


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), (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    that could identify the complainant or a witness shall not be published in any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, 172,
    172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or
    347,

(ii)  an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151
    (seduction of a female between 16 and 18), 153 (sexual intercourse with
    step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent
    or guardian procuring defilement) or 167 (householder permitting defilement) of
    the
Criminal Code
, chapter C-34 of the Revised Statutes of Canada,
    1970, as it read immediately before January 1, 1988; or

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

(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 complainant of the right to
    make an application for the order; and

(b)  on application made by the complainant, the prosecutor
    or any such witness, 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).

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.







CITATION: R. v. P.M., 2012 ONCA
          162



DATE:
          20120316



DOCKET:
          C52760



COURT
          OF APPEAL FOR ONTARIO



Rosenberg,
          MacPherson and Epstein JJ.A.



BETWEEN:



Her
          Majesty The Queen



Applicant
          /Appellant



and



P.M.



Respondent



Lisa Joyal and
          Lisa Henderson, for the appellant



Catriona
          Verner, for the respondent



Heard:
          September 7, 2011



On appeal from
          the sentence imposed by Justice Stephen J. Hunter of the Ontario Court of Justice,
          dated September 7, 2010, with reasons delivered orally.



Rosenberg J.A.:

[1]

This Crown appeal from sentence for serious sexual offences imposed by
    Hunter J.  raises two issues.  The first deals with the trial judges
    management of the sentence hearing and whether the trial judge was required to
    view a disc containing images of child pornography tendered by the Crown as
    evidence of the commission of several of the offences.  The second issue
    concerns the fitness of a total effective sentence of six years imprisonment
    for these serious offences.

[2]

In my view, the trial judge did not err in refusing to view the disc. I
    have also not been persuaded that the trial judges global sentence of six
    years imprisonment is manifestly inadequate. Accordingly, while I would grant
    leave to appeal, I would dismiss the appeal.

THE FACTS

[3]

Over a period of approximately 13 months the respondent had forced anal
    and vaginal intercourse with his daughter, who was then 13 and 14 years of
    age.  There were approximately ten incidents.  In her statement to the police,
    the victim described three of the most recent incidents:

The
    victim was wearing her school uniform, kneeling on the floor of her bedroom,
    and looking for something. The respondent entered her room, ordered her onto
    her bed, removed her clothing, and forced vaginal intercourse on her. Her 8
    year old brother was home at the time.

The
    victim was watching television in the living room one day when the respondent
    removed her pants and instructed her to get onto her hands and knees.  She
    cried and said no, but the respondent forced anal intercourse on her and
    ejaculated on her back.

The victim stayed home from school one
    day because she was sick. When the respondent came home during his lunch hour,
    he gave her that look and went to get his digital camera. He then removed her
    pyjama bottoms and forced sexual intercourse on her.

[4]

The offences came to light when the victim told a friend about the
    abuse.  The friend in turn told a school counsellor who notified the police.
    The police executed a search warrant at the respondents home and seized two
    computers and some photographic equipment.  The computers contained 1,837
    images of child pornography, including photographs of children posing nude, and
    engaged in forced sexual activity like fellatio and intercourse.  The police also
    found three videos and five still images of the complainant on the respondents
    computer.  The videos show the respondent masturbating and ejaculating on the
    victim, as well as forcing vaginal and anal intercourse. Throughout two of the
    videos, the victim is heard to repeatedly beg her father, Daddy please stop.
    The respondent replies, shut up and shut the fuck up.

[5]

The police also found a number of weapons and a box of ammunition.  The
    police seized three long guns that were not stored safely or registered. There
    is no suggestion that the weapons played any part in the sexual abuse of the
    victim.

[6]

As a result of the complaint from his daughter and the police
    search, the respondent was charged with a number of sexual and other offences. 
    He pleaded guilty to
sexual assault, incest, sexual interference,
    making child pornography, possession of child pornography and careless storage
    of a firearm.  The trial judge imposed a sentence of five years for the various
    sexual offences involving the respondents daughter, one year consecutive for
    the child pornography offences and six months concurrent for the firearms
    offence making a total sentence of six years.  He then deducted 22 months as
    credit for 11 months of pre-sentence custody.  Thus, the actual sentence to be
    served was 50 months imprisonment.

The Circumstances of the Respondent

[7]

The respondent is 37 years of age and has no
    prior criminal record.  He has a high school education.  After briefly working
    for his father, he joined the Canadian military in 1996 as an infantryman,
    reaching the rank of Master Corporal.  He has also received training as a
    construction technician.  At the time of sentencing, he was about to be
    discharged from the military as a result of his convictions.  The respondent
    married his wife in 1999.  He had a relationship with her for many years before
    their marriage and was step-father to his wifes 18 year-old-son.  In addition
    to the victim, the respondent and his wife also have an 11 year-old son. The
    respondents family have continued to support him.  The respondent was held in
    high regard in the military.

[8]

Two psychological reports were presented to the
    trial judge.  One, by Dr. Conroy, was prepared for Veterans Affairs Canada
    and deals with whether the respondent was suffering from post-traumatic stress
    disorder as a result of his military service in Bosnia and Afghanistan.  The
    second report, prepared by Dr. Eccles, was ordered by the trial judge and deals
    with the respondents risk of re-offending.  A comprehensive pre-sentence
    report was also before the trial judge.

[9]

The respondent comes from a dysfunctional
    family.  His parents were alcoholics and separated when the respondent was 13
    years-old.  Although the respondent was in an emotionally abusive environment,
    there was no suggestion that he was sexually abused as a child.

[10]

The respondent was deployed to Bosnia for seven months in 2000.  This deployment seems to have been uneventful.  He was deployed to
    Afghanistan for six months in 2002 and again for six months in 2008.  These
    were combat missions during which the respondent was subject to constant
    stress.  His 2002 mission was the first Canadian combat mission to suffer casualties
    in Afghanistan.  During the 2008 mission, 23 Canadian soldiers were killed.

[11]

While the respondent began to drink as a
    teenager, his drinking became much heavier after the first Afghanistan
    mission.  He particularly noticed changes after the second mission with
    deteriorating sleep, nightmares, and periods of dissociation.  While in Afghanistan, the respondent was prescribed the anti-malaria drug Mefloquine.  He began to
    experience vivid dreams, a common side-effect of the drug.  The respondents dreams
    were of a sexual nature, often including his wife, the victim and another
    female relative. He used these sexual fantasies to help him zone out.  He
    would take more of the medication when he was stressed out.  He continued to
    use the drug for the same purpose when he returned to Canada.

[12]

Dr. Conroy was satisfied that the respondent met
    the DSM-IV diagnostic criteria for post traumatic stress disorder with symptoms
    in the mild to moderate range. He also met the criteria for a major depressive
    disorder in the moderate range, which was probably related to his inappropriate
    sexual behaviour and legal difficulties.  He had some suicidal thoughts.  Dr.
    Conroy did not believe that either the PTSD or the use of Mefloquine were
    direct causes of the sexual abuse of the victim.  They may, however, have
    contributed to the commission of the offences.  Dr. Conroy recommended that the
    respondent receive treatment for anger management, PTSD, depression, substance
    abuse and sexual behaviour.

[13]

Dr. Eccles agreed with the diagnosis of PTSD and
    depression.  He found the respondent to represent a low to moderate risk to
    re-offend, provided he had limited access to children.  There were troubling
    aspects to Dr. Eccles findings.  The respondent committed the offences in a very
    cold and callous manner, ignoring the victims crying and pleas for him to
    stop.  This lack of sensitivity continues and is reflected in a profound lack
    of appreciation for the potential impact of his behaviour on his daughter.  He
    likely has paedophiliac proclivities that present a long-term management
    issue.  He should not have any further contact with the victim until he has
    developed a far more realistic perspective on the impact of the abuse on her.
    Dr. Eccles was of the view that the respondent required treatment in an
    institutional setting in the federal system before he is released to the
    community.  When released, the respondent should be prohibited from being at
    any venue where children congregate.  While such a condition is not always required
    in cases of familial abuse, the respondents case had aggravating features
    including the production and possession of child pornography.

The View of the Victim

[14]

The victim and her mother both filed letters
    that were supportive of the respondent.  The victim did not want the respondent
    to go to jail.  She noticed a change in him after he returned from Afghanistan
    and felt he needed to be in hospital.  She did not believe she could ever trust
    him again, or forgive him, but she believed he would not have committed the
    offences if he wasnt sick.  The victim initially received some counselling
    after disclosing the abuse. However, she terminated the counselling after only
    a few sessions.

The Viewing of the Disc

[15]

The police had prepared a disc that contained a
    sampling of the child pornography that had been found on the respondents
    computer as well as the videos the respondent had made while sexually
    assaulting the victim.  Crown counsel sought to have the disc made an exhibit
    and for the trial judge to view the contents of the disc.  Crown counsels
    position was that the sitting judge needs to actually view and appreciate the
    images that have been described  and cannot adequately understand the impact
    they might have without actually viewing them.  The trial judge expressed
    reluctance to view the disc, in part, because the disc would have to be played
    in open court.  He was also aware that the victim was present in the courtroom.
    The trial judge was interested in her views since he thought it unlikely that he
    could, or should, exclude her from the courtroom during the sentence
    proceedings.  The trial judge was later informed that the victim did not want
    the disc viewed.

[16]

Counsel for the respondent opposed the playing
    of the disc and argued that the trial judge had discretion not to admit the
    disc into evidence on the basis that the prejudicial effect outweighed the
    probative value.  In the course of submissions, the trial judge placed on the
    record that he had been counsel for the Childrens Aid Society for 15 years and
    then sat as a judge for almost 20 years.  He had viewed countless videos of a
    similar nature and worse, such as a three year old child being subjected to
    full intercourse.

