COURT FILE NO.: CR-22-046-00 SCA(P) DATE: 2023 01 13
ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL
BETWEEN:
HIS MAJESTY THE KING Michael Godinho, for the Crown Respondent
– and –
J.S. Appellant Thomas Balka, for the Respondent
HEARD: January 11, 2023
REASONS FOR JUDGMENT [On Appeal from the Judgment of Justice R.J. LeDressay, dated February 20, 2022]
J.M. WOOLLCOMBE J.
Introduction
[1] The appellant, J.S., was convicted of one count of possession of child pornography, contrary to s. 163.1(4) of the Criminal Code and one count of voyeurism, contrary to s. 162(1) of the Criminal Code. He received concurrent sentences on each count of 4 months, or 120 days incarceration, less credit of 6 days pre-sentence custody. He appeals his sentence, alleging in his factum that the sentencing judge erred in three respects:
a. By failing to address whether a conditional sentence would be appropriate in this case;
b. In his assessment of the factors set out by the Supreme Court of Canada in R. v. Friesen 2020 SCC 9; and
c. In failing to give sufficient weight to the collateral consequences of the significant injuries he suffered in custody as a result of his incarceration for these offences.
[2] By way of very brief overview, following an uncontested trial, in which an agreed statement of fact was filed and no submissions were made on behalf of the appellant, he was found guilty.
[3] The agreed facts are as follows:
The accused in this matter, [J.S.] was in a common law relationship with M.M. for approximately 8 years. They were residing together with M.M.'s two daughters as well as one of [J.S.'s] daughters, M.S. (age 14). M.M.'s eldest daughter is the victim in this matter, C.M. (age 15). This relationship dissolved in September 2019 after M.M.'s youngest daughter C.A.M. (age 12) disclosed that on one occasion, she believed the accused had pulled down her pajama pants and took a photo of her as he was carrying her to bed.
The accused and M.M. continued communication after the dissolution of their relationship and on the 14th of January 2020, they were engaged in a phone conversation concerning trust issues, at which point the accused provided M.M. with the password to his email account to address her concerns. While looking through the emails M.M. located two separate emails with attached images. Upon opening it, she observed an image of her daughter C.M. in a bathroom, naked from the waist up exposing her breasts. M.M. confronted the accused about the image, and he acknowledged that they were taken of the victim without her knowledge while she was using the washroom at the cottage and the accused was outside smoking a cigar. The Halton Regional Police Service was contacted, and an investigation ensued.
On the 17th of January 2020, the accused was arrested and charged with one count of Voyeurism, one count of Make Child Pornography and one count of Possession of Child Pornography and held for a bail hearing.
Analysis
[4] It is well established that appellate courts must generally defer to sentencing judges’ discretion. An appeal court can only intervene and vary a sentence if the sentence is demonstrably unfit or if the sentencing judge made an error in principle that had an impact in the sentence. Errors in principle include an error in law, a failure to consider a relevant factor or an erroneous consideration of an aggravating or mitigating factor. To be clear, not every error in principle is material. In order to intervene, the error must have had an impact on the sentence imposed: Friesen at paras. 25-26.
[5] In his reasons, the sentencing judge engaged in a fulsome review of the relevant principles of sentencing. He then fully and fairly set out the circumstances of the offence, offender and the victim impact. In detail, he elaborated on the personal circumstances of the appellant, including those in the Pre-Sentence Report and those in Dr. Gojer’s report respecting the impact on the appellant of the violent attack he was subjected to while in custody awaiting his bail hearing. He carefully summarized the aggravating and mitigating factors.
[6] The sentencing judge also carefully analysed the Supreme Court of Canada decision in Friesen and the factors that should be considered in sentencing offenders for sexual offences against children. He recognized that denunciation and deterrence were paramount, but acknowledged that the principle of rehabilitation was also important, as was the need to recognize the principle of restraint for a first offender. He gave significant consideration to the fact that the appellant was severely beaten in custody awaiting his bail hearing and acknowledged that this was an important collateral factor to consider on sentencing.
