Her Majesty the Queen - v. -, 2016 SKPC 16

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 016 Date: February 16, 2016 Informations: 38278764; 46960523 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kevin Hudec Appearing: Loreley Berra For the Crown Maria Pappas , Q.C. For the Accused JUDGMENT J.D. KALMAKOFF , J INTRODUCTION [ 1 ] On April 8, 2015, Kevin Hudec pled guilty to the following offences, all of which were committed in Regina between January 30, 2013 and May 21, 2013:

(1) Accessing child pornography, contrary to

section 163.1(4.1) of the Criminal Code ;

(2) Possessing child pornography, contrary to

section 163.1(4) of the Criminal Code ;

(3) Breach of probation, by having contact with children under 16 years of age, contrary to

section 733.1 of the Criminal Code ; and

(4) Breach of probation, by possessing computer equipment capable of accessing the internet, contrary to

section 733.1 of the Criminal Code . [ 2 ] Because of Mr. Hudec’s record for child pornography-related and other sexual offences, the Crown applied under

section 752.1 of the Criminal Code for an order remanding him for the purpose of having an assessment conducted for use in a proceeding under

Part XXIV of the Criminal Code. I granted that application, and the requisite assessment was conducted. [ 3 ] The Crown now applies to have Mr. Hudec sentenced as a long-term offender, pursuant to

section 753.1 of the Criminal Code . [ 4 ] The Crown submits, and Mr. Hudec agrees, that it is appropriate that he be found to be a long-term offender under

section 753.1 , and that his sentence include an order, pursuant to

section 753.1(3)(b), that he be subject to long-term supervision for a period of ten years. The parties disagree, however, on the appropriate sentence of imprisonment to be imposed, and what credit Mr. Hudec should receive for pre-sentence custody. THE CURRENT OFFENCES [ 5 ] On May 3, 2010, Mr. Hudec was sentenced to two years imprisonment, followed by three years probation, for the offence of making child pornography available for distribution. The probation order, which began on May 2, 2012, contained a number of conditions, including one that prohibited Mr.

Hudec from having contact with persons under the age of 16, except while in public or while in the company of an adult person informed of the probation conditions, and one that prohibited him from possessing computers or devices capable of accessing the internet. It also contained a condition requiring Mr. Hudec to allow police to enter and search his residence to monitor compliance with conditions. [ 6 ] On May 11, 2013, a probation officer who was familiar with Mr. Hudec saw him while shopping at a Wal-Mart store in Regina. Mr. Hudec was with a woman and two children.

The probation officer became concerned, because she was aware of Mr. Hudec’s offence history, knew he was on probation, and was concerned that he may be in violation of conditions. She contacted Mr. Hudec’s supervising probation officer, Corey Berenyi, to advise him of what she had seen. [ 7 ] This led to an investigation, during which the police interviewed the woman that Mr. Hudec was with at the Wal-Mart that day. The woman, T.G., said that she and Mr. Hudec had been dating since December of 2014. She said Mr. Hudec stayed at her house on occasion, and frequently spent time with her two sons, aged 10 and 13.

In fact, the younger boy had occasionally stayed overnight with Mr. Hudec, by himself. Mr. Hudec had never disclosed his offence history, or the nature of his probation conditions to T.G. [ 8 ] The investigation also revealed that Mr. Hudec bought a laptop computer for T.G.’s sons, and that he would often use the computer when he was at T.G.’s house with the boys. [ 9 ] Having received this information, police attended to Mr. Hudec’s residence, to conduct a search under the authority granted by the conditions of his probation order. In Mr.

Hudec’s residence, they located a number of flash drives, an Xbox gaming system, an Xbox 360 gaming system, and a number of DVDs. Further investigation revealed that the Xbox 360 gaming system, which Mr. Hudec had borrowed from a friend, was capable of accessing the internet. [ 10 ] Police seized and searched the laptop computer that Mr. Hudec had purchased for T.G.’s sons. It contained 217 videos that were child pornography. 166 of those were in the “allocated” space, meaning they were fully accessible to anyone using the computer.

Another 51 were in “unallocated space”, meaning they had been deleted from the readily accessible storage in the computer, but were discoverable through forensic examination. The computer also contained 281 child pornography images in the allocated space, and more than 5200 child pornography images in the unallocated space. A number of file sharing programs had also been installed on the computer. This was concerning, because they were of the type frequently associated with peer-to-peer sharing of child pornography files. Mr. Hudec admitted that he was responsible for all of this material.

[ 11 ] Forensic examination also determined that Mr. Hudec had used external devices, such as the flash drives, to open child pornography files and view them on the computer. He also used the external devices to store the files, which included both photographs and videos, and move them to and from the computer. The titles of many of these files suggested that they contained depiction of explicit sexual acts involving children as young as 5, some with adults, and some with other children. [ 12 ] A registry artefact search of the computer revealed that a number of the files accessed regularly by Mr.

Hudec included keywords such as “Pedo”, “PTHC”, and “preteen”, which all commonly refer to child pornography. In essence, this showed that Mr. Hudec was frequently using the computer to access the child pornography videos and images stored on the external devices such as the flash drives, and had been doing so between January and May of 2013. Further forensic examination showed that Mr.

Hudec, during that time, frequently conducted internet searches using terms such as daddy/daughter/teens/incest, and also that he was involved in online chat groups using terms such as “dad & daughter sex” and “young girl sex”. [ 13 ] In addition to that, logs from online chat applications revealed that, in April of 2013, Mr. Hudec was engaging in sexual discussions with someone who appeared to be a 9 year old girl, and actively trying to entice her to send Mr. Hudec pictures of herself. In another chat, Mr. Hudec had a discussion with another user of the chat room regarding sexual experiences with children. Mr.

Hudec said his “youngest was 11", and that she was his “girlfriend’s daughter”. [ 14 ] Mr. Hudec was arrested on May 30, 2013. He had a show cause hearing on June 3, 2013, and was denied bail. He has been in custody ever since. THE OFFENDER [ 15 ] Mr. Hudec is 46 years old. He is single. He was adopted when he was a baby, and grew up in Moose Jaw. His adoptive parents have both passed away; his mother in 1987, and his father in 2013. Mr. Hudec was socially awkward and subjected to bullying while in school. He was sexually assaulted by a male neighbour when he was 14. [ 16 ] Mr.

Hudec completed high school, graduating from Grade 12 in 1987. His mother passed away earlier that year, and that was a traumatic experience for him. Following graduation from high school, Mr. Hudec completed a year of post-secondary education at a career college in Saskatoon, where he studied computer programming and systems analysis. [ 17 ] Over the course of his adult life, Mr. Hudec’s employment history has been sporadic.

Initially, his difficulty in maintaining employment was mainly due to lack of motivation on his part, but in recent years, his criminal offending has made him extremely undesirable to employers. He has also had very few functional relationships with adult women. [ 18 ] Mr. Hudec has been diagnosed as a pedophile. Pedophilia is a disorder in which an adult person’s sexual urges are focussed on children. According to Dr. Lohrasbe, who conducted the assessment ordered under s. 752.1 in this case, it is a diagnosis which clearly applies to Mr. Hudec. Dr.

Lohrasbe also noted in the report that pedophilia is an established sexual preference, usually established early in life, and something which is not changeable. Dr. Lohrasbe also noted that Mr. Hudec has some antisocial and other dysfunctional personality traits, and exhibits symptoms of depressive disorder. [ 19 ] The last fifteen years of Mr. Hudec’s life have been characterized by repeated offending. His criminal record reflects a significant and unresolved problem with child pornography-related offences. During his recent time in custody awaiting sentencing, Mr.