[17]

The trial judge ruled that it was not necessary
    for him to view the video to properly understand and comprehend the impact of
    the acts of the respondent.  He again referred to his experience as CAS counsel
    and as a trial judge.  He took into account that the respondent had admitted
    his behaviour and, in specific terms, had accepted the facts as alleged by the
    Crown.  In his view, the prejudicial effect of the viewing to the victim far
    outweighed the probative value to the court being mindful of the sensitivity
    of the complainant/victim in this matter and the awareness of the Court of the
    nature and circumstances of what is in that video.  He concluded as follows:

In my view, it would not serve the
    ends of justice in the totality of my considerations for me to necessarily view
    the contents of that CD in open court, even were I to exclude most of the
    public.  I am satisfied that the Court is properly apprised of the nature and
    circumstances of the impact, bearing in mind, particularly, the reports that
    have been prepared for pre-sentence purposes and having read both the letters
    from the victim and her mother as well.

The Trial Judges Reasons for Sentence

[18]

The trial judge found the respondents case
    perplexing and tragic.  What he had done to the victim went far beyond the
    physical acts, which in themselves were callous, brutal acts of sexual
    gratification.  The abuse undermined the victims trust in her father.  The
    trial judge continued as follows:

You may be sick and ill, as described
    by [the victim], your wife, and in some respects the medical reports I have,
    but you knew what you were doing, you knew who you were doing it to and you
    continued to do that. It is repulsive and it is something that society abhors
    and wishes this Court to denunciate in clear and specific terms.

[19]

While he had not viewed the disc, the trial
    judge stated that he fully appreciated the nature of the events and the
    specific aspects as they related to the victim.

[20]

The trial judge was satisfied that the
    respondent was extremely remorseful.  He found that while the PTSD and the
    malaria medicine did not condone or explain what the respondent did, they were
    part of what brought you to where you are today.  The trial judge gave the
    respondent credit for pleading guilty, thus saving the victim from having to
    testify, and for having accepted responsibility for these acts from the outset.
    He noted that the respondent was a low to moderate risk of re-offending.  The
    trial judge recognized that although the respondent was willing to take
    treatment, there were clear impediments to that treatment especially because of
    his lack of insight into the impact of the abuse on the victim.

ISSUES

[21]

The Crown raises the following issues:


(1)

The trial judge erred in principle in
      failing to watch the child pornography exhibit

(2)

The
      trial judge failed to appreciate the overall gravity of the multiple offences

(3)

The
      trial judge gave undue emphasis to the mitigating circumstances

(4)

The
      total sentence of six years imprisonment was unfit


The Child Pornography Exhibit

[22]

The Crowns principal submission on this appeal
    was that the trial judge erred in refusing to view the disc containing the
    child pornography and the videos of the appellant sexually assaulting the
    victim. Crown counsel argued that, having admitted the disc as an exhibit, the
    trial judge was bound to view that exhibit as he would any other piece of real
    evidence.  Alternatively, if the trial judge did not admit the disc as an
    exhibit then he erred in failing to do so.

[23]

An issue arose at the hearing of the appeal as
    to whether the trial judge had in fact admitted the disc as an exhibit.  In my
    view, he marked the disc for identification but did not admit the disc as
    evidence.  Just prior to the excerpts from the trial judges reasons set out in
    paragraph 17 of this decision, the trial judge said the following: I will file
    it and give it an exhibit number for identification, should it become important
    at a later date in another court. I do not intend to view it. Then, in his
    reasons the trial judge indicated that he found that the prejudicial effect of
    admitting the evidence outweighed its probative value. This is the language of
    exclusion of evidence.

[24]

Since the trial judge refused to admit the disc
    as evidence, the Crown appeal raises two questions.  First, whether the trial
    judge has the discretion to refuse to admit relevant evidence at a sentence
    hearing; and second, if the judge does have such discretion, whether it was
    properly exercised in this case.

[25]

Section 723 of the
Criminal Code
provides that before determining the sentence, the court shall give the
    prosecutor and the offender the opportunity to make submissions with respect to
    any facts relevant to the sentence imposed, and shall hear any relevant
    evidence presented by the prosecutor and the offender.  Further, s. 726.1
    provides that in determining the sentence, a court shall consider any
    relevant evidence placed before it. Nevertheless, in my view, a trial judge at
    sentencing should exclude otherwise relevant evidence proffered by the Crown
    where the prejudicial effect of the evidence outweighs its probative value.

[26]

In
R. v. Angelillo
, 2006 SCC 55,
    [2006] 2 S.C.R. 728 at para. 32, Charron J., speaking for the majority of
    the court, had to consider the admissibility at the sentence hearing of
    evidence showing the commission of other offences than those for which the
    offender was being sentenced. After referring to several sections of the
Criminal
    Code
, including ss. 723 and 726.1, Charron J. confirmed
    that at the sentence hearing the trial judge
can and must exclude
    otherwise relevant evidence if its prejudicial effect outweighs its probative
    value such that the offender's right to a fair trial is jeopardized.

[27]

In
    deciding whether the prejudicial effect of the prosecution evidence outweighs
    its probative value the judge must consider any number of relevant factors. The
    weight to be accorded the various factors is primarily a matter for the
    sentence judge and thus the judges decision is entitled to deference.  This
    deference is part of the broader deference owed to trial judges in managing the
    sentence hearing and determining the sentence.  The Supreme Court of Canada has
    repeatedly recognized that appellate courts owe considerable deference to the
    trial judges decision as to the quantum and type of sentence.  For example, in
R. v. Shropshire
,
[1995] 4 S.C.R. 227 at para. 46:

An appellate court should not be given
    free reign to modify a sentencing order simply because it feels that a
    different order ought to have been made. The formulation of a sentencing order
    is a profoundly subjective process; the trial judge has the advantage of having
    seen and heard all of the witnesses whereas the appellate court can only base
    itself upon a written record. A variation in the sentence should only be made
    if the court of appeal is convinced it is not fit. That is to say, that it has
    found the sentence to be clearly unreasonable.

[28]

In
R. v. M. (C.A.)
,
[1996] 1 S.C.R. 500, Lamer C.J.
    explained the functional justification for this deference, even where there has
    not been a full trial because the offender has pled guilty. In particular he
    noted, at para. 91, that:

A sentencing judge still enjoys a
    position of advantage over an appellate judge in being able to directly assess
    the sentencing submissions of both the Crown and the offender. A sentencing
    judge also possesses the unique qualifications of experience and judgment from
    having served on the front lines of our criminal justice system.

[29]

In my view, this functional justification
    applies as much to the conduct of the hearing, including the decision as to
    whether the prejudicial effect of the proposed evidence outweighs its probative
    value, as it does to the ultimate decision of quantum.  The trial judge, by
    reason of 
experience and judgment from having served on the front lines
    of our criminal justice system,
is in the best position to
    decide what evidence is required to determine a fit sentence and to decide how,
    and in what manner, the evidence should be received.  It is hardly for this
    court to decide how the trial judge presiding over a busy trial court should
    manage sentence hearings.  Provided the judge exercises the discretion
    reasonably and gives the parties the opportunity to fully present their
    positions, this court ought not interfere.

[30]

That brings me to the second issue. Ms. Joyal,
    for the appellant Crown, argues that the prejudicial effect did not outweigh
    the probative value of the evidence. In finding to the contrary, the trial
    judge took into account irrelevant considerations and failed to appreciate the
    true probative value of the proposed evidence.

[31]

In my view, it was open to the trial judge to
    find that the prejudicial effect of the disc outweighed its probative value. 
    There is no doubt that the material on the disc was relevant.  With respect to
    the child pornography charges, the disc contained copies of the material that
    constituted the conduct that was the subject of the charges.  As for the sexual
    offences, the disc contained direct evidence of the commission of the
    offences.  Thus, I agree that ordinarily the judge should view this kind of evidence
    if asked to do so.  This was the view of the Alberta Court of Appeal in the
    Memorandum of Judgment in
R. v. Hunt
, 2002
    ABCA 155,
166 C.C.C. (3d) 392
at para. 16:

Ordinarily, a sentencing judge would
    be expected to review photographs that depict the crime. By definition, such
    photographs are relevant. In this case, the photographs do not depict the crime
    - they are the crime. That is, the
actus reus
of this offence is making, printing,
    publishing, or possessing photographic representations of someone under
    eighteen years engaged in explicit sexual activity. Thus, they are relevant.
    Being relevant, they should have been reviewed by the sentencing judge unless
    some other exclusionary rule applied. Counsel for the respondent did not
    suggest the prejudicial effect outweighed the probative value. We doubt such an
    argument could be made when dealing with the
actus reus
of the crime. So the argument must
    come down to some sort of estoppel against the Crown.

[32]

In
Hunt
, the
    offender had argued that the images should not be viewed because the parties
    had entered into an agreed statement of facts and the Crown was barred from
    going beyond that statement of facts.  The court considered that argument and
    found that there was no agreement that prevented the Crown from entering the
    images into evidence at the sentence hearing.

[33]

I also agree with the views expressed by Molloy
    J. in
R. v. Kwok
,
[2007] O.J. No. 457
regarding the need for the court to understand the nature of the
    offence committed and the contribution that actually viewing the material can
    lend to that function.  As she said at para. 48: While the description in
    words of such disturbing images is shocking, nobody can fully appreciate the
    sickening horror of such pornography without actually looking at it.

[34]

In this case, the trial judge was presented with
    a difficult and troubling issue.  The images copied on to the disc contained
    video of the victim actually being assaulted by the offender.  The victim was
    present in court and the trial judge was of the view that she had the right to
    be present during the proceedings. The judge was also of the view that the
    offenders right to be present during the proceedings required that if the
    judge was to view the disc he would have to do so in the offenders presence
    and, it followed, in the victims presence. It would have been open to the
    judge to take steps to limit the exposure of the child pornography, including
    the images of the assaults on the complainant, to the public. Even so, the
    viewing of the disc showing the sexual assaults of the victim could cause
    additional trauma to the victim. The judge was sensitive to this fact and this
    was a proper consideration.