[7] Ultimately, the sentencing judge engaged in a balancing of the relevant factors he had already discussed. He rejected the appellant’s position that in light of the assault he suffered in custody, he should not be re-incarcerated at Maplehurst or incarcerated anywhere else. He rejected the defence submission that it would be offensive to the integrity of the judicial process to impose a custodial sentence. He concluded that a fit sentence was four months incarceration.
[8] I will address now each of the errors alleged by the defence.
The alleged error in not more specifically addressing whether a conditional sentence would be appropriate
[9] Before the sentencing judge, defence counsel filed written submissions respecting sentence and then made brief oral submissions. The defence position was that a fit sentence would be a suspended sentence of 18 months. There was a significant focus on the reasons why the appellant should not, in light of the assaultive conduct he had been subjected to in custody, be sentenced to any time in custody.
[10] No oral or written submissions were made by counsel in support of a conditional sentence. That said, counsel did file authorities that addressed conditional sentences, including R. v. Cohen, [2001] O.J. No, 1606 and R. v. Doucette, 2021 ONSC 371.
[11] In his reasons, the sentencing judge did not specifically address why a conditional sentence was not fit. Nor, in fact, did he specifically say why a suspended sentence was unfit. What he did say was both that he had considered the defence position that the appellant should not serve a custodial sentence and that in his view, balancing all of the relevant factors, a fit sentence was 4 months jail.
[12] It is the appellant’s position that having rejected the defence position that a suspended sentence sought by the defence was not appropriate, the sentencing judge was required to specifically consider whether a conditional sentence could be imposed. It is the defence position that given the unique circumstances surrounding the appellant having been attacked in custody, a conditional sentence would have been appropriate. The defence suggests that the Court of Appeal decision in R. v. M.M., 2022 ONCA 441, released after the sentencing decision in this case, supports the availability of a conditional sentence in exceptional circumstances such as those that exist in this case.
[13] The Crown submits that the sentencing judge’s reasons demonstrate that he rejected the defence position that anything short of custody was fit. While he recognized the significant attack on the appellant, the sentencing judge rejected that this was so exceptional as to justify a non-custodial sentence. In so doing, it is implicit that he rejected that a conditional sentence was fit. The Crown says that the sentencing judge gave effect to the collateral circumstances by imposing a sentence of 4 months, a sentence at the low end of the appropriate range given the circumstances.
[14] Sentencing judges are not required to slavishly adhere to particular formulas or language. There is no template from which reasons must be written. Sentencing judges must give effect to the appropriate principles of sentencing, tailoring a fit sentence for the particular offender and circumstances.
[15] It is clear from his reasons that the sentencing judge carefully reflected on the defence position that the appellant should not serve a custodial sentence at Maplehurst, or anywhere else. He appreciated and explicitly referred to the fact that the cases filed supported a wide variation of sentences, from suspended sentences to conditional sentences to custody. The reasons for sentence thus demonstrate that the judge was alive to, and considered, the possibility of imposing a sentence other than custody, including a suspended sentence and a conditional sentence. However, he rejected the defence submission that a non-custodial sentence should be imposed in all of the circumstances. It is only logical, reasonable and fair to infer from this that the very experienced sentencing judge had determined that neither a suspended sentence nor a conditional sentence was fit in this case. This is hardly surprising, given the strong language in Friesen that sentences for this sort of offences need to be increased and the prevailing jurisprudence that conditional sentences for these offences were exceptional.
[16] I do not accept the appellant’s suggestion that the sentencing judge’s failure to provide further reasons for rejecting a non-custodial sentence means that he did not properly consider whether a conditional sentence was fit. When the reasons for sentence are read as a whole, I think it can be fairly inferred that rejection of a non-custodial sentence meant rejection of both a suspended sentence and a conditional sentence, even though neither type of sentence was specifically mentioned.