Hudec has returned to his Roman Catholic Faith, and has immersed himself in Christian teachings, where he says he has found a new strength. CRIMINAL RECORD

[ 20 ] Mr. Hudec’s Criminal Record contains the following entries: 1992-01-29 Theft Under $1000 $50 I-D 15 days & surcharge $10 Moose Jaw, SK sec 334(

b) CC 1992-05-06 Theft Under $1000 $100 I-D 30 days & surcharge $10 Moose Jaw, SK sec 334(

b) CC 1994-11-07 Fraud sec 380 CC $350 I-D 60 days, probation 6 mos Moose Jaw, SK & surcharge $30 2002-12-16 Poss of Child Pornography 1 Yr Conditional Sentence Order & Saskatoon, SK sec 163.1 CC (2 charges) Probation 2 years & prohibition regarding Children under age 14 for 1 yr 2004-03-23

(1) Driving while ability (1) $900 I-D 16 days & proh dri 1 yr Moose Jaw, SK impaired sec 253(

a) CC

(2) Fail to comply with (2) $250 I-D 11 days Undertaking sec 145(3) CC 2004-11-30 Driving while disqualified $700 I-D 13 days Moose Jaw, SK sec 259(4) CC 2006-04-06

(1) Poss of Child Pornography (1-2) 1 day & Probation 2 yrs on each chg Moose Jaw, SK sec 163.1(4) CC

(2) Fail to comply with probation order sec 733.1 CC 2006-06-15 Sexual Assault sec 271 CC 1 day & probation 18 mos Moose Jaw, SK & mandatory prohibition order sec 109 CC 2007-02-20 Fail to comply with probation 75 days & probation 3 yrs Moose Jaw, SK order sec 733.1 CC 2010-05-03 Imports, distributes, sells or 2 yrs & (credit for the equivalent of 2 mos Moose Jaw, SK poss for the purpose of pre-sentence custody) & probation 3 yrs

distribution or sale any child pornography sec 163.1(3) CC PREVIOUS OFFENCES OF SIGNIFICANCE

(1) Possession of Child Pornography (2 charges) - sentenced December 16, 2002 [ 21 ] These offences occurred on May 31, 2000. At the time, Mr. Hudec was working for a trucking company in Saskatoon. His manager noticed that Mr. Hudec was spending an inordinate amount of time on his computer at work, so the manager decided to check the computer. He also looked through Mr. Hudec’s desk and found a number of disks that contained images of naked young girls, as well as written stories about adults having sex with children.

The manager reported his findings to the police, and turned over the material that had been located. [ 22 ] When the police examined the material, it was discovered that the disks belonging to Mr. Hudec contained written material describing sexual relationships between adults and children, as well as stories about incest. A number of the disks also contained sexually explicit photographs, of girls between 5 and 9 years of age. One disk contained a photograph of an adult male urinating into the mouth of a girl who appeared to be between 5 and 7 years of age. Forensic analysis of the computer showed that Mr.

Hudec had downloaded 176 images of child pornography, and also that he had altered the written stories contained on the disks, to insert his own name in place of the name of the adult characters in the stories. [ 23 ] Mr. Hudec was charged with, and pled guilty to two counts of possession of child pornography. He spent 3 days in custody, and nearly 22 months on strict bail conditions before being sentenced. At his sentencing hearing on December 16, 2002, the Court imposed a one year conditional sentence order, followed by one year of probation.

The terms of the conditional sentence and probation order included a requirement that Mr. Hudec comply with sex offender programming, that he be prohibited from having access to the internet, prohibited from possessing pornography, and that he permit police to enter and search his residence to monitor compliance with terms, along with various ancillary orders (including a DNA sample order, forfeiture of the computer equipment and other items seized by police, and an order under s. 161 of the Criminal Code ). [ 24 ] A Pre-Sentence Report filed at the sentencing hearing noted that Mr.

Hudec ...has very little knowledge of his offence cycle. He does harbour some guilt over what he has done and does take some responsibility, but not fully. The subject has no victim empathy in relation to this matter, as he felt it was in the privacy of his own home, no one else was around, and he was not offending anyone else. He is not understanding of the way the pictures were obtained, the coercion and misuse of the child involved in these pictures did not register with the subject. [ 25 ] At the sentencing hearing, Mr. Hudec’s lawyer said, of the child pornography, that Mr.

Hudec never had such inclination or tendencies before, and that he initially did not realize how serious it was. Mr. Hudec also said, through his lawyer, that it would be the last time he would ever engage in that sort of behaviour.

(2) Possession of Child Pornography and Breach of Probation - sentenced April 6, 2006 [ 26 ] As it turned out, Mr. Hudec’s assurances to the Court that he would never again engage in that sort of behaviour were not accurate. [ 27 ] In late 2005, Mr. Hudec used a computer to access an online dating site. This was a violation of his probation order. Another person became aware of this, and contacted police. When officers attended Mr. Hudec’s residence to investigate, Mr. Hudec was

cooperative. He told the officers that they would find child pornography on his computer when they searched it. Subsequent forensic examination located 440 images on Mr. Hudec’s computer that were child pornography, as well as 48 child pornography videos. [ 28 ] Mr. Hudec spent 107 days in remand (he was arrested on December 18, 2005 in relation to another matter), and then pled guilty to the charges. The Crown and defence jointly recommended that Mr.

Hudec receive 6 to 7 months credit for his remand time, and that he be sentenced to a further period of one day in custody, followed by two years probation, with terms including sex offender treatment, and prohibitions from using the internet or possessing pornography. The Court imposed the sentence jointly recommended.

(3) Sexual Assault - sentenced June 15, 2006 [ 29 ] Mr. Hudec had befriended the mother of a 12 year old girl named A.S. On occasion, Mr. Hudec would drive A.S. to school. On December 15, 2015, a teacher observed Mr. Hudec kissing A.S. when he was picking her up from the school. The kiss, which the teacher described as “passionate”appeared to last for nearly 20 seconds. Mr. Hudec was arrested a few days later, and remained in custody until the date of his sentencing. [ 30 ] Mr. Hudec pled guilty to the charge, without a trial or preliminary hearing.

The fact that he spared the victim from testifying was considered to be a significant mitigating factor in determining Mr. Hudec’s sentence. Counsel agreed that Mr. Hudec should be given credit for the 66 days of pre-sentence custody (from April 6, 2006 to June 15, 2006, the time which he was remanded on this charge alone, and not the other charges for which he was sentenced on April 6, 2006), at the then-accepted rate of 2:1, and that he be sentenced to a further one day of custody, followed by 18 months probation. The Court imposed the sentence jointly recommended. [ 31 ] At the time of sentencing, Mr.

Hudec said, through his lawyer, that although he had no subjective sexual intent, he agreed that the act, viewed objectively, was sexual.

(4) Breach of probation - sentenced February 20, 2007 [ 32 ] The probation order imposed on Mr. Hudec in June of 2006 prohibited him, among other things, from being alone with any person who appeared to be under the age of 18. [ 33 ] In October of 2006, Mr. Hudec became involved in a relationship with a woman. He did not tell her about his criminal history. The woman had a 7 year old daughter. On three occasions, Mr. Hudec spent time alone with the 7 year old, in contravention of his probation order. [ 34 ] Mr.

Hudec was arrested, spent 35 days in custody before sentencing (for which he was credited with having served the equivalent of 70 days), and pled guilty to the charge. He was sentenced to a further 75 days in custody, followed by 3 years of probation. [ 35 ] Once again, the probation order included a requirement that he participate in sex offender programming, and that he not be alone with anyone who was, or appeared to be, under 18 years of age.

(5) Making child pornography available for distribution - sentenced May 3, 2010 [ 36 ] In November of 2009, a police investigation directed at chat rooms used by those interested in child pornography brought Mr. Hudec to the attention of the authorities once again. Messages sent by Mr. Hudec to other users of the chat room indicated that he was looking to meet mothers who had children (or to meet the children themselves) who liked to have their toes sucked. Through further investigation, police determined that, between November 5, 2009 and January 21, 2010, Mr.

Hudec had made child pornography available for others to download through a peer-to-peer sharing network. Once again, Mr. Hudec was on probation throughout this whole time frame.

[ 37 ] Records from Mr. Hudec’s probation file ( Case Management Activity Report dated December 23, 2009) show that while he was committing this offence, he was reporting regularly to his probation officer, and telling his probation officer that everything was fine. In that report, probation officer Shauna Anderson wrote: Kevin still really minimizes his offences. He also states that he has learned from his past mistakes and has made changes to his life and would never sexually offend again. Despite saying that, Mr. Hudec was already committing new child pornography offences. [ 38 ] Mr.

