



WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the
Criminal
    Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)     any of the following offences;

(i)      an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in paragraph (a).

(2)     In proceedings in respect of the
    offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2)   In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18.

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. S.C., 2019 ONCA 199

DATE: 20190313

DOCKET: C65198

Sharpe, Benotto and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

S.C.

Respondent

Lisa Joyal, for the appellant

Margaret Bojanowska, for the respondent

Heard: February 5, 2019

On appeal from the sentence imposed by Justice Donald
    McLeod of the Ontario Court of Justice on March 9, 2018.

Sharpe J.A.:

[1]

The Crown appeals the nine-year sentence imposed
    on the respondent following his guilty plea to eight counts of sexual assault,
    eight counts of making child pornography and one count of possession of child
    pornography. The sexual assault and making child pornography offences were
    committed against young children under the respondents care in a daycare
    centre. The Crown argues that the sentence the trial judge imposed failed to
    satisfy the principle of totality, ran afoul s. 718.3(7) of the
Criminal Code
because consecutive
    sentences were not imposed on some counts, overemphasized some mitigating
    factors, and was demonstrably unfit. The Crown asks us to impose a sentence of
    15 years.

[2]

For the following reasons, I would dismiss the
    appeal.

THE
    OFFENCES

[3]

In the course of a peer-to-peer child
    pornography investigation, the Peel Regional Police obtained a warrant and
    conducted a search of the respondents residence. The respondents computer was
    found to contain a massive amount of graphic and highly disturbing child
    pornography involving young prepubescent children, some in the form of still
    images and some in the form of videos. The police also found a folder labeled
    I Me Mine containing close-up images and videos taken by the respondent of
    the genitals of eight female toddlers between the ages of two and three years.
    Some images revealed male fingers touching the genital area of the children. In
    an agreed statement of facts filed on the sentencing proceeding, the respondent
    admitted that during the toddlers nap period when he was supervising them on
    his own, he pulled down their clothing and undergarments to expose their
    genitals and took close-up photographs with his phone while touching their
    genitals with one of his fingers.

THE
    OFFENDER

[4]

At the time of sentencing, the respondent was 38
    years old, single and had no prior criminal record. He lived with his mother
    and had worked at several daycare centres as an early childhood educator for a
    number of years. He maintained that the children were asleep when he sexually
    assaulted them and he filed written apologies for his conduct. He admitted that
    he had an unhealthy affection for the children, that he was addicted to child
    pornography, and that he had become obsessed with acquiring more and more
    images.

SENTENCING
    PROCEEDINGS

[5]

Sentencing submissions were made over the course
    of several days.

[6]

Parents of the child victims read victim impact
    statements indicating the profound effect these offences had upon them. The
    trial judge aptly summed up the effect of the victim impact statements in his
    reasons:

A common theme that resonated through the various messages was
    real and palpable  emotional destruction of trust. The statements were riddled
    with emotional moments that run the gamut from self-doubt and guilt to anger,
    and feelings of betrayal

[7]

The trial Crown argued that a sentence of 17 to
    19 years was the appropriate range but recommended a sentence of 15 years
    imprisonment to take into account the principle of totality and mitigating
    circumstances. The respondent asked for a global sentence of 6 years.

[8]

The trial judge gave oral reasons for imposing a
    global sentence of nine years, which comprised of six years for the sexual
    assaults, one year for making child pornography and two years for possession of
    child pornography.

ISSUES

[9]

The Crown raises the following issues on appeal:

1.

Did the trial judge err in his application and
    interpretation of the principle of totality?

2.

Did the trial judge err by failing to impose
    consecutive sentences pursuant to s. 718.3(7) of the
Criminal Code
?

3.

Did the trial judge err in his assessment of
    mitigating factors?

4.

Did the trial judge impose a sentence that was demonstrably unfit?

ANALYSIS

[10]

As I see it, there is a substantial overlap
    between issues 1, 2 and 4. In my view, the logical starting point for analysis
    of these issues is to consider the application of s. 718.3(7), then to consider
    the issues of totality and the fitness of the sentence, and finally to ask if
    any error was made with respect to the mitigating factors.