[35]

The judge also had to consider the probative
    value of the proposed evidence. There was no dispute about the facts. The
    contents of the disc had been described in detail. The judge had extensive
    experience with child pornography in his practice and then as a judge. He was
    aware of what the disc contained. In the words of Molloy J., because of this
    experience he could 
fully appreciate the sickening horror of such
    pornography.

[36]

The appellant makes much of the fact that the
    trial judge sought the views of the victim as to whether he should look at the
    contents of the disc. Counsel argues that the trial judge should not have let
    the views of the victim determine the decision. But this is not what occurred. 
    While the trial judge sought the views of the victim, he made it abundantly
    clear that it was his decision not hers. It was not wrong for him to take those
    views into account. He did not defer to her wishes. The courts are becoming
    increasingly more sensitive not just to the impact of crimes upon the victim,
    but of the criminal process itself. It is not wrong for the trial judge to
    involve the victim in the process, provided that involvement does not interfere
    with the orderly presentation of the case, or unfairly interfere with the
    rights of the parties to a fair hearing.

[37]

I have not been persuaded that there is reason
    to interfere with the trial judges view that the prejudicial effect of the
    evidence outweighed its probative value in the unusual circumstances of this
    case. I am also satisfied that the Crown was able to adequately present its
    case at the sentence hearing. I would not give effect to the Crowns principal
    ground of appeal. I now turn to the grounds of appeal that concern the fitness
    of the sentence imposed.

The trial judge failed to appreciate
    the overall gravity of the multiple offences

[38]

The appellants submission on this ground of
    appeal is that the trial judge failed to appreciate the gravity of the multiple
    offences. The main point made by the appellant is that the respondent not only
    sexually assaulted the victim; he made videos of the offences. This distinct
    offence of making child pornography was extremely serious and, on its own,
    required a denunciatory sentence. The trial judge, however, was well aware of
    this aspect of the case. Crown counsel at trial made this point repeatedly in
    her submissions and the trial judge indicated his understanding of this
    position during those submissions. In response to the Crowns submissions, the
    trial judge expressed the opinion that the respondents behaviour was
    extremely callous.  However, the trial judge also understood that since it
    was the same victim for the sexual offences and the making of child
    pornography, the sentence had to be a global one.

[39]

I agree with that characterization of the issue.
    The making of child pornography was both an offence on its own, and a serious
    aggravating factor of the sexual offences. In spite of this, the respondent
    could not be punished twice for the same act.  See
R. v. Woodward
, 2011 ONCA 610 at para. 48. The trial judge faced the problem of
    creating a global sentence that properly reflected the respondents high moral
    blameworthiness and the nature of the various offences he committed, as well as
    their aggravating features. The trial judge understood this; whether he arrived
    at a fit sentence is another question which I turn to below.

The trial judge gave undue emphasis to the mitigating circumstances

[40]

The appellant submits that the trial judge gave
    undue emphasis to various mitigating circumstances.  Among other things, the
    appellant submits that the trial judge misapprehended Dr. Eccles evidence as to
    the respondents risk to re-offend and the diagnosis of paedophilia,
    misunderstood the evidence of the role played by the respondents PTSD and use
    of malaria medication, and gave undue weight to the guilty plea as a mitigating
    circumstance. These submissions are not borne out by the record.

[41]

The trial judge gave very careful attention to
    the aggravating and mitigating circumstances.  He was well aware of the nature
    of Dr. Eccles opinion and during submissions demonstrated that the diagnosis
    of low to moderate risk to re-offend was premised on the respondent having
    limited access to children. The judge also appreciated the role played by PTSD
    and the malaria medication.  As the trial judge said in his reasons:  They do
    not condone or explain your activities and perhaps they are a crutch that you
    cling to[,] to try and explain your behaviour, but they are still, nonetheless,
    part of what brought you to where you are today.  I agree with that
    characterization. It is fully borne out by the record, and especially the
    reports of Drs. Eccles and Conroy.

[42]

The trial judge was entitled to consider the
    mitigating effect of the guilty plea. It is true that the case against the
    respondent was formidable and perhaps unanswerable. The guilty plea was still a
    factor to be taken into account. By his plea, the respondent spared the
    complainant having to testify at a preliminary hearing or trial. He
    acknowledged his responsibility for his conduct, and expressed great remorse.
    These are all appropriate factors to take into account.

The total sentence of six years imprisonment was unfit

[43]

In my view, this is the real issue in this
    difficult case. Before turning directly to this issue I will briefly discuss
    two decisions from this court:
R. v. B. (J.),
[1990] O.J. No. 36 and
R. v. D. (D.)
(2002),
58 O.R. (3d) 788.

[44]

In
B. (J.)
,
    this court held that where a parent commits an offence of sexual abuse of a
    child in his care, and that abuse includes sexual intercourse, the normal
    disposition should be a penitentiary sentence in the range of three to five
    years imprisonment. The court held as follows:

The
    decisions of provincial appellate courts establish that, except in unusual
    circumstances, a penitentiary sentence is called for in all cases of sexual
    abuse of children to whom the convicted person stands in
loco parentis
if the abuse involves sexual intercourse. Such sentences reflect society's
    denunciation of this abhorrent conduct and the breach of trust reposed on
    parents or guardians of children. Both counsel agreed that the usual range of
    sentences for this type of offence is from three to five years. The length of
    sentence within the range of three to five years depends on a number of factors.
    These include the age of the victim, the duration and frequency of the sexual
    assaults, the criminal record of the offender, the effects on the victim and
    the presence or absence of collateral violence or remorse.

[45]

B. (J.)
was decided in 1990. Blair J.A.
    speaking for the court referred to decisions from this court and appellate
    courts of other provinces, especially the Alberta Court of Appeal. A review of
    those cases supports the three to five year range for incest, even where the
    abuse has been prolonged and even where the offences involved more than one
    child.
B. (J.)
has been repeatedly followed by
    this court.  See,
R. v. H. (D.A.)
(2003), 171
    C.C.C. (3d) 309 at para. 33;
R. v. M. (W.W.)
(2006), 205 C.C.C. (3d) 410 at para. 413;
R. v.
    G.A.G
. (2006), 206 O.A.C. 134 at para. 13;
R.
    v. M.G
., 2007 ONCA 837. However, this courts decision in
B. (J.)
must now also be read with the
    decision in
D. (D.)
.  While making it clear
    that he was not setting out fixed and inflexible guidelines, Moldaver J.A.,
    speaking for the court, said this in
D. (D.)
,
    at para. 44:

To summarize, I am of the view that as
    a general rule, when adult offenders, in a position of trust, sexually abuse
    innocent young children on a regular and persistent basis over substantial
    periods of time, they can expect to receive mid to upper single digit
    penitentiary terms. When the abuse involves full intercourse, anal or vaginal,
    and it is accompanied by other acts of physical violence, threats of physical
    violence, or other forms of extortion, upper single digit to low double digit
    penitentiary terms will generally be appropriate. Finally, in cases where these
    elements are accompanied by a pattern of severe psychological, emotional and
    physical brutalization, still higher penalties will be warranted.

[46]

Each case will, of course, turn on its own facts
    and sentencing is a highly individualized exercise. However, the court
    signalled in
D. (D.)
that the sexual abuse of
    a child will attract lengthy penitentiary sentences.  In my view, where a
    father has committed repeated acts of incest with his daughter over many
    months, as in this case, it will be highly unusual for the court to impose a
    penitentiary sentence of less than five to six years. Such a range is more
    consistent with this courts decision in
D. (D.)

and

is also more consistent with amendments to the
Criminal
    Code
since
B. (J.)
was
    decided. The
Criminal Code

now provides that
    the primary objectives of sentencing are deterrence and denunciation where the
    victim of sexual abuse is a child under the age of 18 years.  The
Criminal
    Code
also explicitly provides that  abuse of a child
    under 18 years and abuse of trust or authority in relation to the victim are
    aggravating factors:

718.01
    When a court imposes a sentence for an offence that involved the abuse of a
    person under the age of eighteen years, it shall give primary consideration to
    the objectives of denunciation and deterrence of such conduct.

718.2
    A court that imposes a sentence shall also take into consideration the
    following principles:



(ii.1)
    evidence that the offender, in committing the offence, abused a person under
    the age of eighteen years,

(iii)
    evidence that the offender, in committing the offence, abused a position of
    trust or authority in relation to the victim

shall be deemed to be aggravating
    circumstances,

[47]

In this case, the trial judge imposed concurrent
    sentences of five years imprisonment for the sexual offences of incest, sexual
    interference and sexual assault committed against the respondents daughter.
    Standing on its own, the sentence of five years imprisonment was a lenient one,
    and at the bottom end of the range. That said, I have not been persuaded that
    the sentence was unfit having regard to the several mitigating circumstances
    including the lack of prior criminal record, the guilty pleas, the remorse, the
    commitment to treatment and the respondents mental illness. Since the
    respondent was separately charged with making child pornography and to avoid
    double-counting, in considering the sentence for the sexual offences I have
    not taken into account what would otherwise be the serious aggravating
    circumstance that the respondent filmed the abuse of his daughter.

[48]

I turn now to the fitness of the sentence for
    making child pornography and possession of child pornography. In my view, the
    sentence of one year imprisonment consecutive for those offences, standing on
    its own would have been inadequate.  The indictable offence of making child
    pornography alone carries a minimum sentence of one year imprisonment, pursuant
    to s. 163.1(2)(a) of the
Criminal Code
. The
    videos are extremely disturbing.  They did not just show fondling and display
    of genital organs. T
he videos show the respondent masturbating and
    ejaculating on the victim, as well as forcing vaginal and anal intercourse. The
    cruelty and callousness of the respondents conduct in making and keeping these
    videos is self-evident.

