



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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. Rule, 2021 ONCA 499

DATE: 20210706

DOCKET: M52571 (C69544)

Brown J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Arthur Rule

Applicant

Fredrick R. Schumann, for the applicant

Adam Wheeler, for the respondent

Heard: June 18, 2021 by video conference

ENDORSEMENT

A.

OVERVIEW

[1]

The applicant, Arthur Rule, applied for leave to
    appeal his custodial sentence and bail pending appeal. The following
    endorsement was read at the end of the hearing on June 18, 2021:

For reasons to follow, the application for
    leave to appeal sentence and the application for bail pending appeal are
    granted. The terms of bail shall be those in the draft order submitted by
    counsel.

[2]

These are those reasons.

[3]

Mr. Rule is 71 years old. He pleaded guilty to
    three counts of possessing and one count of accessing child pornography,
    contrary to ss. 163.1(4) and (4.1) of the
Criminal Code
. By reasons
    dated May 4, 2021, the sentencing judge concluded that the appropriate sentence
    was a term of imprisonment for a period of 22 months, concurrent on all counts,
    followed by probation for three years. She deferred the imposition of sentence
    until June 18, 2021.

[4]

Mr. Rule applied for leave to appeal sentence
    and, if leave were granted, bail pending appeal. The Crown did not oppose Mr.
    Rules application for leave to appeal his sentence:
Criminal Code
, s.
    675(1)(b). I therefore granted leave to appeal.

[5]

The contested matter at the hearing was Mr.
    Rules application for bail pending appeal:
Criminal Code
, s. 679(4). The
    Crown acknowledged that Mr. Rules sentence appeal is not frivolous.
    However, it opposed the application on two grounds: (i) the sentence appeal
    lacks sufficient merit that, in the circumstances, it would not cause
    unnecessary hardship if the applicant were retained in custody; and (ii) the
    applicant has not demonstrated that his detention is not necessary in the
    public interest.

B.

BACKGROUND

[6]

The applicant is a retired teacher who lives in
    Kenora. Prior to his conviction on these charges, he had no criminal record.

[7]

A police investigation resulted in the search of
    Mr. Rules home and the seizure of his computer. As described by the sentencing
    judge, at paras. 9-11:

The items seized from Mr. Rules computer
    revealed a vast collection of images and videos of children being sexually
    abused and exploited. Over 100,000 images and videos were examined by the OPP
    child sexual exploitation unit. The police categorized 22,429 images, 204
    movies or videos and determined these images fit the definition of child
    pornography. 92,984 images were not categorized, but the Crown noted these
    items would have met the criteria for child pornography.

Approximately two thirds of the material focus
    on the genitals of the children depicted. One third of the images depict persons
    under the age of 18 engaged in graphic sexual activity. There appeared to be a
    preponderance of images involving prepubescent girls and less so of boys under
    age 18. The additional 92,000 + images were not categorized because of the time
    and resources needed to fully examine the contents of Mr. Rule's extensive
    collection.

In addition, the police noted that Mr. Rule's
    screen saver on the computer was an image of a prepubescent girl, naked with
    her legs spread. He had the other images and videos saved under various folders
    on his computer.

C.

ANALYSIS

[8]

Under
Criminal Code
s. 679(4)(a), the
    applicant must establish that his appeal has sufficient merit that, in the
    circumstances, it would cause unnecessary hardship if he were detained in
    custody. The extent of the inquiry into the merits of the appeal under that
    criterion has variously been described as asking whether the appeal has
    arguable merit, some hope or prospect of success, or it is more probable
    than not that a successful sentence appeal would result in a significantly
    lower sentence:
R. v. McIntyre
, 2018 ONCA 210, at para. 24;
R. v.
    Hewitt
, 2018 ONCA 293, at para. 18.

[9]

In his notice of appeal, the applicant argues
    that the custodial sentence of 22 months was demonstrably unfit for two main
    reasons: (i) the sentencing judge erred in not granting a conditional sentence;
    and (ii) she disregarded the evidence of Mr. Rules health problems, the care
    he requires, and the hardship incarceration would impose.

[10]

On the issue of the availability of a conditional
    sentence, the Crown concedes that the sentencing judge mis-stated the law when
    she wrote, in para. 47:

Section 163.1 (4)(a) of the
Criminal Code
sets out a range of punishment for offenders on indictment to be a minimum of
    12 months to a maximum of 10 years imprisonment for accessing child
    pornography. The
Criminal Code
also sets out that conditional
    sentences are not available for offenses under this section. I have reviewed
    the jurisprudence provided by counsel, all the relevant post-
Friesen
jurisprudence, and the amendments to the
Criminal Code
, in the result,
    I cannot entertain a conditional sentence here.