Criminal Code
, s. 718.3(7)

[11]

Section 718.3(7), introduced as part of the
Tougher Penalties for Child Predators Act
, S.C. 2015, c. 23, provides:

718.3(7)
When a court sentences an accused at the same
    time for more than one sexual offence committed against a child, the court
    shall direct

(a)
that a sentence of imprisonment it imposes for an
    offence under section 163.1 be served consecutively to a sentence of
    imprisonment it imposes for a sexual offence under another section of this Act
    committed against a child; and

(b)
that a sentence of imprisonment it imposes for a
    sexual offence committed against a child, other than an offence under section
    163.1, be served consecutively to a sentence of imprisonment it imposes for a
    sexual offence committed against another child, other than an offence under
    section 163.1.

[12]

This provision must be read alongside the
    fundamental sentencing principle expressed in s. 718.1 which states: [a]
    sentence must be proportionate to the gravity of the offence and the degree of
    responsibility of the offender and the totality principle enshrined in s.
    718.2(c) which states: where consecutive sentences are imposed, the combined
    sentence should not be unduly long or harsh.

[13]

Section 718.3(7) came into force on July 17,
    2015. The offences with which we are concerned in this appeal straddle that
    date. It is common ground that s. 718.3(7) applies to four pairs of counts of
    sexual assault and making child pornography against four victims. Each of those
    offences carries a minimum sentence of 1 year. In addition, the one count
    possession of child pornography is covered by s. 718.3(7). The mandatory
    minimum sentence that attaches to that offence was struck down by this court in
R. v. John
, 2018 ONCA
    702, 142 O.R. (3d) 670. As a result, the total of the mandatory minimum
    sentences to which s. 718.3(7) applies come to 8 years.

[14]

Four pairs of counts for sexual assault and
    making child pornography predate s. 718.3(7). The mandatory minimum sentence
    for those offences total 8 years but they are not governed by the requirement
    for consecutive sentences under s. 718.3(7) and therefore can be imposed
    concurrently.

[15]

I do not accept the Crowns submission that the
    sentence imposed by the trial judge was illegal because of s. 718.3(7) for
    the following reasons.

[16]

First, the total number of years required by
    mandatory minimums comes to 8 years, well within the 9 years imposed by the
    trial judge.

[17]

Second, the
Criminal Code
does not mandate a purely mechanical approach whereby all sentences
    governed by s. 718.3(7) must be simply added up and imposed. Both at trial and
    in oral argument before us, the Crown properly conceded that s. 718.3(7) is
    subject to the totality principle. Section 718.3(7) must be read together with
    s. 718.2(c) stating that where consecutive sentences are imposed, the combined
    sentences should not be unduly long or harsh. In
R.
    v. Ahmed
, 2017 ONCA 76, 346 C.C.C. (3d) 504, this
    court dealt with
s. 83.26 of the
Criminal
    Code
,
which provides that
    a sentence other than one of life imprisonment, imposed on a person for a
    terrorism offence, must be served consecutively to any other punishment imposed
    on the person for an offence arising out of the same event or series of
    events. This court, following the Supreme Court of Canada in
R. v.
    Khawaja
, 2012 SCC 69, [2012] 3 S.C.R. 555,
stated, at para.
    79:

The totality principle is a particular
    application of the general principle of proportionality. It requires a
    sentencing judge who orders an offender to serve consecutive sentences for
    multiple offences to ensure that the cumulative sentence rendered does not
    exceed the overall culpability of the offender. Following
M.(C.A.)
, the
    sentencing provisions in the
Criminal Code
were amended.
    Proportionality was included as the fundamental principle of sentencing (s.
    718.1) and sentencing courts were instructed to take into consideration the
    totality principle when imposing consecutive sentences to ensure that the
    combined sentence is not unduly long or harsh (s. 718.2(c)). The totality
    principle applies in sentencing persons convicted of terrorism offences.
    [Citations omitted.]

[18]

As I have noted, the mandatory minimum sentences
    applicable in this case by virtue of s. 718.3(7) total eight years. It was open
    to the trial judge to take into account the totality principle as a
    qualification on s. 718.3(7) when imposing the sentences for the other offences
    for which the mandatory minimums did not apply.

[19]

Nor do I agree that the trial judge erred in law
    by failing to advert specifically to s. 718.3(7) in his reasons for sentence.
    The trial judge was certainly alive to the possible application of 718.3(7) as
    the provision was the subject of detailed consideration in the sentencing
    submissions of counsel. Moreover, the trial judge did refer to 718.3(7)
    indirectly when reviewing the totality principle, by citing the passage I have
    quoted above from
Ahmed
.