[49]

The possession offence was also disturbing. The respondent was in
    possession of almost two thousand images of child pornography, including photographs
    of children engaged in forced sexual activity like fellatio and intercourse. 
    The two factors in the respondents favour are that there is no suggestion that
    he intended to distribute the images of his daughter to others or that he was
    involved in distributing the other child pornography.

[50]

The approach to crafting a sentence in this kind of case, which
    involves sexual assault of the offenders child, and making of child
    pornography involving that child, is set out by
LeBel J. in
R. v.
    L.M
.
, 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 31:

Viewed as a whole, the crime was
    complex. The offence of sexual assault was closely connected with three other
    offences of making, possessing and distributing child pornography that are
    subject to express sanctions under the
Criminal Code
. Each aspect of the
    offender's conduct could be considered only in light of all these charges,
    viewed as a whole. As Judge Wilhelmy concluded, the global sentence was the
    crucial factor in determining the sentence in the case at bar.

[51]

Further, as Feldman J.A. observed in
R.
    v. F. (D.G.)
,
2010 ONCA 27, 98 O.R. (3d) 241, at
    para. 27: Although the totality principle must always be considered when
    sentencing for multiple offences, the sentence imposed cannot thereby become
    inadequate to properly recognize the overall gravity of this conduct that
    victimizes children in the most horrendous way.
The trial
    judge in this case was required to consider the totality principle in crafting
    the appropriate global sentence.  This was a difficult case. The trial judge
    was sentencing a man who had become mentally ill while in the service of his
    country. Although the post-traumatic stress disorder did not cause the
    respondent to commit these offences, it was an inescapable piece of the context
    that had to be considered.  The trial judge also had before him the views of
    the victim and her mother asking for leniency for the respondent. Crafting a
    fit global sentence was a difficult and unenviable task.

[52]

In considering whether there is a basis for appellate
    intervention in this case it is important to return to the standard of review.
    I have already referred to the importance of deference in relation to the
    management of the sentencing hearing itself. This deference finds its greatest
    expression when considering the length of sentence and the manner in which the
    sentence will be served, concurrently or consecutively. The Supreme Court of
    Canada has described the standard of review that this court is required to
    apply in terms such as the following. From
M. (C.A.)
,
at para.
    91:

A
    sentencing judge also possesses the unique qualifications of experience and
    judgment from having served on the front lines of our criminal justice system.
    Perhaps most importantly, the sentencing judge will normally preside near or
    within the community which has suffered the consequences of the offender's
    crime. As such, the sentencing judge will have a strong sense of the particular
    blend of sentencing goals that will be "just and appropriate" for the
    protection of that community. The determination of a just and appropriate sentence
    is a delicate art which attempts to balance carefully the societal goals of
    sentencing against the moral blameworthiness of the offender and the
    circumstances of the offence, while at all times taking into account the needs
    and current conditions of and in the community. The discretion of a sentencing
    judge should thus not be interfered with lightly.

[53]

Again, from
M. (C.A.)
, at para. 92:

As
    well, sentences for a particular offence should be expected to vary to some
    degree across various communities and regions in this country, as the
    "just and appropriate" mix of accepted sentencing goals will depend
    on the needs and current conditions of and in the particular community where
    the crime occurred. For these reasons, consistent with the general standard of
    review we articulated in Shropshire, I believe that a court of appeal should
    only intervene to minimize the disparity of sentences
where the
    sentence imposed by the trial judge is in substantial and marked departure from
    the sentences customarily imposed
for similar offenders committing similar crimes. [Emphasis added.]

[54]

From
R. v. L.M
.
at para. 68:

On
    an appeal by the Crown, it will thus not suffice for the Court of Appeal to
    conclude that the impugned sentence is
lenient
; nor, on an appeal by the
    accused, to find that the sentence is
severe
. Rather, a sentence may be
    varied only if it is found to be
too lenient
or
too severe
that
    is to say, clearly excessive or inadequate; and therefore unfit (
Shropshire,
at para. 48).

[55]

From
R. v. Stone
, [1999] 2 S.C.R. 290, at para. 244:

One
    function of appellate courts is to minimize disparity of sentences in cases
    involving similar offences and similar offenders; see
M. (C.A.),
    supra
, at para. 92, and
McDonnell,
    supra
,
at para. 16, per Sopinka J. In
    carrying out this function, appellate courts may fix ranges for particular
    categories of offences as guidelines for lower courts. However, in attempting
    to achieve uniformity, appellate courts must not interfere with sentencing
    judges' duty to consider all relevant circumstances in sentencing; see
McDonnell,
    supra
, at para. 43, per
    Sopinka J.; and at para. 66, per McLachlin J. In
Archibald
, [
R. v. Archibald

(1992), 15
    B.C.A.C. 301]
    McEachern C.J. clearly stated, at p. 304, that it would be wrong to assume that
    there is any "precise range that will apply to every case". In my
    opinion, this qualification reveals that
the Court of Appeal in
    Archibald correctly intended for trial judges to balance uniformity in
    sentencing with their duty to consider the circumstances of the particular case
. [Emphasis added.]

[56]

And,
    finally, as to whether sentences should be consecutive or concurrent,
R. v.
    McDonnell
, [1997] 1 S.C.R. 948, at para. 46:

In
    my opinion, the decision to order concurrent or consecutive sentences should be
    treated with the same deference owed by appellate courts to sentencing judges
    concerning the length of sentences ordered.
The rationale for
    deference with respect to the length of sentence, clearly stated in both
    Shropshire and M. (C.A.), applies equally to the decision to order
    concurrent or consecutive sentences. In both setting duration and the type of
    sentence, the sentencing judge exercises his or her discretion based on his or
    her first-hand knowledge of the case; it is not for an appellate court to
    intervene absent an error in principle, unless the sentencing judge ignored
    factors or imposed a sentence which, considered in its entirety, is
    demonstrably unfit.
The
    Court of Appeal in the present case failed to raise a legitimate reason to
    alter the order of concurrent sentences made by the sentencing judge; the court
    simply disagreed with the result of the sentencing judge's exercise of
    discretion, which is insufficient to interfere. [Emphasis added.]

[57]

A
    substantial argument could be mounted that, on their own, the concurrent one
    year sentences for making child pornography and possession of child pornography
    were extremely lenient and that, in addition, one sentence might well have been
    made consecutive to the other. However, when combined with the fact that they
    were consecutive to the five year sentence imposed for the sexual offences, it
    is my view that the high threshold for appellate intervention has not been met.
    The global sentence of six years was lenient but it was not clearly inadequate
    given the highly unusual circumstances, particularly the respondents mental
    state. The respondents mental state tempers the otherwise significant moral
    blameworthiness of the respondent's conduct.

DISPOSITION

[58]

Accordingly,
    while I would grant leave to appeal, I would dismiss the appeal.

Signed:        M.
    Rosenberg J.A.

I
    agree J. C. MacPherson J.A.


Epstein J.A. (Dissenting):

I.
INTRODUCTION

[59]

This
    appeal concerns the manner in which the trial judge, in the course of a
    sentencing hearing, dealt with evidence proffered by the Crown that was
    relevant to the nature and gravity of the offences committed. The offender had
    entered guilty pleas to the offences of incest, sexual assault, sexual interference,
    production of child pornography, possession of child pornography, and unsafe
    storage of firearms. The evidence in issue is a disc the police prepared
    containing a sampling of the 1,845 child pornography images and videos that
    were found on the offenders computers, including the three videos and five
    images that he had made while sexually assaulting his young daughter.

[60]

Without
    viewing the contents of the disc, the trial judge refused to admit it as an
    exhibit tendered by the Crown, reasoning that its probative value was overborne
    by its prejudicial effect.  In making this ruling and then ultimately in
    determining a fit sentence, the trial judge relied upon his professional
    experience of viewing other images and videos depicting sexual abuse of children,
    together with the facts read into the record in support of the guilty plea, for
    the purposes of gaining the appreciation of the nature and gravity of the
    sexual offences committed by the respondent.  It was against this background
    that the trial judge arrived at a global sentence of six years imprisonment.

[61]

I
    have had the benefit of reading the reasons of my colleague, who would grant
    the Crown leave to appeal the sentence but dismiss the appeal primarily on the
    ground that this court should defer to the trial judges treatment of the disc
    and his determination of a fit sentence.

[62]

On
    this record, I come to a different conclusion.  Decisions pertaining to the
    admission of evidence should normally be left to the trial judge, but appellate
    intervention is both warranted and required where  as here  the decision is
    tainted by legal error. In my view, the trial judge erred by relying on his
    previous professional experience  that of being exposed to images and videos
    of child pornography  in determining the probative value of the disc, by
    failing to view the disc to determine its admissibility, and in his
    consideration of prejudicial effect.

[63]

Having
    viewed the disc, I am of the opinion that it should have been admitted as an
    exhibit. It offers considerable value in terms of the appreciation of the nature
    and gravity of the sexual offences. This value was not offset by any relevant
    prejudice.

[64]

As
    a result of these errors, the trial judge arrived at a sentence without the
    benefit of evidence relevant to the central issue of the gravity of the sexual
    offences. It follows that the trial judges determination of sentence does not
    attract the usual deference. In my view, taking into consideration the degree
    of moral culpability of the respondent together with the other sentencing
    principles set out in s. 718 of the
Criminal Code
, the appropriate
    global sentence in this case is nine years imprisonment.

[65]

I
    would add that, quite apart from the errors I have identified in relation to the
    disc, I am of the view that the sentence of six years imprisonment imposed by
    the trial judge is manifestly unfit.

II.       ANALYSIS

[66]

As
    indicated by my colleague, the Crown raised four distinct issues in this
    appeal. The first relates to the failure of the sentencing judge to admit and
    view the disc containing child pornography including the offenders audio and
    visual recording of his sexual abuse of his daughter. I deal with this issue
    first. The Crowns remaining issues relate to the determination of sentence,
    which I deal with in the second part of my analysis.

