R. v. St. Amand, 2016 ONCJ 888

ONTARIO COURT OF JUSTICE CITATION: R. v. St. Amand , 2016 ONCJ 888 DATE: May 17, 2016 Sault Ste. Marie Court Information No. 907 BETWEEN: HER MAJESTY THE QUEEN — AND — SAMUEL ST. AMAND Before Justice John Kukurin Heard on March 31, 2014, November 12, 2014, April 23, 2015, May 26, 2015, September 4, 2015, November 2, 2015 Reasons May 17, 2016 D. Kirk .................................................................................................... counsel for the Crown M. Bennett ................................................................. counsel for the defendant S.St. Amand KUKURIN J. [ 1 ] These are Reasons with respect to sentence on a guilty plea to a charge under

section 163.1(3) of the Criminal Code , of making available child pornography. However these Reasons are even more addressed to several applications made during the sentencing process. [ 2 ] Although the accused entered a pea of ‘guilty’, there was no joint crown and defence position on sentence. On the contrary, what the court should decide has been, and continued to be, strongly contested throughout.

THE OFFENCE [ 3 ] The main charge in this sentencing is “making available” child pornography, an offence under s.163.1(3) Criminal Code . [1] [ 4 ] There is a second charge of “possession” of child pornography under s. 163.1(4) Criminal Code [2] on which no plea has ever been taken; indeed, on which the accused has not yet been arraigned.

This second charge has tagged along with the first charge on the implicit agreement of crown, defence and the court, with the expectation that it will likely, but not necessarily, be withdrawn at the end of the day once the final decision on the first charge has been rendered. [ 5 ] The accused was charged in April 2013, just over three years ago. At that time, the offence of making available child pornography was a hybrid offence. If proceeded with by indictment, there was a statutorily mandated minimum sentence of imprisonment of twelve months. If the charge proceeded on

summary conviction procedure, a statutory minimum still applied, but it was for six months of imprisonment. [ 6 ] The crown, which has an election on this hybrid offence, elected to proceed by indictment. Moreover, the crown’s position

on sentence at the early stages of this case, sought more than the minimum of twelve months; it was seeking eighteen months of imprisonment. In addition to this, it wanted as probation order to follow, an order under section 161(1). [3] It also sought certain ancillary orders, some of which are mandatory.

These included an order of forfeiture of the accused’s computer, a DNA order and a SOIRA (sexual offender registration) order for ten years. [ 7 ] It was the decisions of the crown to proceed by indictment, and to seek a sentence of imprisonment in excess of the mandatory minimum, and (according to the accused), the crown’s failure and/or refusal to moderate these decisions as more information became available, that form the basis for the main contest in this sentencing case. THE PRE-PLEA NEGOTIATIONS [ 8 ] The accused pleaded guilty to the offence of making available child pornography.

Typically, on a plea of guilt, factual details surrounding the commission of the offence are read into the court record by the crown, and are acknowledged by the accused to be substantially correct, at least enough to warrant a finding of guilt. This informal ‘statement of agreed facts’ was not proffered to the court in this case. [ 9 ] There was considerable discussion and negotiation between counsel prior to plea. In fact, it was almost a year from the time the accused was charged before a plea was taken.

During this time, a crown proposal was floated for a joint submission involving a fifteen month sentence of imprisonment. This was not acceptable to the defence which counter proposed a crown re-election to proceed summarily, and a joint submission for a six month sentence of imprisonment. This counter proposal was not acceptable to the crown. The crown’s position remained eighteen months. [ 10 ] Although a non judicial pretrial (in some jurisdictions referred to as a ‘counsel’ pretrial) was held in mid-October 2013, it does not appear that a judicial pretrial was ever held, or even contemplated by either side.

When it became evident that the parties could not bridge the gap between their respective positions on sentence, they both agreed to embark on a sentencing hearing [4] , presumably to provide to the court the factual circumstances that the court would need to justify the (custodial) positions being advocated by each of them. THE SENTENCING (GARDINER) HEARING [ 11 ] The court is required to conduct proceedings as soon as practicable after an offender has been found guilty, to determine the appropriate sentence to be imposed. [5] This mandate is the essence of this case.