Hudec was arrested on March 11, 2010, and spent 54 days in custody before pleading guilty. He was sentenced to an additional two years in a federal penitentiary, followed by 3 years of probation. Mr.

Hudec agreed to the imposition of a 2 year sentence, because a penitentiary term of imprisonment would give him access to more intensive sex offender programming. [ 39 ] The conditions of the probation order that would follow his prison term once again included participating in sex offender treatment, a prohibition from possessing pornography, and prohibitions from accessing the internet, or possessing computers or other devices capable of so doing, as well as permitting police to search his residence to monitor compliance with terms, and also that he not have contact with any person under the age of 16 unless in public or in the presence of an adult who was aware of the probation conditions. [ 40 ] Of course, Mr.

Hudec breached this probation order when he committed the offences for which he is now being sentenced. POSITION OF THE PARTIES [ 41 ] The only dispute in this case is over the length of the appropriate term of imprisonment. The Crown seeks a sentence of 6 years and 6 months, comprised of 5 years for the child pornography-related charges, and 18 months, consecutive, for the breach of probation charges. The Crown argues that Mr. Hudec should be given appropriate credit for pre-sentence custody, keeping in mind the Court’s discretion in that calculation, to ensure that a fit sentence is imposed. [ 42 ] Mr.

Hudec argues for a shorter sentence. As of today, he has been in custody on these matters for 992 days. He argues that, since nothing in the circumstances of this case precludes consideration of enhanced credit for that custody under s. 719(3.1) of the Criminal Code , I should give him credit for that time at a rate of 1.5 to 1, which would work out to 1,488 days. In essence, he argues that he has already served the equivalent of a four year sentence and, as such, I should impose no further term of imprisonment. LONG-TERM OFFENDER PROVISIONS [ 43 ] By virtue of the operation of sections 752.1(1) and 753.1(2) (

a) of the Criminal Code , a long-term offender sentence is available for the offences of accessing and possessing child pornography. [ 44 ]

Section 753.1 of the Criminal Code governs long-term offender proceedings. The portions of that

section relevant to this application read as follows: 753.1(1) Application for finding that an offender is a long-term offender The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that

(

a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (

b) there is a substantial risk that the offender will reoffend; and (

c) there is a reasonable possibility of eventual control of the risk in the community. 753.1(2) Substantial risk The court shall be satisfied that there is a substantial risk that the offender will reoffend if (a) ... 163.1(4) (possession of child pornography) or 163.1(4.1) (accessing child pornography) ..., or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and (

b) the offender (

i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender's causing death or injury to other persons or inflicting severe psychological damage on other persons, or (ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offence. 753.1(3) Sentence for long-term offender If the court finds an offender to be a long-term offender, it shall (

a) impose a sentence for the offence for which the offender has been convicted, which must be a minimum punishment of imprisonment for a term of two years; and (

b) order that the offender be subject to long-term supervision for a period that does not exceed 10 years. ... 753.1(6) If offender not found to be long-term offender If the court does not find an offender to be a long-term offender, the court shall impose sentence for the offence for which the offender has been convicted. [ 45 ] In this case, Mr. Hudec admits that the requirements of

section 753.1(1) are met. And, based on the evidence before me, I am more than satisfied that such an admission is appropriate. I will explain. [ 46 ] First, I am satisfied that a sentence of imprisonment of two years or more is appropriate for the offences that Mr. Hudec committed. This is the fourth time Mr. Hudec has been convicted of child pornography-related offences, and brings the total number of that type of offence he has committed to six. He also has a previous conviction for sexual assault, in which the victim of the offence was a 12 year old girl.

His sentences for the child pornography-related offences have increased from a one year conditional sentence of imprisonment, to 6 months imprisonment (when credit for remand time is factored in) to 2 years and 4 months (again, when credit for

remand time is factored in), each followed by increasingly lengthy probation orders. He also received a jail sentence for the sexual assault conviction. This is also now the third time he has been convicted of breaching conditions of probation, relating to either conditions prohibiting contact with children, or conditions prohibiting his use of computers. [ 47 ] Given his criminal history, and the relevant jurisprudence, which I will discuss in more detail in these reasons, there is no question that a sentence of more than two years is appropriate for Mr.

Hudec. [ 48 ] Second, I am satisfied that there is a substantial risk that Mr. Hudec will re-offend. His situation falls squarely within the presumption created by

section 753.1(2) , in that possessing and accessing child pornography are offences listed in s. 753.1(2) (a), and his conduct - repeated offending despite repeated arrest, conviction and incarceration - very clearly demonstrates a likelihood of causing pain, injury or other evil to other persons in the future through similar offences. [ 49 ] In addition to that, Dr. Lohrasbe, who conducted the Court-ordered assessment under s. 752.1, noted at p. 24 of his report: An opinion regarding Mr.

Hudec’s risk for the first kind of risk (further possession and viewing of child pornography) emerges readily and directly from the known facts: he is at high risk. Mr. Hudec has had ample opportunity to desist as the structures for his rehabilitation were in place. He had identified his risk factors, completed both the most intense program available in the ‘system’ and a follow up maintenance program, understood the impact on victims of child pornography and verbalized his remorse.

Once back in the community he had the support of supervisors, found employment, was in an apparently caring relationship, was in the early stages of establishing the normalcy of family life. Yet he proceeded to purchase a computer that he used to access child pornography, a process with several steps, over time. With that history, the inexorable conclusion is that he is at high risk for further child pornography-related offences. [ 50 ] It is also noteworthy that Dr. Lohrasbe expresses the opinion that Mr. Hudec suffers from Pedophilic Disorder, which is a strong sexual interest in children.

That will not change, even with intensive treatment. While pedophilia does not necessarily translate into sexual offending, it has in the past in Mr. Hudec’s case. Despite repeated arrest, conviction and incarceration, he has continued to pursue a sexual interest in children through the viewing of child pornography. He has also continued to put himself in situations of risk, including seeking out relationships with young children. Furthermore, Mr.

Hudec’s communication through the chat rooms during this offence and past offences suggests that he was trying to seek out contact with mothers and children for actual sexual experiences, rather than just child pornography. [ 51 ] Even if there were no risk of Mr.

Hudec committing “contact” offences in the future, the high risk that he poses for committing further child pornography-related offences clearly amounts to a risk of causing “injury, pain or other evil to other persons”, within the meaning of s. 753.1(2) (b)(ii). [ 52 ] The “injury, pain or other evil to other persons” inherent in child pornography-related offences was aptly described by Justice L’Heureux-Dube in R v Sharpe , 2001 SCC 2 , [2001] 1 SCR 45 [ Sharpe ], at para 158 : The very existence of child pornography...is inherently harmful to children and to 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. The harm of child pornography is inherent because degrading, dehumanizing and objectifying depictions of children, by their very existence, undermine the Charter rights of children and other members of society. Child pornography eroticises the inferior social, economic, and sexual status of children. It preys on preexisting inequalities. [ 53 ] Therefore, in my view, Mr.

Hudec’s conduct in the commission of the offences for which he is now being sentenced, coupled with his criminal history clearly demonstrates a likelihood of Mr. Hudec committing similar offences in the future, and causing “injury,

pain, or other evil to other persons” as a result, whether or not there is any risk of him committing “contact” offences. [ 54 ] Third, I am satisfied that there is a reasonable possibility of the eventual control of Mr. Hudec’s risk in the community. The evidence demonstrates that, in the past, Mr. Hudec responded well to being closely supervised while on parole. However, when the frequency of contact and level of supervision decreased, as occurred under probation supervision, Mr. Hudec returned to offending.

A long-term supervision order would provide the more intensive level of supervision, and greater frequency of contact with therapists and correctional supervisors that Mr. Hudec requires. It would provide this for up to 10 years following his release. In addition to that, as Dr. Lohrasbe points out, Mr. Hudec is keenly aware of the seriousness of his situation, and the fact that he faces strong penalties if he re- offends. Fear of such consequences may be a powerful motivator. [ 55 ] Having determined that I am satisfied that all the criteria in s. 753.1(1) have been established, I find Mr.