(1)

Admission of the Disc

[67]

In
    seeking to have the disc admitted, the trial Crown, relying on
R. v. Kwok
,
    (2007), 72 W.C.B. (2d) 533, 2007 CanLII 2942, argued that it was highly
    relevant to the trial judges appreciation of the nature and gravity of the
    offences. Counsel for the offender agreed that the disc was relevant, but
    resisted its admission on the basis that its probative value was outweighed by
    its prejudicial effect. He argued that with the admitted facts on the guilty
    plea, the trial judge had a clear sense of the offenders moral culpability,
    and viewing the disc would be grossly inflammatory and unnecessary.

(i)

Probative
    Value and Prejudicial Effect of Evidence in the Context of a Sentencing Hearing

[68]

In
R. v. Mohan,
[1994] 2 S.C.R. 9, at para. 18, Sopinka J., writing for
    the court, concisely outlined the reception of relevant evidence, and the
    exclusion of it based on prejudicial effect:

Relevance is a threshold requirement for the admission of
    expert evidence as with all other evidence. Relevance is a matter to be decided
    by a judge as a question of law. Although
prima facie
admissible if so
    related to a fact in issue that it tends to establish it, that does not end the
    inquiry. This merely determines the logical relevance of the evidence. Other
    considerations enter into the decision as to admissibility. This further
    inquiry may be described as a cost benefit analysis, that is "whether its
    value is worth what it costs." See McCormick on Evidence (3rd ed. 1984),
    at p. 544. Cost in this context is not used in its traditional economic sense
    but rather in terms of its impact on the trial process. Evidence that is
    otherwise logically relevant may be excluded on this basis, if its probative
    value is overborne by its prejudicial effect, if it involves an inordinate
    amount of time which is not commensurate with its value or if it is misleading
    in the sense that its effect on the trier of fact, particularly a jury, is out
    of proportion to its reliability. While frequently considered as an aspect of
    legal relevance, the exclusion of logically relevant evidence on these grounds
    is more properly regarded as a general exclusionary rule (see
Morris v.The
    Queen
, [1983] 2 S.C.R. 190). Whether it is treated as an aspect of
    relevance or an exclusionary rule, the effect is the same.

[69]

The
    explanation in
Mohan

of the weighing of probative value against
    any prejudicial effect was in the context of expert evidence proffered at
    trial.  The concern was that such evidence would be improperly used by the
    trier of fact, perhaps by the jurys being unduly impressed by the experts
    credentials. It is primarily in the trial context where impermissible reasoning
    may lead to unfairness that the probative value and prejudicial effect test is
    used.

[70]

As
    I will explain, sentencing hearings are different.  In my view, the differences
    call for a modification of the general exclusionary rule such that, if relevant
    to the admissibility analysis at all, the potential prejudice of the evidence
    in issue should be given less weight.

[71]

As
    my colleague notes, the Supreme Court, in
R. v. Angelillo
, [2006] 2
    S.C.R. 728, does refer to the discretion to exclude evidence on the basis that
    its prejudicial effect outweighs its probative value in a sentencing hearing.
    However, it is important to recognize that in
Angelillo
the court was
    considering the particular issue of whether extrinsic evidence of other
    offences (uncharged or unproven) allegedly committed by the offender is
    admissible against him in a sentencing proceeding. Writing for the majority of
    the court, and responding to the minoritys view that such extrinsic evidence
    would not ordinarily be admissible, Charron J., in
obiter
, was
    emphasizing the procedural protections offenders have in a sentencing hearing
    (at paras. 31-32):

There are a number of other principles that assure the
offender's
right to a fair trial. I will explain this.

If the extrinsic evidence is contested, the prosecution must
    prove it. Since the facts in question will doubtless be aggravating facts, they
    must be proved beyond a reasonable doubt (s. 724(3)(
e
)). The court can
    sentence the offender only for the offence of which he or she has been
    convicted, and the sentence must be proportionate to the gravity of that
    offence.
In addition, the judge can and must exclude otherwise relevant
    evidence if its prejudicial effect outweighs its probative value such that the
    offender's right to a fair trial is jeopardized.
[Emphasis added.]

[72]

I
    make three observations concerning the import of
Angelillo
.
First,
    Charron J.s reference to the general exclusionary rule was in the context of
    the particular circumstances present in
that case
where extrinsic
    evidence of as yet unproven unrelated offences is tendered against the
    offender.  Second, it is clear that the focus was on prejudice
to the
    offender
, and more specifically, to the offenders right to a fair
    sentencing proceeding. Third, at para. 21, Charron J. emphasized that all prior
    case law must be read in the light of the sentencing provisions contained in
    Part XXIII of the
Criminal Code
.
This, in my view, includes the
    legislated focus on relevance

in ss. 723 and 726.1 of the
Code
,
    which specifically address the treatment of evidence in the context of a
    sentencing hearing.  Section 723 provides that before determining a sentence,
    the court shall hear any
relevant
evidence presented by the prosecutor
    or offender, and s. 726.1 directs that [i]n determining a fit sentence, a
    court shall consider any
relevant
information placed before it
    [Emphases added].

[73]

This
    wording of these provisions demonstrates that at a sentencing hearing, the
    emphasis is on the relevance of proffered

evidence, a point
    Charron J. appreciated in
Angelillo
at para. 28,

where
    she said
:

Section 723
requires
the court to give the
    prosecutor and the defence an opportunity to make submissions with respect to
    any facts relevant to the sentence to be imposed
and to hear any evidence
    they see fit to submit
.  Section 726.1 clearly states that all
    this information
must
be considered in determining the sentence.
    [Emphasis added].

These legislative provisions support the proposition
    that for the purposes of admitting evidence during a sentencing hearing, the dominant
    factor is the
relevance
of the evidence.

[74]

Parliaments
    specific focus in this respect is consistent with the unique context of
    sentencing.

The dominant concern addressed by the weighing of prejudice
    against probative value for the purposes of determining admissibility during
    the trial itself is that the evidence in issue may lead to impermissible
    reasoning, either as a result of the evidence being used for an improper
    purpose or having the potential to inflame the trier of fact  either of which
    has the potential of rendering the accuseds trial unfair. At the sentencing
    stage, the trier of fact is always a judge and the issue is no longer guilt but
    the determination of a fit sentence  a determination for which the trial judge
    should have as much relevant information as possible; see
R. v. Lévesque
,
    [2000] 2 S.C.R. 487, at para. 30.

[75]

It
    is against this background that I turn to the trial judges approach to the
    admissibility of the disc in this case.

(ii)

The Trial Judges Approach to the Disc

[76]

In
    my view, the trial judge committed the following errors in principle in his
    analysis of the admissibility of the disc. First, without viewing the contents
    of the disc, the trial judge determined that it lacked probative value.  With
    reference to the fact that his professional experience had exposed him to
    images of similar conduct, he concluded that viewing the contents was not
    necessary in order for him to appreciate the gravity of the sexual offences
    Second, in considering the potential prejudice associated with admission of the
    proffered evidence, the trial judge relied on the effect that his viewing of
    the disc would potentially have on the victim.

Probative Value - Reliance on
    Previous Experience in Place of Viewing the Contents of the Disc

[77]

For
    the reasons that follow, I am of the view that the trial judge erred in law by
    failing to view the discs contents.  Without having done so, he was not in a
    position to assess its probative value adequately.

[78]

It
    was not disputed that the contents of the disc were relevant to the issue of
    the gravity of the sexual offences.

[79]

Of
    course, in understanding the moral culpability of the offender, the trial judge
    was entitled to rely on the agreed-upon facts that were read into the record to
    support the guilty pleas, as well as the respondents implied admission of all
    of the essential elements of the offences admitted by the pleas: see
R. v.
    Gardiner
(1982), 68 C.C.C. (2d) 477, at p. 514. However, as is most often
    the case, these facts contain little more than an outline of the accuseds
    conduct that comprised the basic elements of the offences. As the content of
    these facts  what they describe and what they do not describe  are important
    to my reasoning, I set them out in full:

[The victim] has a date of birth of ... 1995 and is the victim
    in this matter. [The offender] is her father. In October of 2009, [the victim]
    disclosed to a friend that her father had been sexually abusing her. This
    information was passed on to the Military Police and an investigation was
    commenced. [The victim] was interviewed and provided the following information:
    Her father had been sexually abusing her for a few years. She believes there
    were approximately 10 occurrences, all occurred in their residence. On each
    occurrence there would be either vaginal or anal intercourse. The abuse
    commenced prior to his deployment to Afghanistan in the Fall of 2008 and it
    happened again when he returned for Christmas leave 2008 to 2009. [The victim]
    described two most recent occurrences, actually three I should say. In or about
    September 2009 [the victim] had been in her bedroom. She was in her school
    uniform kneeling on the floor looking for something. [The offender] entered the
    room, instructed her to get onto her bed. He removed her clothing and had
    vaginal intercourse with her. [The victim]'s eight year old brother was present
    in the residence but it is believed that he did not witness this. She also
    described an occasion when she was in the living room watching television. [The
    offender] came in, removed her bottoms and instructed her to get onto her hands
    and knees. She cried and said no. None the less, he engaged in anal intercourse
    and ultimately ejaculated on her back. Just prior to her disclosure, [the
    victim] describes, sorry, [the victim] describes another incident that occurred
    prior to her disclosure. She was at home sick from school. [The offender] came
    home during the lunch hour. She was watching television on the couch. He gave
    her, she describes, that look, and went upstairs to get his digital camera.
    When he returned to the living room, [the offender] removed the pyjama bottoms
    that [the victim] was wearing. He engaged in sexual intercourse with her. [The
    victim] advised that [the offender] took photographs of the sexual act. She
    also advised that this was not the first time he photographed his sexual acts
    with her. On October 21, 2009, a search warrant was executed at the [familys]
    residence. Two computers and some photographic equipment were seized.
    Investigators also found a number of weapons and a box of ammunition. [The offender]
    did not have any weapons registered to him. As a result, three long guns were
    seized as they were not stored safely and were not registered. The two
    computers were analyzed. A lap top used by [the offender] was analyzed. 1,794
    images of child pornography were found to be on that computer. They included
    photographs of children posing nude, engaging in sexual acts of fellatio and
    intercourse and forced sexual activity. Also seized was a Dell desk top. On
    that, 43 images of child pornography were discovered. They also included
    pictures of children posing nude engaging in sexual acts of fellatio,
    intercourse and forced sexual activity. Also on the Dell desktop in a separate
    directory were three videos and five still images of [the victim] created with
    a Fuji camera. It was the same Fuji camera that was also seized pursuant to the
    search warrant. The videos show [the offender] engaging in sexual activity with
    [the victim]. They show vaginal intercourse and self-masturbation by [the offender]
    with the  ultimately with ejaculation on [the victim]. Throughout two of the
    videos you can hear audio. You can hear [the victim] saying Daddy please stop
    repeatedly in both videos. In one, [the offender] says shut up to [the
    victim] and in the other you can hear [the offender] say shut the fuck up to
    [the victim].

