



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Walker, 2021 ONCA 863

DATE: 20211201

DOCKET: C69097

Strathy C.J.O., Hourigan and
    Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Richard Walker

Appellant

Matthew Gourlay, for the appellant

Kristen Pollock, for the respondent

Heard: November 26, 2021

On appeal from the sentence imposed on February
    2, 2021 by Justice Judy A. Fowler Byrne of the Superior Court of Justice,
    sitting with a jury.

REASONS FOR DECISION

[1]

The appellant was found guilty of accessing
    child pornography, possessing child pornography, and making child pornography
    available. He was sentenced to
three years custody for
    making child pornography available and two years concurrent on the possession count.
    The trial judge also imposed several ancillary orders, including an order under
    s. 161 of the
Criminal Code
, R.S.C. 1985, c. C-46. A conditional stay
    was entered on the accessing child pornography count on the basis of
Kienapple
    v. R.
, [1975] 1 S.C.R. 729.

[2]

The appellant seeks leave to appeal his
    sentence, raising three grounds of appeal: (i) the trial judge erred in deeming
    his lack of insight into his offending behaviour to be an aggravating factor;
    (ii) the trial judge erred in failing to reduce the sentence as a collateral
    consequence of COVID-19, and (iii) these errors rendered the resulting sentence
    demonstrably unfit and it should be reduced to a global sentence of two years
    in custody. At the close of oral argument, we dismissed the appeal with reasons
    to follow. These are our reasons.

[3]

Regarding the first ground of appeal, the trial
    judge found in her reasons for sentence
that the fact
    that there was no sign that [the appellant] has any insight into the
    seriousness of the offences was an aggravating factor. The appellant relies on
R. v. Reeve
, 2020 ONCA 381, 151 O.R. (3d) 65, for the proposition that
    a lack of remorse cannot be treated as an aggravating factor because to do so
    would come very close to punishing the offender for making full answer and
    defence.

[4]

In our view, this case is distinguishable from
Reeve
.
    First, the issue in the present case was a lack of insight and not a lack of
    remorse. In addition, in the case at bar, the thrust of the defence submission
    was that the appellant posed a low risk to re-offend and that a conditional
    sentence was fit in the circumstances. In considering that argument and the
    issue of future dangerousness, it was open to the trial judge to consider that
    the appellant did not appear to understand the seriousness of the offences:
R.
    v. Hawley
, 2016 ONCA 143, at para. 5,
R. v. Shah
, 2017 ONCA 872,
    at para. 8. Consequently, we do not give effect to this ground of appeal.

[5]

Concerning the second ground of appeal, the
    appellant filed letters from his parents, friends, and former coworkers that
    expressed concern about how he would fare if incarcerated given his health
    issues. The letters did not otherwise expand on these health issues and stated
    only that in the past, the appellant required the use of a C-PAP machine. The
    trial judge, citing
R. v. Morgan
, 2020 ONCA 279, noted that the collateral
    consequences of the pandemic could not be used to reduce a sentence to the
    point where it becomes disproportionate to the gravity of the offence or the
    moral blameworthiness of the offender. She found that the pandemic had a
    minimal mitigating impact on the appellants sentence.

[6]

The appellant submits that the trial judge
    appears to have understood
Morgan
to stand for the proposition that
    any meaningful reduction in sentence to reflect COVID conditions would render a
    sentence non-proportionate." We disagree. A fair reading of the trial
    judges reasons for sentence makes clear that she correctly held that
    collateral consequences cannot be used to reduce a sentence to the point where
    it is no longer proportionate. Her finding that the pandemic has a minimal
    mitigating impact on the appellants sentence does not suggest that she
    misunderstood the case law. Instead, she considered the aggravating factors so
    severe that this mitigating factor would not substantially reduce the sentence.
    A sentencing judge's decision regarding the pandemic's impact in a particular
    case is a matter of discretion and is entitled to deference. In our view, the
    trial judge reasonably exercised that discretion, and there is no basis for
    this court to interfere.

[7]

Regarding the third ground of appeal, we do not
    find that the sentence imposed was unfit. The trial judge was mindful of the
    admonition in
R. v. Friesen
, 2020 SCC 9, 444 D.L.R. (4th) 1, that
    sentencing judges must impose sentences commensurate with the gravity of sexual
    offences against children and that reflect the consequential harm to children.
    The trial judge carefully assessed the
Friesen
factors and noted that
    the appellants case fell on the high end of the frequency factor because he
    placed the material on a peer-to-peer file sharing platform for anyone to
    obtain, review, and redistribute. In addition, the trial judge found that the
    victims ages were a particularly aggravating factor in this case because the
    children were prepubescent, with some appearing to be toddlers. Finally, the
    trial judge also found the degree of physical interference to be great because
    the material depicted digital and penile penetration, penetration by objects,
    fellatio, and aggression.

[8]

We do not find the appellants submissions in
    support of his position that his sentence should be reduced to be compelling.
    He primarily relies on jurisprudence that was decided prior to the Supreme
    Courts decision in
Friesen
. Further, the appellants submissions on
    the size of the collection of materials in his possession as compared to the
    materials held by other defendants in past cases is unpersuasive. Sentencing
    for child pornography offences is not done by means of a strict mathematical
    formula tied solely to the quantity of pornographic materials without regard to
    other factors. Such an approach overlooks the importance of the content of the
    materials and other relevant considerations. The trial judge focused on the
    egregiousness of the materials in the appellants possession, and this was a
    significant factor in her sentencing decision. We see no error in that
    analysis.

[9]

For these reasons, we grant the appellant leave
    to appeal sentence but dismiss his sentence appeal save for a correction to the
    trial judges s. 161 order under the
Criminal Code
. On consent, the
    s.161 order shall be amended so that it tracks the language in para. 86(e)(i)
    of the reasons for sentence. The sentence appeal is otherwise dismissed.

G.R.
    Strathy C.J.O.

C.W.
    Hourigan J.A.

David
    M. Paciocco J.A.