Hudec to be a long- term offender. IMPOSING A SENTENCE FOR THE OFFENCES FOR WHICH MR. HUDEC HAS BEEN CONVICTED [ 56 ] Having made that finding, s. 753.1(3) requires that I impose a sentence for the offences for which Mr. Hudec has been convicted, and determine the length of the long-term supervision order. [ 57 ] The two aspects of a long-term offender sentence - namely the period of imprisonment, and the period of community supervision - are different, and I must be careful to consider them separately when deciding on the appropriate sentence.

The period of long-term supervision is not to be taken into account when determining the acceptable length of incarceration.

The period of imprisonment and long-term supervision orders are two separate components of the sentence; each serve different functions and are to be determined using somewhat different criteria: R v M.(L.) , [2008] 2 SCR 163 , 2008 SCC 31 [ M.(L.) ] . [ 58 ] In M.(L.) , the Court described the distinction between determining the appropriate length of imprisonment and the appropriate length of long-term supervision as follows: [46] These two types of decisions can be distinguished on the basis of the objectives and methods, and certain technical aspects, of the sentencing process.

The principal objective of a prison sentence is punishment, although the sentence must be determined in accordance with the principles set out in the Criminal Code . On the other hand, the objectives of and rationale for the supervision of an offender in the community are to ensure that the offender does not reoffend and to protect the public during a period of supervised reintegration into society.

The British Columbia Court of Appeal mentioned this distinction in a recent judgment: The fixed sentence and supervision orders focus on two different goals: the former on punishment for the predicate offence, the latter on prevention of future criminal conduct. In the latter the predicate offence plays a relevant role as an indicator of risk. ( R. v. Blair (2002), 167 B.C.A.C. 21 , 2002 BCCA 205 , at para. 37 ; see R. v. J.G.E.S. , [2006] B.C.J.

No. 3455 (QL) , 2006 BCSC 2004 , at paras. 134 and 137 , for another example of this.) [47] Furthermore, the sentencing judge will not calculate the length of each of these steps in the same way. A number of factors are considered in determining the length of a prison sentence, including, to name but a few, the gravity of the offence, the degree of responsibility of the offender, the parity principle and the possibility of imposing a less restrictive sanction.

In contrast, the length of a period of community supervision is based on an offender ’ s criminal past and on the likelihood that he or she will reoffend, which are addressed in the assessment report. [48] Finally, in practice, the effect of a sentence is to deprive the offender of his or her liberty, whereas community supervision is aimed at reintegrating the offender into the community under the supervision of the Correctional Service of Canada. Furthermore, the period of community supervision does not begin until after the sentence (imprisonment) has been served.

From this perspective, the preferred approach for a judge considering a period of community supervision is very different from the one that must be taken in determining the length of a sentence of imprisonment.

[59] In determining the appropriate length of a long-term supervision order, protection of society is also the dominant consideration: R v Key, 2010 SKQB 95; R v Payne (2001), (ON SC), 41 CR (5th) 156 (Ont SC).

Fixing theappropriate length of the order requires an assessment of the risk of reoffending, the availability and likely effectiveness of any possibletreatment programs, and the length and level of supervision necessary to provide the required support and structure upon release fromimprisonment: R v Blair, 2002 BCCA 205, 164 CCC (3d) 453, leave to appeal to SCC refused, [2002] SCCA No 250; R v Sakebow,2004 SKCA 127, 254 Sask R 221.

In short, the length of a long-term supervision order should be tailored to the specific needs of theoffender: R v Knife, 2015 SKCA 82 at paras 95 - 97 [Knife]. [60] According to s. 753.1(3)(a), because I have found Mr. Hudec to be a long-term offender, the minimum period ofimprisonment that I can impose for the offences of possessing and accessing child pornography is two years. However, s. 719(3) saysthat I may take into account pre-sentence custody in determining the sentence to be imposed.

It is also clear that the actual sentenceimposed, going forward, can be reduced to less than two years once pre-sentence custody is taken into account: R v Quinto, 2006 SKCA100, 285 Sask R 167. [61] In determining the appropriate sentence for the offences, I am guided by the principles outlined in sections 718 - 718.2 of theCriminal Code. [62]

Section 718 says that the fundamental purpose of sentencing is to contribute to respect for law and the maintenance of a just,peaceful and safe society, by imposing just sanctions having one or more of the objectives set out in that section. Those objectivesinclude denunciation of unlawful conduct; deterring the offender and others from committing offences; separation of offenders fromsociety where necessary; rehabilitation of offenders, providing reparations to the victim and community, promoting a sense ofresponsibility in offenders, and acknowledging the harm done.

The relative emphasis to be placed on each of these objectives variesaccording to the circumstances of the offence and the offender, but in this case, s. 718.01 of the Criminal Code mandates that I giveprimary consideration to the objectives of denunciation and deterrence, because Mr. Hudec’s offences involved the abuse of personsunder the age of 18. [63]

Section 718.1 of the Criminal Code says that the fundamental principle of sentencing is proportionality. The sentence mustbe proportionate to the gravity of the offence and the degree of responsibility of the offender: R v Nasogaluak, 2010 SCC 6, [2010] 1SCR 206 [Nasogaluak]. This means that even though the emphasis given to the sentencing objectives listed in

section 718 may varyaccording to the circumstances of the case, the resulting sentence must respect the principle of proportionality: R v Alm, 2013 SKCA 40,414 Sask R 41 at para 4 [Alm]. [64] In deciding the appropriate sentence, I must also be mindful of the principles listed in

section 718.2 of the Criminal Code,including the consideration of aggravating and mitigating circumstances, totality, parity, and consideration of all reasonable sanctionsother than imprisonment.

a) Proportionality - s. 718.1 [65] Proportionality is at the heart of the sentencing regime in the Criminal Code.

It has variously been described as “central tothe sentencing process” in Nasogaluak, as the “cardinal principle of sentencing” in R v Lacasse, 2015 SCC 64 [Lacasse], and as the “sinequa non” of a just sentence in R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433. [66] A sentence which properly respects the principle of proportionality inevitably ensures that the secondary goals ofdenunciation, restraint, promotion of justice for victims, and the maintenance of public confidence in the administration of justice aremet. A proportionate sentence is neither too harsh, nor too lenient.

It properly reflects both the gravity of an offence and the moralculpability of the offender in committing it. In Lacasse, Justice Wagner said this about proportionality, at paragraph 12: ...The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will

be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moralblameworthiness of the offender. Determining a proportionate sentence is a delicate task. As I mentioned above, both sentences that aretoo lenient and sentences that are too harsh can undermine public confidence in the administration of justice... The gravity of the offence [67] The first component of proportionality is the gravity of the offence. There are three important considerations in determiningthe gravity of the offence. They are (

i) the nature and comparative seriousness of the offence, (ii) the circumstances of its commission,and (iii) the harm caused by it: R v Yuzicapi, 2011 SKCA 134, 377 Sask R 133, at para 28.

i) the nature and comparative seriousness of the offence [68] The offences of possessing and accessing child pornography are serious offences. That is axiomatic. While the maximumsentence for each is only 5 years imprisonment (as opposed to the 10 year maximum sentence for making, distributing, or making childpornography available for distribution), there are a number of other indicators of objective seriousness. [69] Parliament has chosen to impose a minimum sentence of imprisonment for the offences of possessing and accessing childpornography.

For each, the minimum sentence of imprisonment is 6 months, where the Crown proceeds by indictment. That minimumsentence was increased, effective August 9, 2012, up from a previous minimum of 45 days. That is significant, for two reasons. First,the minimum sentence of imprisonment means that conditional sentences of imprisonment are unavailable for those offences. Second,the increase in the minimum sentence of imprisonment from 45 days to 6 months means that an offender convicted of either of thoseoffences will be ineligible serve his jail sentence intermittently.

