconstitutional because there are significant differences between the offences of accessing and possession.

(ii) Should This Court Consider the Issue for the First Time on Appeal?

[15] The respondent is correct that appellate courts will generally not entertain arguments made for the first time on appeal: R. v. Roach, 2009 ONCA 156, 185 C.R.R. (2d) 333, at para. 6. There are several reasons for this, as outlined in R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at para. 40:

The general rule arises out of several concerns that include but are not limited to the following:

i. prejudice caused to the other side which lacks the opportunity to respond and adduce evidence at trial;

ii. the absence of a sufficient record from which to make findings of fact essential to a proper determination of the issue;

iii. societal interest in finality and the expectation that criminal cases will be disposed of fairly and fully at first instance; and

iv. the important responsibility of defence counsel to make decisions that represent a client’s best interests and to advance all appropriate arguments throughout the trial.

[16] Despite the general rule, an appellate court nonetheless has a discretion to consider arguments not raised in the court below: Roach, at para. 7. That discretion may be exercised where the appellate court is satisfied that (1) the evidentiary record is sufficient to fully and fairly adjudicate the issue; (2) the failure to raise the issue at trial was not due to tactical reasons; and (3) no miscarriage of justice will result: Reid, at para. 43.

[17] Those prerequisites are met in this case. First, the s. 12 challenge is based on reasonable hypotheticals rather than any findings of fact made at trial. As a result, there are no concerns about the sufficiency of the record. Counsel for the respondent acknowledges that the Crown would not have been in a position to adduce evidence respecting the issue at trial.

[18] Second, counsel for the appellant cannot be faulted for failing to raise the issue at trial. As the sentencing judge noted in his reasons, “a constitutional challenge to the minimum mandatory sentence … was likely to fail, given the weight of authority reflected in the recent decision of Justice Woolcombe in R. v. John, [2017 ONSC 810].” As noted above, that decision was later reversed by the Court of Appeal.

[19] Finally, counsel for the respondent has fairly acknowledged that allowing the issue to be raised for the first time on appeal will not occasion any prejudice to the Crown. For these reasons, I am satisfied that the general rule prohibiting new issues being raised for the first time on appeal should not apply.

(iii) Is it Unnecessary to Consider the Issue?

[20] The respondent’s second submission for why this court should not consider the constitutional issue is that the sentence of six months is fit regardless of the mandatory minimum, so the issue need not be decided: R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 18.

[21] I agree that in cases where the appropriate sentence is clearly greater than the mandatory minimum, there is little point in determining the constitutional issue. However, determining whether the appropriate sentence is greater than the mandatory minimum requires a consideration of the sentencing range established in other cases. In considering that range, regard must be had for the effect the mandatory minimum has on the range, as was explained in R. v. Delchev, 2014 ONCA 448, 323 O.A.C. 19, at paras. 18-19:

I do not agree with the Crown’s submission that one can ignore the effect of the (now-invalidated) three-year mandatory minimum sentence requirements when considering the range of sentence that is derived from sentences imposed based on those minimums. Several decisions - including many of the decisions which the Crown put before the trial judge - have explicitly recognized that mandatory minimums have the effect of creating an “inflationary floor” that set a new minimum punishment applicable to the “best” offender: R. v. Morrissey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 75, per Arbour J., concurring; R. v. Harutyunyan, 2012 ONSC 58, at para. 18, aff’d 2012 ONCA 637; R. v. Gobire, 2013 ONSC 3073, at paras. 19-20; R. v. Brown, 2010 ONCA 745, 277 O.A.C. 233, at para. 13; R. v. Andall, [2011] O.J. No. 3523 (S.C.), at paras. 23-24; R. v. Scarlett, 2013 ONSC 562, at para. 32; and R. v. Whyte, 2011 ONSC 181, at para. 18.

The effect of the inflationary floor is that because the “best offender” must receive the minimum sentence, which may be a higher sentence … than the one that would have been given without the minimum, the sentences for more culpable offenders are increased as well, so that the whole range increases. The cases referred to above all reflect that effect. Given that the mandatory minimums have been ruled unconstitutional by this court, the trial judge did not err if she gave diminished weight to sentences imposed following the imposition of the mandatory minimum when determining what would be a fit sentence.

[22] That said, while striking down the MMP would remove the inflationary floor, this does not mean that cases decided after the enactment of the MMP are not relevant in determining the appropriate range: R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, at para. 24.