[17] This ground of appeal is dismissed.
The alleged error in considering the Friesen factors
[18] The appellant also submits that the sentencing judge erred in his assessment of the factors set out in Friesen.
[19] In Friesen, the Supreme Court of Canada commented on significant factors to determine a fit sentence for sexual offences against children. As the Court noted at para. 121, the comments are neither a checklist nor an exhaustive set of factors. The factors identified include:
a. Likelihood to reoffend;
b. Abuse of a position of trust or authority;
c. Duration and frequency;
d. Age of victim;
e. Degree of physical interference; and
f. Victim participation.
[20] In considering these factors, the sentencing judge held that “the fifth and sixth factors are not relevant factors that are applicable to your case”.
[21] The appellant submits that this reflects an error because in finding these factors irrelevant, the sentencing judge failed to give effect to the fact that they were, in fact, mitigating. Counsel submits that the fact that there was no physical interference suffered by the victim, and the fact that she did not participate or even know she was being photographed, were all mitigating features that had to be considered.
[22] I do not accept that the sentencing judge fell into the error alleged.
[23] The Supreme Court commented on the “degree of physical interference” factor at paras. 137-147 of Friesen. At para. 138, the observation was made that the degree of interference is a recognized aggravating factor and that this factor reflects the degree of violation of the victim’s bodily integrity. At the same time, the Court cautioned, at para. 145, that sexual violence against children remains inherently wrongful regardless of the degree of physical interference.
[24] The sentencing judge was well aware of the fact that these offences did not involve physical interference with the victim. Indeed, at para. 124, he addressed this issue, observing: “These offences did not involve physical contact between yourself and the victim”. The sentencing judge went on, correctly, to hold that there was wrongfulness in sexual offences against children even if there is no physical harm.
[25] Physical interference with a victim can be a significant aggravating factor on sentence. That factor was not present here. The trial judge recognized this and so it is presumed that it was part of the factual matrix he considered in crafting a fit sentence. Read as a whole, I see no error in his approach to the significance of the absence of physical contact in these offences.
[26] Similarly, in respect of the absence of victim participation in the offences, I do not read the sentencing judge’s reasons as a whole as suggesting that he failed to recognize that the victim did not participate in the offences or that this aggravating factor was absent.
[27] I do not agree with the defence position that the sentencing judge failed to give sufficient emphasis to the absence of these aggravating factors. Their absence clearly informed the sentencing judge’s approach to determining a fit sentence. He made no error respecting them.
[28] This ground of appeal must be dismissed.
The alleged error in failing to give sufficient weight to the collateral consequences of the appellant having been assaulted in custody
[29] The appellant urges me to find that the appellant was entitled to a more detailed consideration of the imposition of a conditional sentence. I am urged to conduct that consideration now. The defence relies on M.M. and submits that in this case, the assault on the appellant in custody is an exceptional circumstance that warrants the imposition of a conditional sentence. Of course, the sentencing judge did not have the benefit of the decision in M.M. because it had not been decided at the time his decision was released.
[30] In M.M., the Court of Appeal considered a Crown appeal against the imposition of a conditional sentence for sexual offences against a child. The Court held, at para.16, that a 15 month conditional sentence should not have been imposed, stating:
Conditional sentences for sexual offences against children will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate – for example, where it gives rise to a medical hardship that could not adequately be addressed within the correctional facility. It would not be appropriate to enumerate exceptional circumstances here and we make no attempt to do so. Suffice it to say that no exceptional circumstances are present in this case. A sentence of imprisonment should have been imposed.
[31] The Court of Appeal direction is clear: first, conditional sentences for these sorts of offences will rarely be appropriate; and, second, conditional sentence will only be appropriate in exceptional circumstances. There is no closed list as to what can amount to exceptional circumstances.