These are clear indications that Parliament intended that any childpornography-related offences be treated seriously. [70] In addition to the minimum period of imprisonment, the fact that Parliament has chosen to define possessing and accessingchild pornography as “designated offences” in s. 752 of the Criminal Code, and to include them in s. 753.1(2)(a), thus making those whocommit those offences subject to sentencing proceedings under

Part XXIV, also indicates how seriously Parliament views the offences,and the potential risk posed by those who commit them. [71] While the offenders who access and possess child pornography are not in the same category as those who actually commit thesexual abuse of the children being depicted, their actions are only marginally less serious. As Justice Ratushny noted in R v Guillemette,[2010] OJ No 5307 (Ont SC), at para 6: ...without a doubt all images of child pornography, regardless of their particular nature show violence being committed against childrenthat physically and mentally harms these young lives.

Child pornography portrays children being physically, sexually and mentallyabused.

Those who choose to record this violence against innocent children create a market for those who choose to view the violenceand who apparently have no thought to the tragedy and violence existing within the images or that with each viewing the children arebeing re-victimised over and over again. [72] In R v Kwok, (ON SC), [2007] OJ No 457, 72 WCB (2d) 533 (Ont SC) [Kwok], Justice Molloy alsocommented on the seriousness of offences such as possessing and accessing child pornography, writing, at paragraphs 49 - 50: ...the collectors of this filth are a vital part of the evil menace it represents and bear responsibility for its malignant growth right alongwith its creators... ...The depraved individuals who perpetrate this horrific abuse on innocent children obviously get some kind of extra "kick" out ofphotographing and videotaping these atrocities and having other people look at them.

Advances in technology and the Internet havemade it all too easy for these monsters to spread their filth to equally depraved "collectors" all over the world. The existence of this readyand eager consumer base can only be seen as an incitement to those who would perpetrate further child abuse, and more horrificvariations of child abuse. Further, chatrooms (such as those frequented by Mr. Kwok) in which purveyors and consumers of filth canexchange their stories and images encourage these people to believe that what they are doing is accepted and admired by their

"audience". This perpetuates and compounds the problem, fuelling the growth in creation and distribution of child pornography. [73] In R v Lynch-Staunton, 2011 ONSC 218, Justice Ratushny offered further comment about the seriousness of childpornography-related offences: 48 In proceedings such as this involving crimes against children, the focus starts with the child victims. As Moldaver J.A. (as he thenwas) said in R. v. D.D., (ON CA), [2002] O.J. No. 1061 (O.N.C.A.), at paras. 35-36, "Our children are at once ourmost valued and our most vulnerable assets ...

The horrific consequences of child sexual abuse are only too well known". 49 This is the source of the extreme harm caused by the possession and distribution of child pornography. It starts with innocentchildren who have been physically and emotionally abused by acts of sexual violence committed by depraved persons interested insatisfying their own deviant urges and in having their actions filmed and shown to others.

This starts the cycle of abuse and the sexualvictimization of these children and of other children continues so as to satisfy the "business" of production and distribution of childpornography for the curious viewer, the deviant viewer and the depraved viewer. 50 It is startling to me that for most of those who have appeared before me on similar charges of possession and distribution of childpornography, few, if any, have appeared to understand or even think about the horror of what has been done by others to the children inthe pornographic images.

Some offenders have only managed to consider the plight of these children after arrest. 51 I emphasize this because to view pictures of this kind of violence against children and especially the terrible forced violence againstbabies and very young children and to not be immediately horrified and driven away from viewing the pictures speaks to a great moralculpability on the part of an offender for having failed to grasp the obvious physical violence being committed against these innocentyoung lives.

Possession of child pornography is not simply an example of a viewing of sexual "naughtiness" or experimentation byothers. It is, always, a portrayal of terrible abuse of real children with real and life-long serious consequences. ... 54 It is the "business" of the possession of child pornography that perpetuates the cycle of the physical and mental abuse of children,even though the possessor is rarely, and certainly not in the present case in terms of the images, the original abuser.

As DetectiveCoakley testified, it is the "new" children being portrayed in child pornography images that attract the most demand in terms of the"trading card mentality" surrounding collections of child pornography. This "value" only means that new and real children are beingabused to satisfy the demand. ... 56 The availability and use of the Internet as an easy, fast and relatively anonymous distribution system for child pornography is anadditional factor that adds to the gravity of these offences. 57 As a result, the sentencing objective of general deterrence requires a forceful emphasis.

It is to be understood by those trolling theInternet for child pornography that these pictures are acts of violence against children, that viewing and possessing them perpetuates theoriginal violence, that viewing and possessing them encourages new child victims, and that as a consequence, jail terms will result. 58 It is or all of these reasons and focusing on the long-term harm to children created and perpetuated by the possession and distributionof child pornography, that these offences are to be regarded as such serious crimes. 59 It is also for these reasons that the sentencing objectives of denunciation and deterrence, both general and specific, have paramountimportance in this case, so as to try to provide some measure of protection to children. [74] While the maximum sentences available for accessing and possessing child pornography are not at the upper end of those available under the Criminal Code, there can be no doubting the objective seriousness of the offences.

ii) the circumstances of the commission of the offence [ 75 ] In Mr. Hudec’s case, there are a number of factors related to the circumstances of the commission of the offences which increase their gravity. First, there is the size of his collection. While far from the largest collection of child pornography on record, it was certainly not insignificant. A collection of more than 200 videos, and more than 5000 images suggests that Mr.

Hudec was being entertained and sexually stimulated by viewing the abuse of hundreds, if not thousands, of children. [ 76 ] In addition to that, even though there is no evidence that Mr. Hudec left the images and videos on the computer with the intention that T.G.’s sons would have access to them, the fact is that he bought the computer for those boys, who were 10 and 13 at the time. Mr. Hudec then proceeded to download large quantities of child pornography onto the computer. Whether or not Mr. Hudec intended them to, there was certainly a real chance that the boys could discover and view that child pornography.

In addition, the evidence suggests that, on top of downloading child pornography, Mr. Hudec was participating in other on-line activity aimed at having sexual contact with, and obtaining photographs directly from, children. Those circumstances all serve to increase the gravity of the offences. [ 77 ] The fact that the child pornography offences committed by Mr. Hudec were accompanied by breaches of his probation order, and specifically, breaches of the conditions designed to address his risk to re-offend, also adds to the gravity of the offences. iii) the harm caused by the offence [ 78 ] Even though Mr.

Hudec’s offences did not involve physical contact with any children, and there is no evidence that he produced or distributed child pornography on this occasion, or that he made any available for distribution, the harm caused by his offences cannot be ignored. As Judge Agnew noted in R v Stupnikoff , 2013 SKPC 57 , 416 Sask R 307 [ Stupnikoff ], the harm done by possessing and accessing child pornography is very significant, and very real: [12] As has been said before, possession of child pornography creates the market for child pornography.

Whether money changes hands or not, child pornography appears to respond to the simple law of supply and demand: people like the accused, although not creators of child pornography, create a demand for child pornography and thus stimulate its production. It is in this very real and important way that the remarks attributed to Professor Flanagan are wrong when he allegedly said that people who view child pornography “do not harm another person”. [13] Placing the conversation in terms of economic analysis makes it seem very dry and theoretical, and indeed quite sanitized.

Talking of supposed harm as a matter of supply and demand, postulating probable market responses to demand by consumers: this discussion could be taking place in a dusty classroom, complete with chalkboards and an afternoon sun making listeners doze in their chairs. [14] This is a matter which is far from dry, academic or unrelated to real people. To put the matter in more concrete terms, because of the accused and people like him there are almost certainly children, including infants, toddlers, and babies, somewhere in the world, right this instant, being raped.

At the very moment that you, the reader, are reading this, unspeakable horrors, which will scar these children physically and mentally for life, are being visited upon them for the pleasure of [the accused] and others like him. The bodies of these children are too small to accept the adult erections, or other items, being forced into them. The flesh of these children is being torn apart, their blood is being spilt, because [the accused] and his ilk enjoy watching it.