[23] In this case, the sentencing judge recognized that the mandatory minimum affected the range of sentence he was required to consider:

The second difficulty is that the minimum mandatory sentences tend to skew the analysis as to the appropriate range of sentence, as in this case, where the range has been described and affirmed by the Superior Courts as being from six months to three years for typical offenders what are first offenders, usually without significant relevant histories, men who have walked among us without revealing their deviancy.

[24] In all the circumstances, I am not satisfied that the existence of a mandatory minimum sentence does not have an impact on the appropriate sentence in this case. As a result, I must consider the constitutional issue.

(iv) The Analytic Framework.

[25] Section 12 of the Charter provides:

Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

[26] The analytical framework to be applied in determining whether a MMP violates s. 12 is well established and was explained by the Supreme Court of Canada in R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773 and more recently by McLachlin C.J.C. in Lloyd, at para. 22:

The analytical framework to determine whether a sentence constitutes a “cruel and unusual” punishment under s. 12 of the Charter was recently clarified by this Court in Nur. A sentence will infringe s. 12 if it is “grossly disproportionate” to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender: Nur, at para. 39; R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045, at p. 1073. A law will violate s. 12 if it imposes a grossly disproportionate sentence on the individual before the court, or if the law’s reasonably foreseeable applications will impose grossly disproportionate sentences on others: Nur, at para. 77.

[27] In many cases, including the case at bar, the success or failure of a s. 12 challenge will depend not on the facts of the case, but on whether there exists a reasonably foreseeable hypothetical situation in which the minimum sentence would be grossly disproportionate. The limits of this exercise were explained in Nur, at para. 68:

The reasonable foreseeability test is not confined to situations that are likely to arise in the general day-to-day application of the law. Rather, it asks what situations may reasonably arise. It targets circumstances that are foreseeably captured by the minimum conduct caught by the offence. Only situations that are “remote” or “far-fetched” are excluded: Goltz, [1991 CanLII 51 (SCC), [1991] 3 S.C.R. 485], at p. 515. Contrary to what the Attorney General of Ontario suggests there is a difference between what is foreseeable although “unlikely to arise” and what is “remote [and] far-fetched”: A.F. (Nur), at para. 66. Moreover, adoption of the likelihood standard would constitute a new and radically narrower approach to constitutional review of legislation than that consistently adhered to since Big M. [R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295]. The Court has never asked itself whether a projected application of an impugned law is common or “likely” in deciding whether a law violates a provision of the Charter. To set the threshold for constitutional review at common or likely instances would be to allow bad laws to stay on the books.

It is now clear that in considering such hypothetical situations, courts may consider the personal characteristics of the hypothetical offender, provided that the example is not “remote or far-fetched”, and may rely on actual reported cases: Nur, at paras. 72-76.

(v) R. v. John

[28] It was on the basis of such a hypothetical situation that the six-month MMP for possession of child pornography was found to be unconstitutional in John. While there were three hypothetical situations posited in John, the Court considered the third one to be determinative. It was described in the following terms (at paras. 29-30):

(3) An 18-year-old whose friend forwards him a “sext” from the friend’s 17-year-old girlfriend without her knowledge. The 18-year-old doesn’t forward the “sext” but keeps it on his phone.

The appellant defines “sext” as a sexually suggestive digital image, video or text message transmitted by cellphone or the Internet.

[29] The Court of Appeal concluded that a six-month prison sentence for this conduct would violate s. 12 (at paras. 39-40):

I am of the view that the application of the mandatory minimum sentence to the offender in the third hypothetical is grossly disproportionate. Most members of the community would consider a six-month jail sentence a substantial interference with individual liberty and would find it intolerable that such a punishment could be applied to this behaviour, especially given the number of images/videos involved (one single image), the nature of the image in question (lawfully self-created), the manner of acquisition (passive recipient) and the nature of the offender (young adult).

Accordingly, I am of the view that the mandatory minimum sentence is grossly disproportionate at least in relation to the offender in the third reasonable hypothetical, violates s. 12 of the Charter and must therefore be struck down. The Crown acknowledges that the Charter violation cannot be saved by s. 1 of the Charter.

(vi) Reasonable Hypotheticals in this Case

[30] The offence in this case is accessing, rather than possessing, child pornography. The appellant therefore posits a modified version of the hypothetical situation in John:

An 18-year-old is invited by his friend to access a sexually suggestive digital image which the friend took of his 17-year-old friend. The 18-year-old accepts the invitation and accesses the image.