[32] The Crown concedes that the fact that an accused is assaulted in the manner that the appellant was in custody, while awaiting his bail hearing, could amount to an exceptional circumstance warranting the imposition of a conditional sentence. I agree that it could. That does not necessarily mean that it must, or that it should in this case. More importantly, it does not mean that the sentencing judge’s discretionary decision not to impose a conditional sentence amounts was erroneous.
[33] The appellant frames the issue whether the sentencing judge failed to give sufficient weight to this mitigating factor. But, the argument of the appellant is really that the sentencing judge was required to conclude that the brutal attack on the appellant in custody amounted to an exceptional circumstance that required the imposition of a conditional sentence.
[34] The first difficulty with the appellant’s position is that the sentencing judge’s weighing of the various factors he had to consider in deciding a fit sentence is entitled to deference. It is not the role of an appeal court to re-weigh those factors afresh to see if the appeal court reaches the same conclusion.
[35] In any event, I have carefully considered whether, in the circumstances of this case, the sentencing judge fell into error by giving too little weight to the devastating effect of the attack the appellant suffered in custody. I cannot find that he did. The reasons for sentence demonstrate that the sentencing judge fully appreciated that the appellant had suffered a very serious and life-changing beating in custody.
[36] First, as he was considering the circumstances of the offender at paras. 58-61, the sentencing judge reviewed what had happened in the attack, including the physical injuries that the appellant sustained. He also reviewed Dr. Gojer’s report, which summarized the physical and psychological effects of this attack on the appellant. He summarized both the current state of the injuries and the permanent effects that resulted. He was highly attuned to exactly what the appellant had undergone and to the effects of that attack on him.
[37] Second, when conducting his analysis as to what would be a fit sentence, the sentencing judge returned to the issue of the beating at para. 115 and following, noting that it had resulted in long lasting and likely permanent physical and psychological injuries.
[38] Finally, the sentencing judge accepted that the serious assault was an important consideration on sentencing, and one that warranted significant reduction in the sentence imposed. In my view he was required to make this finding and to reduce the sentence accordingly. He did so. I cannot conclude that it was an error not to find that only a conditional sentence could give proper effect to this mitigating factor.
[39] I think it was open to the sentencing judge to conclude, after balancing all of the relevant factors, that only a custodial sentence could accomplish the goals of sentencing. The appellant surreptitiously took a photo of a 15 year old child who was naked from the waist up and whose breasts were exposed. He did so while in a position of trust towards her. He kept that image in his email. The victim and her mother were both significantly impacted by the offences. There was a pressing need for denunciation and deterrence. I do not accept that the sentencing judge’s discretionary decision to reject a sentence served in the community and to impose a custodial sentence reflects an error of giving insufficient weight to the attack that the appellant suffered in jail. My view is fortified by the Court of Appeal’s recent statement that conditional sentences for these sorts of offences should be rare.
[40] This ground of appeal must fail.
Conclusion
[41] Despite the helpful submissions of counsel for the appellant, I am not persuaded that the sentencing judge committed any error that warranting appellate intervention. The appeal is dismissed.
[42] Like the sentencing judge, I am of the view that it would be completely inappropriate for J.S. to serve any portion of his sentence at Maplehurst Correctional Facility. Courts in this province do not have the authority to direct institutional placement: Ministry of Correctional Services Act, R.S.O. 1990, c. M.22, s. 17. In view of this, the recommendation made by the sentencing judge respecting the appellant’s sentence should remain in place and should be attached to the warrant of committal: R. v. McGaw, 2023 ONCA 8 at para. 38.
[43] The appellant has been released on bail pending this appeal. He must surrender into custody. Counsel for the appellant is to make arrangements with the Crown for his surrender into custody to serve his sentence. I urge counsel to work with the relevant authorities to ensure, before J.S.’s surrender, that a plan is in place for him to serve his sentence in protective custody, and that the authorities are aware of the strong recommendation that he not be incarcerated at Maplehurst.
Woollcombe J.
Released: January 13, 2023