[11]

In fact, the former 6-month minimum for
    possession of child pornography was struck down by this court in
R. v. John
,
    2018 ONCA 702, 142 O.R. (3d) 670, as violating s. 12 of the
Canadian
    Charter of Rights and Freedoms
. As well, in subsequent cases, in light of
John
the Crown has conceded the likely unconstitutionality of the minimum sentence
    for accessing child pornography in
Criminal Code
s. 163.1(4.1): see,
    for example,
R. v. Rytel
, 2019 ONSC 5541, at para. 8. As
    this court observed in
R. v. M.N.
, 2017 ONCA 434, 37 C.R. (7th) 418,
    at para. 40, the identical penalties for accessing and possession of child
    pornography indicate a legislative view that the moral culpability for the two
    offences is the same.

[12]

Although the sentencing judge returned to the
    issue of the availability of a conditional sentence later in her reasons, she
    proceeded on the basis that a conditional sentence would offend the
    proportionality principle and not constitute a fit sentence because of the
    requirements set out in the
Criminal Code
, the nature of the offences,
    and recent jurisprudence: at para. 57.

[13]

The applicant submits that the sentencing judge
    failed to adequately consider a conditional sentence as an alternative to
    incarceration, as required under the statutory principle of restraint in s.
    718.2(e) of the
Criminal Code
. Given that her analysis got off on the
    wrong legal footing, there certainly is merit in this submission.

[14]

Indeed, there is sufficient merit that, in the
    circumstances, it would cause Mr. Rule unnecessary hardship if he were detained
    in custody. Mr. Rule suffers from several medical conditions. One is rectal
    cancer, for which Mr. Rule has received chemotherapy and radiation treatment.
    As a result of cancer-related surgery, Mr. Rule has to wear an ostomy bag. In
    his affidavit, he describes the daily challenge of wearing an ostomy bag:

The ostomy bag needs to be changed frequently.
    This involves the following:

(a) In my bathroom, pulling the pouch off
    while sitting on a toilet to catch any spillage;

(b) Cleaning the stoma site with warm
    water;

(c) Waiting for the excretions from the
    site to stop;

(d) Moving to the dining room where I keep
    the ostomy equipment;

(e) Using a mirror to see the underside of
    the hernia (described below), and using scissors to cut out the portion of the
    ostomy pouch that fits overtop;

(f) Further cleaning and drying the skin
    around the stoma;

(g) Applying a glue sealer to the ostomy
    pouch;

(h) Pressing the pouch into place on my
    stomach;

(i) Lying down and pressing on the pouch
    with my hand for around fifteen minutes to use heat to seal the glue; and

(j) Applying special elastic tape on the
    outside of the pouch to further attach it to my body.

Generally this process is required once a day,
    but it may be twice a day, or once every two days. The time that the changing
    is required is not at all predictable, and may be any time of the day or night.

I need a great deal of equipment for the
    ostomy care. It takes up the surface of my dining room table.

I have experienced some internal leakage at
    the site of the operation where my intestines were affected. This leakage has
    caused excretions of fecal matter and blood from my rectum. This is called an
    anastomosis. There is also a hernia underneath the stoma site, meaning that
    some of my internal organs are pushing through a hole in my abdominal muscles.
    The result is a large lump at the stoma site the size of half a grapefruit.

[15]

While the sentencing judge acknowledged the need
    for this daily procedure, she was satisfied that [t]his regimen can be
    addressed in a correctional facility as it is the states responsibility to
    protect and provide proper medical care for those in its care or custody.
    Although the Crown submitted that the correctional facility could accommodate
    Mr. Rules medical needs, given their extraordinary nature I concluded that it
    would cause Mr. Rule unnecessary hardship if he were detained in custody.

[16]

As to the criterion in
Criminal Code
s.
    679(4)(c) that Mr. Rule establish his detention is not necessary in the public
    interest, a qualitative and contextual assessment is required to resolve the
    balance between enforceability and reviewability:
R. v. Oland
,
    2017 SCC 17, [2017] 1 S.C.R. 250, at para. 49. While, as the Crown submits, the
    offences for which Mr. Rule has been convicted are very serious ones, I
    conclude that this is a case where the public interest in reviewability
    overshadows the enforceability interest: there are no public safety or flight
    concerns, and the grounds of appeal clearly surpass the not frivolous
    criterion:
Oland
, at para. 51.

[17]

For these reasons, I granted Mr. Rules
    application for bail pending appeal.

David
    Brown J.A.