[31] This court has already found that the MMP for accessing child pornography violates s. 12 on the basis of this hypothetical in R. v. Fitzpatrick, 2019 ONSC 2407, at paras. 72-74. The MMP was also found to be unconstitutional in R. v. Beach, [2019] O.J. No. 1911 (S.C.J.) based on the facts of the case, which involved an accused on the autism spectrum who had intellectual impairments. The opposite conclusion was reached in R. v. J.C., 2017 ONSC 4246, 390 C.R.R. (2d) 66, at paras. 75-85. However, that decision pre-dated the Court of Appeal’s decision in John and relied on the trial judgment in that case.[^1]

(vii) Can R. v. John be Distinguished?

[32] The respondent submits that John can be distinguished because there are two significant differences between the offences of accessing child pornography and possessing child pornography. The first is that according to the respondent, the accused in the John hypothetical did not view the child pornography but only had knowledge of its existence. However, the Court of Appeal did not state that the accused in the hypothetical situation did not view the child pornography, although neither did it say that he did. Furthermore, since this appeal was argued, the Court of Appeal released its decision in R. v. Joseph, 2020 ONCA 733, in which it concluded that the one-year MMP for making child pornography in s. 163.1(2) of the Criminal Code violated s. 12. In coming to this conclusion, the Court considered what it described as a variation of the hypothetical situation in John in which the accused received the image in question on Snapchat (an application that displayed images only temporarily) and then made a screenshot of it (para. 163). It is clear that in this hypothetical situation, the accused views the image.

[33] The second difference relied on by the respondent is that the hypothetical accused in John was a passive recipient of the child pornography while the hypothetical accused in this case had to actively take steps to access the child pornography. I accept that this is a significant difference, as the Court in John expressly referred to the passive receipt in its reasons for finding the MMP to be grossly disproportionate. The question is whether the distinction is significant to the extent that the six-month MMP in John would not be grossly disproportionate if this one mitigating factor is absent. There are three reasons why I conclude that it is not.

[34] First, the mitigating factor of passivity is countered by an aggravating factor in the John hypothetical that is not present in the hypothetical in this case. The hypothetical accused in John chose to preserve the child pornography, thereby making it available to be viewed repeatedly or disseminated to others. The hypothetical accused in this case cannot repeat the offence.

[35] Second, as noted earlier, in Fitzpatrick and Beach, two judges of this court have found the MMP for accessing to violate s. 12. The respondent correctly points out that these decisions are not binding on me. However, according to the principle of judicial comity, I should follow these decisions unless I am of the view that they are “plainly wrong”: R. v. Chan, 2020 ONCA 333, 151 O.R. (3d) 353, at para. 38; R. v. Scarlett, 2013 ONSC 562, at para. 43. Given the close similarity between the section at issue in this case and the section at issue in John, I cannot say that these decisions are “plainly wrong”.

[36] Third, in my view there are other reasonable hypotheticals that lead to the conclusion that the MMP in this case violates s. 12. As was noted in Lloyd, at para. 22, a reasonable hypothetical case can be based on “actual reported cases.” One such case is the British Columbia Court of Appeal’s decision in R. v. Swaby, 2018 BCCA 416, 367 C.C.C. (3d) 439, which involved a challenge to what was then a 90-day MMP for possessing child pornography in cases where the Crown proceeds summarily. The 23-year-old accused in that case was in possession of over 800 child pornography files on his computer. However, he suffered from significant intellectual and cognitive impairments and likely suffered from a number of mental illnesses, including schizophrenia and major depressive disorder. The Court concluded that the accused’s personal characteristics reduced his moral culpability to the extent that a sentence of imprisonment would “would outrage the standards of decency of most informed Canadians” (at para. 87). In my view, that conclusion would not have been altered if the accused had been convicted of accessing rather than possessing child pornography.

[37] As noted earlier, in Beach the MMP was found to violate s. 12 based on the facts of the case. Another actual case where the MMP was found to be grossly disproportionate is R. v. Lavigne-Thibodeau, 2019 QCCQ 3824. In that case, the accused has accessed child pornography on a single occasion for less than two minutes because his father had abused his sister and he wished to determine whether he had inherited any of his father’s deviant inclinations.

(viii) Conclusion

[38] For the foregoing reasons, I have concluded that that the MMP in s. 163.1(4)(b) infringes s. 12 of the Charter. The respondent does not argue that any violation can be saved by s. 1 of the Charter. According, pursuant to s. 52 of the Constitution Act, 1982, the words “and to a minimum punishment of imprisonment for a term of six months” are declared to be of no force or effect.