[80]

It
    is worth noting that the guilty plea proceeding that took place on July 7,
    2010, was relatively brief and was adjourned for the purpose of obtaining a
    pre-sentence report and a psychological assessment. The matter resumed on
    September 7, 2010, and after the trial judge acknowledged receipt of the
    reports, the Crown requested that the disc be admitted as an exhibit and
    submitted that it was the trial judges duty to view its contents. In my view,
    it is a reasonable inference that the Crown intended to supplement the limited
    description of the offences that was read into the record two months previously
    by the proffered evidence contained on this disc. It is also reasonable to
    infer that had the Crown known the disc would not be admitted, the Crown would
    have provided a more detailed description of the offences for the record.

[81]

In
    concluding that he did not have to review the contents of the disc in order to
    assess its probative value, the trial judge reasoned that he could look to his
    experience viewing
other
crimes committed by
other
offenders
    to gain an appreciation of the nature and gravity of the sexual offences. His
    references to the value of this experience include the following exchange with
    the Crown:

In my view, despite the legal concerns that might flow from
    this decision, I am satisfied that it is not necessary for me to view the video
    to properly understand and comprehend the impact of the acts of the accused,
    specifically, as they relate to his daughter in this matter.

As I said earlier, having been counsel for the Childrens Aid
    Society for 15 years and having been on this bench for almost 20 years, I have
    been involved and presided over, unfortunately, countless cases of child
    pornography and other similar cases. I have seen and been exposed to
    significant examples of the type of behaviour here.

[82]

The
    trial judge reiterated this position in his reasons for sentence:

I comment on not watching the video, because I may not be the
    last one to speak on these matters, only to say that I am well aware of the
    graphic nature of events as they unfolded here, have seen the child pornography
    repeatedly, both in video and photograph form and believe I fully appreciate
    the nature of those events and the specific aspects as they relate to [the
    victim].

[83]

In
    my view, the assessment of the nature of the offenders specific
offences
is an adjudicative fact central to the determination
    of the sentence and should not be determined by reaching outside the record and
    into one judges prior professional experience. This is impermissible and
    amounts to an error in principle: see
R. v. Perkins
, 2007 ONCA 585,
    223 C.C.C. (3d) 289.

[84]

Other
    difficulties flow from this approach.  Significantly, the determination of the
    admissibility of otherwise relevant evidence could be affected by who the trial
    judge is and the nature of his or her experience adding considerable
    uncertainty to counsels preparation for the sentencing hearing.

[85]

The
    trial judges approach to child pornography evidence might have merit, if, for
    example, the case only related to a charge of possession of a collection of
    child pornography images, the nature of which was detailed for the record and
    the trial judge had experience viewing such collections.  However, in this case
    the impugned evidence included direct audio and visual evidence of the
actus
    reus
of the sexual abuse perpetrated by the offender as well as a large
    inventory of child pornography images that were not described in the facts read
    into the record at the time the respondent pleaded guilty to the offences.  But
    that was not the situation here.

[86]

As
    I viewed the disc, it became clear to me that the visual and audio components
    of its contents disclose aspects of the depravity of the respondents conduct and
    the horrific abuse suffered by his young victim that are not conveyed by the
    agreed-upon facts. I will identify but one  that the intercourse was
    unprotected.  There are a number of others, some that contribute more
    significantly to the sentencing analysis.  The point is that the contents of
    the disc are highly probative to the central issue before the judge; namely,
    the moral culpability of the respondent.

[87]

Another
    judge may have made different observations about this evidence and in another
    comparable case there may be significantly different things to observe from
    such evidence. The point is that in order to determine whether relevant
    evidence should be admitted, the trial judge needs to know what it is that he
    or she is being asked to admit.  This trial judge did not have that knowledge.

[88]

Here,
    I am reminded of the familiar quotation from Platos Apology, attributed to
    Socrates: At any rate it seems I am wiser than he is to this small extent,
    that I do not think I know what I do not know.

[89]

Without
    viewing the disc, the trial judge did not know what it contained. The read-in
    facts and the trial judges previous professional experience did little to
    inform the trial judge of the value of this particular piece of evidence. By
    failing to review the disc to determine whether it should be admitted, the
    trial judge fell into error.

Prejudicial Effect  Reliance on the Effect of Viewing the Disc on the
    Victim

[90]

In
    the opening section of my analysis, I question the extent to which the
    potential prejudice of proffered evidence relevant to the determination of a
    fit sentence should be given weight. However, regardless of the view taken of
    that issue, the trial judge, in my respectful opinion, erred in his
    consideration of prejudice in this case.

[91]

The
    transcript of the exchanges between the trial judge and Crown demonstrates that
    the trial judge was concerned about the effect this would have on the victim,
    who was present in court.  The Crown offered to canvass whether the victim
    would remain in the courtroom if the disc were viewed in open court. While
    acknowledging that it was his decision to make, the trial judge expressed an
    interest in knowing the victims opinion with respect to his viewing the video
    and whether she wished to remain in the courtroom.

[92]

The
    transcript shows that the hearing was held down for some time and upon
    resuming, the trial judge was advised, as he states, that the complainant in
    this matter does not wish the video played.  There appears to have been no
    answer to the trial judges question whether the victim would have left the
    courtroom had the disc been played.

[93]

In
    his ruling, the trial judge indicated that he was mindful that the complainant
    in this matter does not wish the video played, but reiterated, her wishes and
    that of the family do not determine the issue for me. After making reference
    to his experience and his exposure to significant examples of the type of
    behaviour here, the trial judge ruled he would not view it, stating:

In my view, the prejudicial effect of the viewing, (and by that
    I mean to the victim not the accused), far outweighs the probative value to the
    Court, being mindful of the sensitivity of the complainant/victim in this
    matter and the awareness of the Court of the nature and circumstances of what
    is in that video.

[94]

A
    review of the transcript makes two things clear. First, notwithstanding his
    indicating otherwise, the trial judge, in his assessment of prejudicial effect
    identifies and relies upon only the impact on the victim of his of viewing the
    disc. He makes no mention of any prejudice to the respondent such that his
    right to a fair hearing would be jeopardized.

[95]

In
    my view, the trial judges concern about the victims sensitivities does not
    fall within the proper ambit of the probative value versus prejudicial effect
    analysis.

[96]

The
    due consideration of evidence will often include viewing that of an
    individuals victimization  a task that unfortunately carries the potential of
    adversely affecting the victim, among others.  However, obtaining an appreciation
    of all available relevant evidence is at the very core of the truth-seeking
    responsibility of the court.  Allowing a judge to circumvent this
    responsibility out of a concern over potential adverse consequences such as
    this, threatens to undermine this important objective.

[97]

Even
    if the impact on the victim by being present in court while the disc was viewed
    was relevant to the determination of whether the evidence in issue ought to
    have be admitted, the trial judges reliance on this concern was not supported
    by the record as he was not provided with an answer to his question as to
    whether the victim would leave the courtroom while he viewed the disc.

[98]

I
    do not wish to be taken as suggesting that the sensitivities of victims are
    irrelevant.  Far from it.  I agree with my colleague that courts are becoming
    increasingly sensitive to the interests of the victims of crime; not just the
    impact the crimes have on victims but also the impact of the criminal process
    itself.  The trial judge demonstrated laudable concern and compassion for the
    victim. However, I am of the view that this concern should inform not the
    admissibility of relevant evidence but rather the manner in which it is managed
    by the trial judge, once admitted.

[99]

I take this opportunity to comment that

there are practical ways to address a victims concerns while at the same
    time providing a trial judge with an opportunity to view the contents of evidence
    such as the disc at issue in the case.  The jurisprudence discloses various
    methods trial judges have resorted to in order to that mitigate the detrimental
    effects to the victim, ensure the rights of the accused, respect the purpose of
    the sentencing hearing, and protect the fair and orderly process of the court:
    see
R. v. Bernardo
, [1995] O.J. No. 1472 (C.J. (Gen. Div.)), at paras.
    122-123;
R. v. Lehman
, 2007 ONCJ 18, at paras. 3-4 and 11-12;
R
.
    v. G.(M.)
, 2009 ONCJ 561, at para, 6;
R. v. J.V.H
., 2010 BCPC
    253, at paras. 3-4.

(iii)

The Admissibility of the Exhibit in this Case

[100]

Because
    the trial judges approach to the probative value and the prejudicial effect of
    the disc evidence was flawed, the decision not to admit the disc does not
    attract the usual degree of deference.