[20]

The trial judge did not take as his starting point the determination
    of the appropriate sentence for each individual count and then add up all the
    count by count sentences to determine the global sentence, but rather
    identified the gravity of the conduct overall and then determined the total
    sentence that should be imposed
and then apportioned it to
    the various offences.

In so doing, he followed the
    practice approved by this court in
R. v. Jewell
(1995), 100 C.C.C. (3d)
    270 (C.A.) at p. 279;
R. v. R.B.
, 2014 ONCA 840, 327 O.A.C. 20, at para.
    8;
R. v. J.S.
, 2018 ONCA 675, 142 O.R. (3d) 81, at para. 66; and
R.
    v. Ahmed
, at para. 85. It would be an error in taking that approach to
    ignore the effect of s. 718.3(7). While it would have been preferable for the
    sentencing judge to specifically address s. 718.3(7), I am satisfied from reading
    the record as a whole including the sentencing submissions, that the trial
    judge was alive to the provisions of 718.3(7).

[21]

For these reasons, I conclude that the trial judge
    did not err
by failing to impose consecutive sentences for
    all offences pursuant to s. 718.3(7) of the
Criminal
    Code
.

Totality
    and fitness of the sentence

[22]

The Crown argues that the trial judge erred in
    his interpretation and application of the principle of totality and imposed a
    sentence that was demonstrably unfit. The Crown argues that a sentence of nine
    years imprisonment failed to address the cumulative gravity and moral
    blameworthiness of the respondents conduct.

[23]

There can be no question that these were very
    serious offences that called for a substantial prison sentence. The victims of
    the sexual assault and making child pornography were defenseless toddlers. The
    respondent was entrusted with their care. He abused his position of trust to
    satisfy his sexual cravings. The victim impact statements powerfully
    demonstrate the harm caused to the families of the victims. The quantity of
    child pornography in the respondents possession was massive. The content was
    disturbing in the extreme. It depicted scenes of sexual abuse on a very large
    number of children who were the victims of an entirely evil industry.

[24]

It is well-established in the case law that
    crimes of this nature call for sentences that emphasize deterrence and
    denunciation: see
R. v. J.S
.

[25]

In my view, the trial judges reasons indicate
    proper awareness of both the gravity of the crimes for which the respondent was
    being sentenced and the legal principles bearing upon the appropriate sentence.
    He observed that his primary consideration should be given the objectives of
    denunciation and deterrence and that the gravity of the offence is properly
    the central factor. He reviewed the victim impact statements and was fully
    aware of the devastating impact of the crimes. He described the respondents
    conduct as an egregious breach of trust and his crimes as heinous.

[26]

The trial judge described the harm caused by the
    respondent and the message that had to be sent by the sentence imposed by
    referring to and applying the statement of this court in
R. v. D.
(D.)
(2002)
,

58 O.R. (3d) 788 (C.A.),
    at para. 45:

The appellant was
    prepared to risk the lives of innocent children to satisfy his sexual cravings.
    His conduct was reprehensible and it must be condemned in the strongest of
    terms. The harm occasioned by the appellant and others like him is cause for
    grave concern. Children are robbed of their youth and innocence, families are
    often torn apart or rendered dysfunctional, lives are irretrievably damaged and
    sometimes permanently destroyed. Because of this, the message to such offenders
    must be clear  prey upon innocent children and you will pay a heavy price!

[27]

I do not agree with the Crowns submission that
    the trial judge erred by placing reliance on
R. v. D.(D.).
In that case,
    this court upheld a sentence of nine years and one month for the sexual abuse
    of four young boys over a seven-year period. The offender had abused a position
    of trust with families, groomed the boys over a lengthy period, and regularly
    engaged in all manner of sexual activity including anal intercourse. He used
    violence and threats of violence to compel compliance and keep the boys quiet. Despite
    the differences in these crimes, the passage the trial judge quoted from
R. v D.(D.)
was nevertheless pertinent
    to sentencing on sexual offences involving children. Further, given the gravity
    of the crimes committed in
R. v. D.(D
.
)
against children, I fail to see why
    this case calls for a longer sentence.