The degree of responsibility of the offender [ 79 ] In addition to considering the gravity of the offence, I must consider the degree of responsibility of the offender. In this case, I consider the degree of Mr. Hudec’s responsibility for his offences to be extremely high. [ 80 ] To begin with, this is not the first time Mr. Hudec has committed offences of this nature. This is now the fourth occasion on which he has been convicted of child pornography-related offences. He also has a conviction for another sexual offence committed against a child.

He has twice before been convicted of breaching probation conditions, of the same sort as the ones he breached in this instance. He has received conditional sentences, actual jail sentences, and probation orders in relation to those convictions. On multiple

occasions, when being sentenced, he has assured the Court that it would be the last time he commits such offences. [ 81 ] Mr. Hudec has had access to the best sex offender programming that the Correctional Service of Canada has to offer. He developed a detailed relapse prevention plan. From that, it would appear that he was fully aware of the things that he needed to do, and to avoid, in order to minimize the risk of re-offending. Despite all that, he continued to seek out risky social contact, and put himself in situations that contributed to his offending behaviour. [ 82 ] The offences Mr.

Hudec committed on this occasion were also not accidental or inadvertent. Far from it. Downloading and viewing the amount of child pornography that Mr. Hudec did in this case would have taken a number of preparatory steps. He had to acquire a computer. He had to arrange for internet access. He had to acquire external storage devices. He had to install the necessary software for peer-to-peer sharing. He had to undertake the computer searches necessary to find the videos and images, download them, view them, and store them. In addition to that, he participated in on-line chats and communications.

These actions would all have taken a significant amount of time and effort, and they were all things that he was prohibited, by his probation order, from doing. [ 83 ] In addition to that, Mr. Hudec knowingly left child pornography on the computer, even though he was fully aware that at least two children, aged 10 and 13, would have regular access to that computer. [ 84 ] Mr. Hudec committed these offences while he was on probation. He was violating several conditions of his probation order, and doing so while reporting regularly to a probation officer. Mr.

Hudec said that the offences occurred at a period when he was experiencing loneliness, grief and isolation, yet he reported none of that to his probation officer. He took no steps to access the supports and resources that were available to assist him in avoiding further offences. Unfortunately, this is also not the first time that Mr. Hudec has committed such offences while maintaining regular contact with a probation officer, and while assuring the probation officer that everything was going fine. [ 85 ] All of this is to say that the degree of Mr.

Hudec’s responsibility for the offences is very high. [ 86 ] When I consider the gravity of the offences, and the degree of Mr. Hudec’s responsibility, I come to the conclusion that a sentence at the top end of any applicable range is warranted.

b) Purposes of Sentencing -

section 718 [ 87 ] All of the purposes of sentencing listed in s. 718 must be given consideration. The relative emphasis placed on each factor varies according to the circumstances of the offence and the offender. Of course, in this case, because Mr.

Hudec’s offences involved the abuse of persons under the age of eighteen, s. 718.01 requires that I give primary consideration to the objectives of denunciation and deterrence. [ 88 ] In addition to the statutory direction in s. 718.01 , the jurisprudence is also quite clear that the focus in sentencing for child pornography-related offences must be on deterrence and denunciation: Stupnikoff , at para 58 ; R v Dean , [2010] OJ No 5305, 96 WCB (2d) 245 at para 33 (Ont SC) ; R v Houston , 2008 SKQB 174 , 316 Sask R 238. [ 89 ] When dealing with an application under

Part XXIV of the Criminal Code , protecting the public from the identified risk posed by the offender must also be a primary focus of the sentence. While rehabilitation cannot be ignored in sentencing proceedings, it cannot be permitted to detract from the focus on public protection when sentencing a long-term offender under

Part XXIV: R v Steele , 2014 SCC 61 , [2014] 3 SCR 138; R v Pelly , 2006 SKCA 60 , 279 Sask R 252 at para 30 . The length of sentence should be based on evidence relating to the amount of time necessary to provide confidence that the risk posed by the offender can be reduced to a manageable level before he is released into the community. This may require imposition of a sentence of imprisonment greater than usual range of sentencing, if that is necessary to adequately protect the public. [ 90 ] In this case, Mr. Hudec’s record of offending speaks very strongly to the need for a sentence that emphasizes specific

deterrence. To this point, Mr. Hudec has not been deterred from offending by the length or type of sentences he has received. Furthermore, his history over the last 15 years demonstrates that the only time he has been able to refrain from committing offences related to child pornography, or involving child victims, is when he has been incarcerated or very closely supervised in the community. As such, protection of the public, in Mr. Hudec’s case, demands that the objective of separation of the offender from society, mentioned in

section 718 (c), also be given high priority.

c) Relevant aggravating and mitigating factors [ 91 ]

Section 718.2(

a) says that a sentence should be increased or reduced to account for any relevant aggravating or mitigating factors. According to s. 718.2 (a)(ii.1) it is an aggravating factor that persons under the age of eighteen were abused in committing the offence. [ 92 ] In Kwok , Justice Molloy outlined a general roadmap for consideration of aggravating and mitigating factors in child pornography cases. At para 7, she wrote: Generally speaking, any of the following are considered to be aggravating factors: (

i) a criminal record for similar or related offences; (ii) whether there was also production or distribution of the pornography; (iii) the size of the pornography collection; (iv) the nature of the collection (including the age of the children involved and the relative depravity and violence depicted); (

v) the extent to which the offender is seen as a danger to children (including whether he is a diagnosed pedophile who has acted on his impulses in the past by assaulting children); and (vi) whether the offender has purchased child pornography thereby contributing to the sexual victimization of children for profit as opposed to merely collecting it by free downloads from the Internet. Generally recognized mitigating factors include: (

i) the youthful age of the offender; (ii) the otherwise good character of the offender; (iii) the extent to which the offender has shown insight into his problem; (iv) whether he has demonstrated genuine remorse; (

v) whether the offender is willing to submit to treatment and counseling or has already undertaken such treatment; (vi) the existence of a guilty plea; and (vii) the extent to which the offender has already suffered for his crime (for example, in his family, career or community). [ 93 ] Apart from the statutory direction of s. 718.2 (a)(ii.1), there are a number of other aggravating factors in Mr. Hudec’s case.

They include the following: - his record of past convictions for child pornography-related offences, and other sexual offences against children; - he was on probation for similar offences at the time of committing these offences; - he re-offended despite having received the best sex offender treatment program available during his last sentence; - he re-offended while subject to supervision, and his re-offending required significant deception on his part; - the size of his child pornography collection was significant, and would have taken considerable time and effort to amass; - his actions created a real potential that young children would be exposed to the child pornography on his computer; - he intentionally put himself and others in that situation, and did not report it to anyone; - his offence history suggests that he is unable to control his impulse to view child pornography; - he is a diagnosed pedophile, with a record that includes a conviction for sexual assault against a child. [ 94 ] There are also a number of mitigating factors, which include the following: - he has pled guilty to the offences and accepts responsibility; - he was cooperative with police once arrested; - he is remorseful; - he is willing to submit to, and participate in, treatment; - he expresses a commitment to change, and has taken some positive steps to do so, although this must be viewed with great caution in light of his history;

- he has spent a significant amount of time in pre-sentence custody.

d) Parity: sentences in similar cases [ 95 ] The principle of parity is codified in

section 718.2 (

b) of the Criminal Code . It says that an offender’s sentence should be similar to sentences imposed on similar offenders, for similar offences, committed in similar circumstances. This does not mean that sentences should be uniform. The individual nature of sentencing and the need to respect the principle of proportionality mean that disparity can exist where circumstances warrant, but such disparity should not be egregious, or unjustified. [ 96 ] Parity helps to inform the proportionality principle, by shaping and defining what is a proportionate sentence.

While parity is not a straitjacket that requires equal sentences, it does require that any difference between sentences for similar offences committed in similar circumstances be rationally explicable: R v Safarzadeh-Markhali , 2014 ONCA 627 , 316 CCC (3d) 87 at para 98 . Sentences must also be individualized. Differing personal circumstances between offenders can justify differing sentences for similar offences: R v Pham , 2013 SCC 15 , [2013] 1 SCR 739 at paras 8 - 9 .