B. The Sentence in This Case

(i) Sentencing in Child Pornography Cases: General Principles and The Range

[39] The fact that the MMP is unconstitutional does not mean that a six-month sentence is necessarily unfit in this case. In most cases, sentence of that length or longer will be entirely appropriate. Children are “our most valued and our most vulnerable assets”: R. v. D.D. (2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788 (C.A.), at para. 35. Child pornography of the type accessed by the appellant in Count 2 is produced by subjecting them to unspeakably horrendous and harmful abuse which is perpetuated every time the pornography is viewed. Possessing or accessing child pornography is an “abhorrent crime” of “enormous gravity”: R. v. Nisbet, 2011 ONCA 26, at para. 1; R. v. E.O., 2003 CanLII 2017 (ON CA), [2003] O.J. No. 563 (C.A.), at para. 7. Because of this, the primary sentencing objectives in child pornography cases are denunciation and deterrence, as was explained in John, at para. 41:

The mandatory minimum is entirely unnecessary. This court has recently emphasized the importance of denunciation and deterrence for any offence involving abuse of a child, and that those principles are the primary principles of sentencing applicable for such offences involving child pornography: R. v. Inksetter, 2018 ONCA 474, at para. 16.

Given the emphasis on general deterrence and denunciation, non-custodial sentences for child pornography offences are rare, even in cases involving first offenders and relatively small volumes of child pornography: Inksetter, at para. 17.

[40] In R. v. Branco, 2019 ONSC 3591, Stribopoulos J. conducted a comprehensive review of Ontario sentencing decisions in possession and accessing cases and drew the following conclusion (at para. 101):

This review of the case law demonstrates that the range of sentences varies widely, from intermittent sentences at the low end, to penitentiary sentences as long as 3 1/2 years at the upper end. Ultimately, with the exception of some outliers, where a particular case falls within the overall range of sentences is a function of its specific aggravating and mitigating factors.

[41] A helpful list of the common types of aggravating and mitigating factors in cases of this nature can found in R. v. Kwok, 2007 CanLII 2942 (ON SC), [2007] O.J. No. 457 (S.C.J.), at para. 7:

Generally speaking, any of the following are considered to be aggravating factors: (i) a criminal record for similar or related offences; (ii) whether there was also production or distribution of the pornography; (iii) the size of the pornography collection; (iv) the nature of the collection (including the age of the children involved and the relative depravity and violence depicted); (v) the extent to which the offender is seen as a danger to children (including whether he is a diagnosed pedophile who has acted on his impulses in the past by assaulting children); and (vi) whether the offender has purchased child pornography thereby contributing to the sexual victimization of children for profit as opposed to merely collecting it by free downloads from the Internet. Generally recognized mitigating factors include: (i) the youthful age of the offender; (ii) the otherwise good character of the offender; (iii) the extent to which the offender has shown insight into his problem; (iv) whether he has demonstrated genuine remorse; (v) whether the offender is willing to submit to treatment and counseling or has already undertaken such treatment; (vi) the existence of a guilty plea; and (vii) the extent to which the offender has already suffered for his crime (for example, in his family, career or community).

(ii) Aggravating and Mitigating Factors in This Case

[42] In this case, the most significant aggravating factor listed in Kwok is the nature of the child pornography. It involved children as young as six years old being subjected to sexual abuse, including penetration. Apart from this, few of the aggravating factors in Kwok are present. The appellant did not produce or distribute child pornography. The number of videos he accessed was not large, although there were also some child pornography files found on the appellant’s computer. There is no evidence that the appellant has ever harmed a child. Although the appellant admitted to making very disturbing comments about an intention to sexually assault children, the sentencing judge appears to have accepted that he did not actually intend to do so and that he had “the ability, capacity and apparent willingness to keep his deviancy under a measure of control.” There is no evidence that the appellant ever purchased child pornography.

[43] Several of the mitigating factors in Kwok are present in this case. Although not youthful, the appellant is a first offender. He accepted responsibility for his crimes at the time of his arrest and made an inculpatory statement to the police. Although he did not plead guilty, he did not deny his guilt and the sentencing judge was satisfied that he was remorseful. The appellant had undertaken counselling prior to sentencing and had made “great progress” in this regard.

(iii) The Appropriate Sentence

[44] In my view, a balancing of the aggravating and mitigating factors on this case leads to the conclusion that the appropriate sentence is one at the lower end of the range identified in Branco, although not at the very bottom of that range. Having considered all of the relevant circumstances, I have concluded that the appropriate sentence that should have been imposed is four months.

[45] The appellant spent 22 days in pre-sentence custody and is entitled to credit for this at a rate of one and half to one, for a total of 33 days. This would leave 87 days left to be served. The appellant served five of those days before being granted bail pending appeal, which leaves 82 days.

(iv) Should the Sentence be Stayed?