[28]

I agree with the Crown that sentences for sexual
    offences involving young children and child pornography have been increasing:
    see
R. v. J.S.
;
R. v. L.M.
,
2008 SCC 31, [2008] S.C.R. 163. However, I am satisfied that the
    nine-year sentence imposed by the trial judge is consistent with that pattern.
    The 18-year sentence upheld by this court in
J.S.

post-dated the sentencing proceedings
    in this case and there are several distinguishing factors. First, that case
    involved an offender who recorded acts against his three infant nieces of
    attempted anal and vaginal penetration with an erect penis, digital
    penetration, penetration with a marker, digital masturbation and cunniligus.
    That conduct is even more disturbing than the conduct at issue here. Second,
    that case did not involve this court overturning a sentence imposed at trial
    and it is clear from the courts reasons that deference to the sentencing
    discretion of the trial judge was a primary factor. Third, the court observed,
    at para. 123, that the 18-year sentence was at the high end of the range for
    such offences, and possibly in excess of the range but that it was not the
    product of an error in principle. The refusal of this court to set aside the 18-year
    sentence does not establish 18 years as a benchmark for future cases.

[29]

The sentence in this case was not demonstrably unfit.

Mitigation

[30]

The Crown submits that the trial judge erred in
    determining that certain factors were mitigating, citing the following
    paragraph from his reasons:

[S.C.] is a first-time offender. He has [
sic
] the court time, and resources have been saved. He appears to be a
    good candidate for rehabilitation and none of the victims suffered physical
    injury or required mental treatment. No physical violence was used by [S.C.]
    during the course of the sexual assaults of the eight victims. There was no
    evidence that the downloads were unusually brutal.

[31]

The Crown submits that the lack of need for
    medical treatment is not a mitigating factor, that sexual assaults are
    inherently violent, and that while brutality can be an aggravating factor, the
    lack of brutality is not mitigating.

[32]

In my view, the passage quoted by the Crown must
    be read together with the immediately preceding paragraph where he refers to
    the aggravating factors.  In that paragraph he recites the massive amount of
    pornography found on the respondents computer, the fact that the assaults took
    place while the children were sleeping, that the respondent was in a position
    of trust, the number of victims and their young age and the potential for
    latent psychological damage.

[33]

I have already referred to the passages from the
    trial judges reasons that indicate his awareness of the gravity of the
    offences. The Crown may be correct in pointing out that some of the points
    listed under the heading mitigating factors were not strictly speaking
    mitigating. However, they were relevant to the assessment of the gravity of the
    respondents conduct and, when read in the context of the reasons as a whole,
    do not reveal any legal error.

[34]

I add that there were significant mitigating
    factors. The respondent pleaded guilty thereby saving the victims, their
    families and the system the cost and trauma of a trial. The respondent was a
    first offender and he expressed remorse. He has faced the fact that he has a
    serious problem that needs to be addressed and he has expressed a willingness
    to undergo treatment. The institutional records filed as fresh evidence, which
    I would admit, indicate that he is ready and willing to follow programs that
    will assist in rehabilitation.

Conclusion

[35]

As the Crown acknowledges in its factum, it is
    well established that sentencing decisions attract a high level of deference.
    Absent an error in principle or a failure to consider a factor relevant to an
    aggravating or mitigating factor, this court is not entitled to intervene
:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 43-44
. The trial judge recognized that deterrence and denunciation were
    the primary sentencing objectives in this case. As a consequence, he imposed a
    very substantial penitentiary sentence of nine years. He did so to denounce the
    respondents conduct and to deter the respondent and others from committing
    offences against children in the future. That sentence took into account the
    gravity of the respondents conduct and moral culpability. The message the
    nine-year sentence sent is loud and clear. I am not persuaded that the longer

sentence
    sought by the Crown at trial and on appeal would appreciably add to the
    deterrent effect of the sentence that was imposed. A longer sentence could
    discourage guilty pleas and undermine the interest of rehabilitation. In my view,
    the trial judge was entitled to conclude that the sentence sought by the Crown
    would not be consistent with the principles of proportionality and totality.

[36]

For these reasons, I would dismiss the appeal.

Released: MLB March 13, 2019

Robert
    J. Sharpe J.A.

I
    agree. M.L. Benotto J.A.

I
    agree. David Brown J.A.