While parity is an important consideration, the task of imposing an appropriate sentence is not accomplished by simply finding a similar case and working from it: R v Gibson , 2015 ABCA 41 at para 15 .

The focus must remain squarely fixed on crafting a proportionate sentence for the offence and offender before the court: R v Anderson , 2014 SCC 41 , [2014] 2 SCR 167 at para 25 . [ 97 ] I begin this portion of the analysis by noting, as did Judge Agnew in Stupnikoff , and the Ontario Court of Appeal in R v D.G.F. , 2010 ONCA 27 , 98 OR (3d) 241, that the jurisprudence in this area is trending towards increased penalties. In my view, there are two key reasons for this.

First, in a span of less than seven years, Parliament introduced, then increased, mandatory minimum sentences for child pornography- related offences. Prior to November 1, 2005, there was no minimum sentence for the offence of possessing child pornography. From November 1, 2005 to August 9, 2012, the minimum sentence for that offence, when prosecuted by indictment, was 45 days imprisonment. On August 9, 2012, the mandatory minimum sentence, when prosecuted by indictment increased to 6 months. These are clear signals to the courts that increased penalties are called for in relation to offences of this sort.

Second, as technology has advanced, so has the proliferation of child pornography. It has become much easier for offenders to access such material, which has exacerbated the abuse suffered by victims. Courts have become more aware of the scale of the problem, and this in turn has led to increased sentences. [ 98 ] As such, I am of the view that older sentencing precedents are of considerably less value than more recent ones. [ 99 ] I also note that finding reported decisions relevant to the parity analysis is a difficult task in the circumstances of this case.

Unfortunately, it is all too easy to find similar offences committed in relatively similar circumstances; child pornography offences are rampant. However, it is not as easy to find cases involving offenders who are similar to Mr. Hudec. Third and fourth-time offenders are scarce, at least in the reported jurisprudence. I do not consider cases involving first-time offenders to be relevant in the parity equation, even though many of the reported cases involving first-time offenders deal with extremely large collections, or other aggravating circumstances. In my view, the repeated nature of Mr.

Hudec’s offending, especially when viewed in light of his history of arrests, convictions, treatment and supervision, places him in a virtually unprecedented category of offender. [ 100 ] Having said all of that, I consider the following cases to be instructive in the parity analysis: R v Hyde , 2013 ABPC 206 : Mr. Hyde pled guilty to two counts of possessing child pornography. He took his computer to a store, to have the service department assist with a technical problem. An employee of the store opened up the computer, and found child pornography on it.

This led to an investigation by police, which discovered more than 800 images and 88 videos of child pornography, in the allocated and unallocated space. Mr. Hyde also had 48 CDs of child pornography in his residence, and more than 2600 images and 330 additional videos on a cell phone and thumb drive. His collection had been amassed over a four year period, during some of which time he was on probation.

He was 66 years old at the time of sentencing, had a lengthy history of substance abuse, had himself been sexually abused as a child, and had a lengthy criminal record, which included a number of convictions for indecent exposure. The Court found Mr. Hyde to be a long-term offender, and determined that a fit sentence of imprisonment was 30 months, less 18 months and 5 days credit for pre-sentence custody. The Court also imposed a 10 year long-term supervision order.

R v Nadeau , 2015 QCCQ 5719 : In this case, the offender pled guilty to possessing and accessing child pornography. The police found a USB key in the offender`s possession, which contained 35 files depicting the sexual abuse of three 12 year old girls. The offender had a criminal record, which included a conviction for possessing child pornography in 2007, and one for sexual assault in 2005. The Court found the offender to be a long-term offender, and imposed a 4 year sentence of imprisonment, less credit for pre-sentence custody, with a 10 year long-term supervision order to follow.

R v Snow , 2014 BCPC 27 : In this case, the offender pled guilty to one count of possessing child pornography. He was found in possession of “dozens” of DVDs containing child pornography. He was diagnosed as a pedophile, and had a record, which included previous convictions for child pornography-related offences and breach of probation. The Court imposed a 4 year sentence, reduced by 5 months to account for pre- sentence custody.

R v Rotman , 2015 ONCA 663 : In this case, the offender was convicted of one count of possession of child pornography, one count of breaching a prohibition order, and two counts of breach of probation. It was his second conviction for child pornography-related offences, but he had other sexual offences on his record, and had been convicted several times of breaching probation conditions similar to the ones breached by Mr. Hudec. The trial judge sentenced Mr. Rotman to three years imprisonment on the possession of child pornography charge, in addition to two years and 13 days spent in pre-sentence custody. Mr.

Rotman was also found to be a long-term offender, and made subject to a long-term supervision order for 10 years. A consecutive sentence of six months was imposed for the charge of breaching a prohibition order. Mr. Rotman appealed the sentence on the charge of possession of child pornography, and the length of the long-term supervision order. The Ontario Court of Appeal altered only the sentence relating to the charge of possession of child pornography, finding that when remand time was factored in, the sentence imposed by the trial judge for that offence exceeded the maximum permitted by the Criminal Code .

The Court of Appeal substituted a sentence of 4½ years on the charge of possession of child pornography less appropriate credit for pre- sentence custody, but did not alter the remainder of the sentence.

The Court also noted, at paragraph 10, that “[d]enunciation and general deterrence are the primary applicable sentencing principles when sentencing for child pornography offences.” [ 101 ] I also consider the unreported decisions in R v Collins ( January 9, 2013, Sask Prov Ct, Regina, Tomkins J.) [ Collins ] and R v Dienaar, (July 8, 2015 Ont CJ, Toronto, Oleskiw J.) [ Dienaar ] to be useful, although I recognize their limited precedential value, given that they were both the product of joint submissions. [ 102 ] In Collins , the offender pled guilty to possession of child pornography.

He had two previous convictions for similar offences, in 2008 and 2010. For the 2010 offence, he received a sentence of two years imprisonment, followed by 3 years probation (which was also the product of a joint submission). The 2013 offences were committed while the offender was on probation from the previous conviction, and residing at a community correctional centre. He downloaded child pornography on a cell phone he had borrowed from another person. There were more than 1300 images, and two videos. He was cooperative when arrested.

The Court accepted counsel’s joint submission for a 4½ year sentence. [ 103 ] In Dienaar , the offender pled guilty to possession of, and making available child pornography. His computer contained more than 8000 images and 471 videos of child pornography, including videos made by surreptitiously recording his step-daughter. The offender also had a thumb drive containing 795 images and 42 videos of child pornography. This was his second conviction for a child pornography-related offence. His first was in 2007, for which he received a 9 month conditional sentence and 1 year probation.

The offender had been diagnosed with multiple paraphilias, including pedophilia and voyeurism. The Court imposed the 3½ year sentence, followed by an 8 year long-term supervision order, that was jointly recommended by the Crown and defence.

e) Restraint & Totality [ 104 ] Subsections (c), (

d) and (

e) of s. 718.2 embody the principle of restraint. [ 105 ] While s. 718.3(4)(c)(ii) of the Criminal Code gives the Court discretion, where imposing a sentence of imprisonment for more

than one offence, to order that the sentences be served consecutively, s. 718.2(

c) says that where consecutive sentences are imposed, thecombined sentences should not be unduly long or harsh. [106]

Section 718.2(

d) states that offenders should not be deprived of liberty if less restrictive sanctions are appropriate, while s.718.2(

e) requires sentencing judges to consider all available sanctions other than imprisonment that are reasonable in the circumstances,with particular attention to the circumstances of aboriginal offenders. Mr. Hudec is not a person of aboriginal ancestry, but the rest of s.718.2(

e) still applies. Consideration of whether less restrictive sanctions, or sanctions other than imprisonment, are appropriate andreasonable in the circumstances requires attention to not only the needs of the offender, but to all of the principles and purposes ofsentencing. In Mr. Hudec’s case, given the circumstances of the offences, the nature of his past record, and the nature of the identifiedrisk he poses to re-offend, I am satisfied that any sentence short of a significant term of imprisonment would be inappropriate andunreasonable.