[101]

It is manifest
    that the disc was no ordinary piece of evidence: it portrays, visually and
    audibly, the
actus reus
of the most serious of the offences of which
    the respondent was convicted. It is also the very subject of the pornography
    offences. To borrow the language of
Hunt, infra
, the images do not
    only depict the crime  they are the crime.

[102]

Evidence of this
    nature has been the subject of strong comment  both in terms of its high
    degree of relevance and the importance of it being viewed.  As my colleague
    notes, referring to the decision of the Alberta Court of Appeal in
R. v.
    Hunt
, 2002 ABCA 155, 166 C.C.C. (3d) 392, and the decision of Molloy J. in
Kwok
, videos or images of the actual crime(s) at issue are highly
    relevant and should normally be viewed. Like my colleague, I agree with Molloy
    J.s observation in
Kwok
, at para. 48, that [w]hile the description
    in words of such disturbing images is shocking, nobody can fully appreciate the
    sickening horror of such pornography without actually looking at it. This
    position has been supported, properly in my view, by a number of trial judges:
    see
R. v. Bishop
, 2007 ONCJ 442, [2007] O.J. No. 3807, at para. 11;
R.
    v. L.A.C
., 2005 ABPC 217, 386 A.R. 102, at para. 60;
R. v. Fisher
,
    2007 NBPC 15, 317 N.B.R. (2d) 317, at para. 5;
R. v. Moen
, 2006 SKPC
    1, 274 Sask. R. 79, at para. 3.

[103]

I appreciate
    that sentencing is a highly individualized process and a sentencing judge has
    considerable latitude as to the sources and types of evidence upon which to
    base his or her determination. However, in the circumstances of this case, and
    on this record, I am of the view that the important aspects of the nature and
    gravity of the sexual offences could only have been obtained by direct
    observation of the contents of the disc.

[104]

Based on the
    foregoing analysis, I would admit the disc.  Its contents are admittedly
    relevant, carry high probative value and do not prejudice the respondents
    right to a fair hearing.

[105]

I would add
    that, even if I am mistaken as to whether the impact of the judges viewing the
    evidence on the victim can be considered as prejudice weighing against the
    probative value of the disc, and as to whether such prejudice is made out on
    this record, I am of the view that the evidence  the images and videos stored
    in the disc  should nonetheless be admitted.

[106]

The comment of
    the Alberta Court of Appeal in
Hunt,
is worth repeating:

Being relevant, [the pornographic images] should have been
    reviewed by the sentencing judge unless some other exclusionary rule applied.
    Counsel for the Offender did not suggest the prejudicial effect outweighed the
    probative value. We doubt such an argument could be made when dealing with the
actus
    reus
of the crime. [Emphasis added.]

[107]

On this record
    such an argument cannot be made.

(iv)

Admission Requires Appropriate Review and Consideration

[108]

As my colleague
    notes, an issue arose during argument as to whether the trial judge actually
    admitted the disc into evidence or merely marked it for identification
    purposes.  The record is unclear.  I agree with my colleague that the trial
    judge employed language that can be interpreted to suggest exclusion.  However,
    the language is also indicative of admission.  I refer to both the body of the
    transcript and in the introduction where exhibits are listed and the disc was
    formally marked as Exhibit One. I further note that the appellant, in his
    factum, specifically identifies the disc as an entered exhibit and the
    respondent, in his factum, agrees.

[109]

Regardless of
    whether the trial judge did or did not admit the disc, I come to the same
    conclusion.  If the trial judge did not admit the disc, he made the errors
    discussed above. If, on the other hand, the trial judge did admit the disc, for
    the reasons that follow, he nonetheless erred by failing to view and consider
    the evidence in arriving at his determination of a fit sentence.

[110]

Once admitted,
    the trial judge was obligated to review the contents of the disc. While a
    sentencing judge must necessarily retain some discretion in terms of how to
    engage with admissible evidence, this discretion must be exercised within the
    bounds of what it means to hear and consider relevant evidence and
    information, pursuant to ss. 723(2) and 726.1 of the
Criminal Code
.

[111]

The
Criminal
    Code
defines neither the term hear, nor consider. The Canadian Oxford
    Dictionarys definition of hear includes pay attention to, consider, and
    examine the merits of.  Burtons Legal Thesaurus, 3rd Ed. (McGraw-Hill,
    2001), defines hear as including to give attention to and be guided by and
    consider as take into account, think about, turn over in ones mind and
    weigh.

[112]

In
Newfoundland
    Provincial Court Judges v. Newfoundland
(1998), 160 D.L.R. (4th) 337
    (T.D.), the court held that in order to consider a report, a legislative body
    must actually review it; it must turn its mind in good faith to the contents of
    the report.

[113]

In
R. v. Jeffrey
(1976), 34 C.R.N.S. 283 (Ont.
Prov.
    Ct.), the court, in a matter involving what was then s. 455.3(1)(a) of the
Criminal
    Code
, held that the requirement to hear and consider went beyond a mere
    reading of the informants allegation in the Information.  The judge must
    actually hear, listen to, and consider the allegations. The restriction on the
    meaning of hear in
Jeffrey
demonstrates that the duty to hear is not
    fulfilled simply because a judge otherwise has some knowledge as to what
    information may be revealed.

[114]

In the light of
    these sources and the variety of forms that evidence can take at a sentencing
    hearing, the statutory requirement on the trial judge to hear evidence and
    consider relevant information involves acknowledging the evidence, paying
    attention to it or examining it, and informing oneself of its import.

[115]

As previously
    indicated, a judge will necessarily have a degree of discretion in terms of how
    the obligations under ss. 723 and 726.1 of the
Criminal Code
may be
    met in the light of the nature of the exhibit and the issue to which it is
    relevant. For example, it may be neither practical nor necessary to review,
    line by line, a 500 page document.  And of course, a judge retains the
    discretion to exclude otherwise admissible cumulative evidence if it is
    needlessly piled on: see
R. v. Candir
, 2009 ONCA 915, 250 C.C.C.
    (3d) 139, at para. 60. However, deciding not to interact at all with relevant,
    admitted evidence would not be, in my view, consistent with what the
Criminal
    Code
mandates.

(2)

Fitness of the Sentence

[116]

The errors in
    the trial judges approach to the admissibility of the disc left him in a
    position of determining the sentence in the absence of important evidence on a
    central issue  the gravity of the sexual abuse offences.  The sentence
    therefore does not attract the usual level of deference. No
viva voce
evidence was called. As such, this court is in a position to determine a fit
    sentence.

[117]

The quantum of
    sentence must be proportional to the gravity of the offences and the moral
    blameworthiness of the offender: see
Criminal Code
, s. 718.1;
R.
    v. C.A.M
., [1996] 1 S.C.R. 500, at p. 529;
Re B.C. Motor Vehicle Act
,
    [1985] 2 S.C.R. 486, Wilson J., concurring, at p. 533.

[118]

As noted by my
    colleague, recent amendments to the
Criminal Code
and decisions of
    this court have signalled a determination to address, in a more powerful and
    effective fashion, the need to denounce and deter crimes that involve the
    sexual victimization of children.

[119]

My colleague
    refers to
R. v. D.(D.),
(2002), 58 O.R. (3d) 788 (C.A.). In that case,
    Moldaver J.A., speaking for the court, expressed the following concern, at
    para. 45:

The harm occasioned [to children] by [adult sexual predators]
    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!

[120]

In
D.D.,
at para. 44, an appropriate range of sentences for sexual abuse of children was
    identified:

To summarize, I am of the view that as a general rule, when
    adult offenders, in a position of trust, sexually abuse innocent young children
    on a regular and persistent basis over substantial periods of time, they can
    expect to receive mid to upper single digit penitentiary terms. When the abuse
    involves full intercourse, anal or vaginal, and it is accompanied by other acts
    of physical violence, threats of physical violence, or other forms of
    extortion, upper single digit to low double digit penitentiary terms will
    generally be appropriate. Finally, in cases where these elements are
    accompanied by a pattern of severe psychological, emotional and physical
    brutalization, still higher penalties will be warranted.

[121]

Almost a decade
    later, Moldaver J.A., in
R. v. Woodward
, 2011 ONCA 610, 107 O.R. (3d)
    81, felt the need not only to reiterate the concern he expressed in
D.D.
but also to increase the price to be paid by adult sexual predators who
    violate young children: see paras. 74-75.

[122]

In
R. v.
    Sharpe
, 2001 SCC 2, [2001] 1 S.C.R. 45, at para. 92, the Supreme Court
    spoke to the nature and significance of the harm caused by the production of
    child pornography:

The link between the production of child pornography and harm
    to children is very strong. The abuse is broad in extent and devastating in
    impact. The child is traumatized by being used as a sexual object in the course
    of making the pornography. The child may be sexually abused and degraded. The
    trauma and violation of dignity may stay with the child as long as he or she
    lives. Not infrequently, it initiates a downward spiral into the sex trade.
    Even when it does not, the child must live in the years that follow with the
    knowledge that the degrading photo or film may still exist, and may at any
    moment be being watched and enjoyed by someone else.

[123]

Concurrent with
    the recognition that offences involving the sexual victimization of children
    should attract higher sentences, came an overlay of increased penalties for
    crimes where the child sexual abuse is accompanied by making child pornography. 
    In
R. v. L.M
.,
[2008] 2 S.C.R. 163, the trial judge imposed a
    global sentence of 15 years upon the offenders plea of guilty to the offences
    of sexually assaulting his daughter, and producing, distributing and possessing
    child pornography. The Québec Court of Appeal allowed the sentence appeal and
    reduced the sentence to nine years less 16 months for the time spent in
    pre-sentence custody. The Supreme Court, in restoring the trial judges
    sentence, reinforced the importance of arriving at a global sentence that
    reflected the interrelationship among the offences and the seriousness of the
    overall situation they gave rise to, at para. 31:

The judge also correctly understood the close relationship
    between the offences, the overall situation they gave rise to and the need to
    impose a global sentence suited to that situation. Viewed as a whole, the crime
    was complex. The offence of sexual assault was closely connected with three
    other offences of making, possessing and distributing child pornography that
    are subject to express sanctions under the
Criminal Code
. Each aspect
    of the offender's conduct could be considered only in light of all these
    charges, viewed as a whole. As Judge Wilhelmy concluded, the global sentence
    was the crucial factor in determining the sentence in the case at bar.