[46] The appellant submits that any sentence imposed by this court should be stayed because of a number of unique circumstances that have arisen since the initial sentencing in this case. I agree that there are several unique aspects to this case.

[47] First, a significant amount of time has passed since the appellant’s sentencing on April 4, 2018. It is my understanding that none of this delay is the fault of the appellant or counsel on either side. To the contrary, counsel have worked cooperatively to ensure that this matter was heard as expeditiously as possible and agreed to have the conviction appeal was heard ahead of the sentence appeal to minimize the delay. The hearing of the sentence appeal was delayed because of the COVID-19 pandemic.

[48] Second, although the appellant’s period of probation should have been suspended when he was granted bail pending appeal, it was not due to an error on the part of the probation officer and the appellant has now completed all three years of his probation. Fresh evidence filed on the sentence appeal indicates that the appellant has continued to engage in counselling.

[49] Third, I am advised that the appellant is in poor health. At the time the sentence appeal was heard, he had been admitted to hospital after contracting COVID-19.

[50] It is clear that in some cases, it is appropriate for an appellate court to stay a sentence following a successful Crown sentence appeal where the sentence imposed at trial has already been served: R. v. Dufour, 2015 ONCA 426, 326 C.C.C. (3d) 52, at paras. 11-29; R. v. Davatgar-Jafarpour, 2019 ONCA 353, at paras. 50-55; R. v. Plange, at para. 46-47, per Benotto J.A., at para. 81, per Doherty J.A.; R. v. Rhude, 2018 ABCA 422, at paras. 12-14; R. v. J.E.D., 2018 MBCA 123, 368 C.C.C. (3d) 212, at paras. 125-127; R. v. Shi, 2015 ONCA 646, at paras.13-15; R. v. Veysey, 2006 NBCA 55, at paras. 18-37. In such cases, the court will consider the passage of time as well as any rehabilitative steps that have been taken since the initial sentencing.

[51] However, this is not a Crown sentence appeal. While the appellant has completed his three years of probation due to an error on the part of the probation officer, the sentence imposed at trial has not been served. Assuming I have the authority to stay the sentence in these circumstances, this is not an appropriate case in which to do so.

[52] While the factors outlined above do not justify a stay of the sentence, they may be relevant to the sentence that is imposed on appeal: R. v. Fairbarn, 2020 ONCA 784, at para. 57; R. v. Wang (2001), 2001 CanLII 20933 (ON CA), 153 C.C.C. (3d) 321 (Ont. C.A.), at para. 75.

(v) Should the Sentence be Served in the Community?

[53] The appellant requests that he be permitted to serve his sentence in the community pursuant to a conditional sentence order. Given that denunciation and deterrence are the primary sentencing objectives in child pornography cases, conditional sentences are rare. However, they are not unheard of in exceptional cases: R. v. Rytel, 2019 ONSC 5541, at paras. 82-83; R. v. Canning, [2019] O.J. No. 4846 (C.J.), at para. 34; R. v. Cayabyab, 2019 ONCJ 772, at para. 38; R. v. H.S., 2014 ONCA 323, 308 C.C.C. (3d) 27, at para. 58; R. v. Polanco, 2019 ONSC 3073, at paras. 53-55.

[54] At the time of the initial sentencing, this was not an exceptional case and a conditional sentence would not have been appropriate. However, the various circumstances outlined earlier, while not justifying a stay of the sentence, are in my view exceptional. In addition to the passage of time, the appellant has completed his three-year probationary term, has continued to make rehabilitative efforts, and is in poor health. The latter circumstance is all the more important because of the ongoing COVID-19 pandemic. As the Ontario Court of Appeal recently observed, “[t]he pandemic certainly renders incarceration more difficult and potentially more dangerous than it was” when the sentence was initially imposed: Fairbarn, at para. 57.

[55] In the unique circumstances of this case, I am prepared to order that the remainder of the appellant’s sentence be served in the community on a conditional sentence order. In addition to the statutory conditions, he is to observe a curfew between 9:00 p.m. and 8:00 a.m. each day except while attending or going to or from a place of employment or for medical emergencies, and he is to attend and actively participate in any counselling or rehabilitative program as recommended by his supervisor.

III. DISPOSITION

[56] The appeal against sentence is allowed and the sentence of imprisonment imposed at trial is varied in accordance with these reasons. The ancillary orders made by the sentence judge remain. The order that the appellant pay a victim fine surcharge is set aside: R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599.

[57] I wish to commend both counsel for the high quality of their written and oral advocacy on this appeal and the conviction appeal.

Justice P.A. Schreck

Released: January 15, 2021