Anything short of lengthy imprisonment would ignore the pressing need for deterrence and denunciation. It would notprotect the public, and it would violate the requirement for parity. [107] In this case, I am of the view that a consecutive sentence is appropriate for the breach of probation offences, because those areseparate and distinct offences. In particular, the offence of having contact with children was committed in a different fashion than theoffences of possessing and accessing child pornography. The breaches are especially troubling, because Mr.

Hudec has breached themost significant conditions of his probation order; ones which were aimed directly at addressing his risk to re-offend. [108] When imposing consecutive sentences, I must determine the appropriate sentence for each offence that Mr. Hudec hascommitted, but I must also look at the total sentence, to ensure that it does not exceed what is appropriate, given Mr. Hudec’s overalllevel of culpability: R v M.(C.A.), (SCC), [1996] 1 SCR 500; R v Taylor, 2010 MBCA 103, 262 Man R (2d) 43. [109] Taking all of the relevant factors into account, along with my earlier conclusion that Mr.

Hudec should receive a sentence at thetop end of any applicable range, I am of the view that an appropriate sentence of imprisonment for the charges of possessing andaccessing child pornography is one of four years and six months. I am also of the view that a consecutive term of imprisonment of oneyear is appropriate for the charges of breach of probation. In my view, a total sentence of five years and six months’ imprisonment isproportionate to the gravity of the offences, and the degree of Mr. Hudec’s responsibility. It meets the need for deterrence anddenunciation. It does not offend the principle of parity.

The total sentence does not exceed what is appropriate, given Mr. Hudec’soverall level of culpability. CONSIDERATION FOR PRE-SENTENCE CUSTODY [110] Mr. Hudec has been in custody since his arrest on these matters, a period of 992 days as of today.

Section 719 of the CriminalCode permits me to give Mr. Hudec credit for the time he has spent in custody prior to being sentenced.

It reads, in part, as follows: 719(3) Determination of sentence In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custodyby the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent incustody. 719(3.1) Exception Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless thereason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custodyunder subsection 524(4) or (8). [111] In this case, Mr.

Hudec was not detained in custody under ss. 524(4) or (8). He was detained in custody on the breach ofprobation charges, following a bail hearing, but the Court record contains nothing in writing specifying that bail was denied primarilybecause of a previous conviction or convictions. Accordingly, I am not precluded from considering enhanced remand credit under s.719(3.1) for Mr. Hudec: R v Sawchuk, 2014 SKCA 88, 442 Sask R 164.

[ 112 ] In R v Summers , 2014 SCC 26 , [2014] 1 SCR 575 [ Summers ], the Supreme Court of Canada noted that, while giving credit for pre-sentence custody is not mandatory under s. 719(3), doing so reflects a principled and long-standing practice in sentencing. While s. 719(3.1) is structured so that credit given for pre-sentence custody at a rate greater than 1:1 is the exception, rather than the rule, the Court in Summers noted that there is no reason why such an exception should require exceptional circumstances, or even apply less frequently than the rule.

Enhanced credit can be awarded as long as the circumstances justify it, and the loss of eligibility for early remission or parole that prisoners experience while on remand is a circumstance capable of justifying enhanced credit under s. 719(3.1). In fact, it alone will usually be enough to justify credit of 1.5:1. [ 113 ] However, the Court in Summers did not say that enhanced credit for pre-sentence custody is automatic, or that it must be imposed whenever the offender, through pre-sentence custody, loses eligibility for early remission or parole.

Nor did the Court say that sentencing judges are left with a binary decision between credit at 1:1 or credit at 1.5:1. Granting of remand credit above the statutory minimum is a discretionary decision, and enhanced credit may clearly be denied where there is a principled reason for doing so, such as a need for the sentence going forward to be long enough to ensure that the offender will receive adequate programming before release. This is especially so in applications under

Part XXIV of the Criminal Code , where protection of the public is at the forefront: Knife; R v E.E.D. , 2007 SKCA 99 , 304 Sask R 192 [ E.E.D. ]; R v Cote , 2015 SKCA 52 [ Cote ]. [ 114 ] In R v Hopley , 2015 BCCA 499 , the Court adopted the reasoning in E.E.D. and Cote , and said this with respect to credit for pre- sentence custody in

Part XXIV applications: [59] Sentences under

Part XXIV of the Code are structurally different and have a different focus than those under

Part XXIII of the Code . Sentences under

Part XXIII draw upon the principles and purposes of sentencing in ss. 718 , 718.1 and 718.2 to determine the scope of the “circumstances” in s. 719(3.1) that would justify enhanced credit. The principles and objectives of sentencing set out in ss, 718, 718.1 and 718.2 must also be considered in determining if a long-term offender order should be imposed (see R v Johnson , 2003 SCC 46 at para. 28 for a discussion in the dangerous offender context), however the principal focus of sentences under

Part XXIV is on the protection of the public. With respect to a long-term offender order, the protection of the public is sought to be achieved by reducing the offender’s risk through programming and treatment while serving the determinate sentence in order to facilitate the offender’s supervised reintegration into the community. [ 115 ] In my view, it is necessary that Mr. Hudec receive a significant period of imprisonment going forward, of at least two years. I will explain why that is so. [ 116 ] Although Dr.

Lohrasbe expresses the opinion that there would be little to be gained, from the standpoint of rehabilitation, by sentencing Mr. Hudec to a lengthy term of imprisonment, because he has already taken the High Intensity Sex Offender Program, and appears to have a full understanding of the material, rehabilitation is not the only factor that I must consider in addressing the need to protect the public. [ 117 ] Mr. Hudec completed the High Intensity Sex Offender Program as part of his last sentence, and had a detailed relapse prevention plan in place. But that did not prevent him from re-offending.

To me, this demonstrates that even though Mr. Hudec may have understood all the concepts learned in programming, he was unable to successfully apply them when push came to shove. It is clear to me that he has not internalized all the concepts, even though he can verbalize them. In addition to that, the circumstances of his new offences, including the attempted contact with other children, introduce new factors which suggest that there may be other avenues of programming that need to be explored. The evidence before me makes it clear that, before Mr.

Hudec can be released, there needs to be a new and detailed plan in place for his residence, for supervision, and for ongoing maintenance treatment in the community. All of that, in my view, must begin in a custodial setting in order to adequately protect the public. [ 118 ] The evidence demonstrates that the best, and most thorough programming alternatives are available within the federal penitentiary system. For someone with Mr. Hudec’s offending history, and the type of risk he poses going forward, public protection demands such a sentence. [ 119 ] In my view, it would be appropriate to give Mr.

Hudec three years and six months credit for the 992 days he has spent in custody. That works out to a rate of just short of 1.3 days for every day he has spent in custody. On all the evidence before me, it is necessary and appropriate to grant credit at that rate to impose a sentence that will adequately protect the public.

CONCLUSION [ 120 ] I find Mr. Hudec to be a long-term offender, within the meaning of

section 753.1 of the Criminal Code . [ 121 ] For the offence of accessing child pornography, contrary to

section 163.1(4.1) of the Criminal Code , I sentence Mr. Hudec to a term of imprisonment of four (4) years and six (6) months in a penitentiary. [ 122 ] For the offence of possessing child pornography, contrary to

section 163.1(4) of the Criminal Code , I sentence Mr. Hudec to a term of imprisonment of four (4) years and six (6) months in a penitentiary, concurrent. [ 123 ] For the offence of breach of probation, by having contact with children under 16 years of age, contrary to

section 733.1 of the Criminal Code , I sentence Mr. Hudec to a term of imprisonment of one (1) year, consecutive. [ 124 ] For the offence of breach of probation by possessing computer equipment capable of accessing the internet, contrary to

section 733.1 of the Criminal Code , I sentence Mr. Hudec to a term of imprisonment of one (1) year, concurrent. [ 125 ] Therefore, the total sentence of imprisonment that I would have imposed, before giving credit f

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