[124]

In addition, as
    my colleague noted, ss. 718.01 and 718.2 of the
Criminal Code
identify
    certain factors, relevant to this case, as aggravating circumstances.

[125]

In terms of the
    overall moral blameworthiness of the offender, on multiple occasions over an
    extended period of time, he sexually assaulted his young daughter through acts
    that included unprotected anal and vaginal intercourse.  He recorded the abuse.
     In addition to these offences, the respondent, acknowledging his significant
    collection of over 1,800 images of child pornography, some depicting his
    daughter, pleaded guilty to possession of child pornography. Finally, the
    accused also pleaded guilty to the offence of possessing the unregistered and
    unsafely stored firearms that the police found in his home.

[126]

The confluence
    of these factors clearly calls for a significant sentence to respond to the
    sentencing principles of general deterrence and denunciation  principles that
    have been identified, by statute, as paramount in sentencing offenders for
    crimes of this nature.

[127]

I must also
    consider any mitigating factors.  Those identified by the trial judge are: the
    effects upon the offender of his service in the armed forces, including his
    suffering from post-traumatic stress disorder, his taking medication known to
    have serious side effects, his guilty plea, his remorse, his preparedness to
    seek treatment, the fact that the evidence indicated the offender was at a low
    or low-to-moderate risk to re-offend, the fact that there was only one victim
    and the offender was not in a predatory role, and the victims wishes.

[128]

I agree that the
    offender deserves credit for taking responsibility for his conduct through his
    guilty plea and making it unnecessary for his daughter to testify about the
    abuse he inflicted on her. However, in the light of the evidence, including his
    own recording of the abuse, the Crown had what may be called an overwhelming
    case.

[129]

While the offenders
    expression of remorse is also a mitigating consideration, in my view it is
    minimal given his limited insight demonstrated by his description to Dr. Eccles
    of his conduct being just intercourse.

[130]

The offenders
    history of medical problems and his time served in the armed forces are also
    relevant. These factors are, to borrow the trial judges language, part of what
    brought the offender to where he is today.  However, I attach limited importance
    to them given the evidence about there being no direct causal connection
    between this history and the commission of the offences.

[131]

With respect,
    these factors  while mitigating  do not justify describing the sentence of
    five years imprisonment for the sexual offences as being at the very low end
    of the range. In my view, it falls below the range.

[132]

Furthermore,
    unlike my colleague, I take issue with the trial judges finding that there was
    only one direct victim.  Each child depicted in the multitude of child
    pornography images in his possession is a victim.  In
Sharpe
,
    LHeureux-Dubé, Gonthier and Bastarache JJ. stated the following, at para. 132:

The very existence of child pornography, as defined by s.
    163.1(1) of the
Criminal Code
is inherently harmful to children and
    society. This harm exists independently of dissemination or any risk of
    dissemination and flows directly from the existence of the pornographic
    representations, which on their own violate the dignity and equality rights of
    children.

[133]

I am also wary
    of the emphasis that the trial judge placed on the offenders not being in a
    predatory role, which means outside of your family. As my colleague notes, s.
    718.2(iii) of the
Criminal Code
cites an offenders abuse of a
    position of trust or authority in relation to the victim as an aggravating
    factor for the purposes of sentencing. The offender violated a most sacred
    relationship of trust  that between a parent and his own child. While the
    trial judge mentioned the relationship of trust between a father and daughter,
    it appears that what should have been treated as an aggravating factor was in
    fact treated as mitigating, or, at best, as neutral.

[134]

Finally, on this
    record, I disagree with the trial judges having taken the wishes of the young
    victim into consideration.  I say this in the light of his specific observation
    that she lacked insight into what her father had done to her.  In my opinion,
    her views should not be given much weight in determining a fit sentence.

[135]

This takes me to
    the offence of production of child pornography for which the respondent has
    been convicted. Pursuant to s. 163.1(2)(a) of the
Code
, this offence
    carries a minimum sentence of one year imprisonment and a maximum of ten years.

[136]

In this case,
    given the circumstances surrounding the offence, the minimum sentence cannot be
    justified. The sexual activity displayed was explicit and extreme. The
    offenders own child was the victim. There were repeated instances of his
    recording the sexual abuse and the victim knew this.

[137]

The lack of
    evidence concerning the use to which the offender made or planned to make of
    the recordings does not, in my view, limit the victims suffering. While being
    violated by her father, the victim had to endure the additional horror of
    knowing that he was making a record of the assaults.  She then had to endure
    the continuing horror of knowing that the videos were in her fathers
    possession for his enjoyment, at any time.

[138]

Similarly, the
    fact that there is no evidence that the offender intended to distribute the
    images of his daughter or the other children is of little moment.  But for the
    offenders apprehension and the discovery of the images of child pornography in
    the offenders possession, his daughter and the other children depicted in the
    images and videos would remain victims of abuse on an ongoing basis.

[139]

The offender
    also pleaded guilty to possession of child pornography.  In his possession he
    had videos and over 1,800 still images. Compared to other cases of
    substantially larger collections of child pornography, the offenders
    collection is not as extensive, but is certainly significant, indicating a
    strong proclivity to child exploitation.  Furthermore, my review of the images
    revealed a collection containing vile photographs of children of various ages,
    some barely beyond being toddlers, engaging in sexual activity with each other
    and adult men. Thus, the offender contributed to the abuse of countless young
    children. These are all crimes of unspeakable violence that give rise to
    unspeakable harm, much of which will take a long time to be understood and even
    longer, if ever, to come to an end.

[140]

Under all of
    these circumstances, I would grant leave to appeal, allow the appeal, and
    increase the sentence for sexual assault, incest and sexual interference to
    eight years, on all these counts concurrent to each other. I would impose a
    sentence of four years for the production of child pornography.

[141]

I recognize that
    there is an overlap between the sexual abuse charges and the production of
    child pornography charge, but the latter is nevertheless a separate charge with
    distinct elements that carry significant aggravating features. On that basis,
    but for the totality principle discussed below, I would make this sentence
    consecutive.  Likewise, I would impose a separate consecutive sentence of one
    year for possession of child pornography. Although not pressed on appeal, I
    would make the six-month sentence for careless storage of a firearm consecutive
    to the sentence served for the other offences.

[142]

However, in
    arriving at a fit sentence, the principle of totality must be considered (
Criminal
    Code
, section 718.2(c)), recognizing as did my colleague, that in
R.
    v. D.G.F
., 2010 ONCA 27, 98 O.R. (3d) 241, this court stressed the
    importance of not allowing the totality principle to interfere with the
    imposition of a sentence that recognizes the overall gravity of the offenders
    conduct: see paras. 20 and 27.

[143]

Given the
    overall gravity of the offences and the degree of responsibility of the
    offender, and taking all of the aggravating and mitigating circumstances into
    account, and also considering the Crowns position at trial and maintained on
    appeal of nine years imprisonment, I would impose a global sentence of nine
    years. This would be accomplished by imposing eight years for the sexual
    assault, sexual interference and incest convictions, concurrent to each other;
    four years for the making child pornography conviction, concurrent; and one
    year consecutive for the possession of child pornography conviction. I would
    not interfere with the six-month concurrent sentence for the firearms offence.

[144]

This would yield
    a total effective sentence of nine years.  Allowing 22 months credit for the
    period of 11 months pre-sentence custody, the total sentence to be served would
    be seven years plus two months imprisonment.

Irrespective of the Evidentiary
    Issue, the Sentence Imposed by the Trial Judge Is Unfit

[145]

With great
    respect, I disagree with the view of my colleague  following his conclusion
    that the trial judge did not err in his treatment of the disc  that based on
    the deference owed to the trial judge in determining a fit sentence, the
    sentence should not be disturbed.

[146]

Among other
    factors, I note that after reviewing the mitigating factors, the trial judge
    indicated the balance he sought to strike with a global sentence of six years:

...I hope to impose a sentence that will balance the need for
    society to condemn [the offender] and [his] acts while leaving the door open to
    the prospects for successful reconciliation.

[147]

This
    demonstrates that the trial judges approach departed from that mandated by s.
    718.01 of the
Criminal Code
, which, as my colleague notes, provides
    that where the victim of sexual abuse is a child under the age of 18, the
    primary objectives of sentencing are deterrence and denunciation.  Here, the
    trial judge erred in principle by focusing on rehabilitation and reconciliation
    with the victim at the cost of adequate attention to denunciation and
    deterrence.

[148]

In my view, in
    the light of the seriousness of the offences, the direction of the law, and my
    analysis of the other s. 718 factors, much of which explicitly and implicitly
    takes issue with the analysis of the trial judge, the sentence the trial judge
    imposed was not just and appropriate.  The aggregate sentence he arrived at
    was not a high price within the reasoning of
D.(D.)
and is
    demonstrably unfit.

III.      CONCLUSION

[149]

The offenders
    abuse of his young daughter was horrendous and prolonged. His abuse of the
    countless other victims depicted in his child pornography collection is serious
    and, given the preparedness of depraved individuals to use the internet to
    share their passion for child pornography, must be strongly condemned. In the
    light of the degree of the offenders moral culpability and the recent
    direction Parliament and this court in attempting to address the harm caused by
    sexual predators of young children and the importance to be placed on
    denunciation and deterrence, I would grant leave to appeal sentence, allow the
    appeal and impose a global sentence of nine years imprisonment less 22 months
    credit for the 11 months of pre-trial custody.

Signed:        G. J. Epstein J.A.

Released: MR MARCH 16, 2012