A finding of guilt was made, not on a statement of agreed facts, but rather on the evidence heard from witnesses for the crown at a sentencing hearing. [6] [ 12 ] The sentencing hearing, often referred to as a Gardiner hearing [7] , is intended to assist the court in determining the appropriate sentence to be imposed on a guilty plea where there is some disagreement or some disparity as to the circumstances of the offence being relied upon by the crown and the defence. The circumstances of the offence are an integral consideration in the sentencing process.

The circumstances of the offence in each case tie into critical areas such as the gravity of the offence, the degree of responsibility of the offender, as well as mitigating and aggravating factors. [ 13 ] In the present case, one of the primary differences between crown and defence with respect to circumstances surrounding the offence was the basis on which the guilty plea was being made. The accused tendered his guilty plea on the basis of his ‘wilful blindness’ as to making available child pornography.

One of his arguments on sentence was that his wilful blindness in committing the offence was less morally blameworthy than if he had committed it knowingly. That ‘wilful blindness’ is a sufficient substitute for actual knowledge, where actual knowledge is a component of the mens rea of an offence, is the premise on which the accused maintained that his guilty plea was properly made. [8] [ 14 ] The crown took exception to this rationalization.

In fact, although no formal application was brought, crown counsel questioned the propriety of accepting a guilty plea in light of the accused’s testimony in chief at the sentencing hearing. [9] After a lengthy exchange between counsel and the court, I indicated that the plea was an appropriate plea to have been taken by the court. [10] [ 15 ] The “Gardiner” hearing commenced on March 31, 2014. It did not conclude on that date, and for several reasons: (

a) The defence requested the preparation of a pre-sentence report (PSR) once the court had made its finding of guilt (on the evidence of the crown). A PSR typically takes a minimum of six weeks to prepare. (

b) The hearing didn’t resume until November 12, 2014. The defence wished to introduce evidence on the sentencing hearing which it did through three witnesses: the accused, the accused’s former girlfriend, and a psychologist who had done a psychological assessment (and report) of the accused at the request of the defence. [11] The defence witnesses could not be accommodated on March 31, 2014 as only that one day had been scheduled and it was consumed by the testimony of the crown witnesses. (

c) Nor did the sentencing hearing conclude on Nov 12, 2014. The accused testified in chief. At that point, the defence indicated that the accused might, or might not, bring a Charter challenge on the constitutionality of the mandatory minimum punishment provision for a s.161.1(3) offence as it applied to the accused in this case. The crown thereupon refused to cross examine the accused until the defence indicated a commitment, one way or the other, on whether a Charter application was forthcoming.

The defence declined to make such a commitment until the crown had completed its cross examination of the accused (and, in fact, after testimony from all defence witnesses was completed). This classic ‘Catch 22’ ended with my ruling that day which regrettably entailed a further adjournment, mainly to permit the accused time to properly mount a Charter application. [12] (

d) The defence psychologist added to the length of the sentencing hearing as well, and in two ways. Firstly, he was being called as an expert witness to provide expert opinion evidence. This status was challenged by the crown, and a voir dire ensued on this issue. This effectively consumed the balance of the court time on November 12, 2014. [13] The second way in which the psychologist lengthened the sentencing hearing had a much greater impact. During the voir dire , he confirmed that he would refuse to provide the raw data (mainly the psychometric test scores) on which much of his assessment of the accused was based. The crown insisted on production of

this data prior to its cross examination of him. This impasse led to a formal application by the crown for an order for production. Preparation of this application, service, setting a date and hearing argument (on December 19, 2014) ate up another day and extended the sentencing hearing yet again. The Ruling on this application was not released until April 2015. [14] (

e) The sentencing hearing resumed April 25, 2015. The accused was cross examined. The accused’s ex-girlfriend testified. The raw data materials had been produced by this point in time. The psychologist was examined in chief but time ran out before he could be cross examined. This necessitated the setting of yet another date through the trial co-ordinator. On that date, namely May 20, 2015, the crown cross examined the psychologist thereby completing the evidence of the defence on the sentencing hearing. (

f) The completion of evidence did not conclude the sentencing hearing. No submissions of counsel had yet been made on what should be the appropriate sentence. This was not due simply to lack of adequate court time. What had transpired in the later stages of the hearing was the filing of applications by the accused (described in more detail below), the nature of which derailed “sentencing” and raised issues, the decisions on which could make the determination of sentence superfluous.

The defence applications, brought near the end of the hearing of evidence, required some time for crown response, and additional judicial time to hear arguments on these applications and to render decisions thereon. An additional date was set through the trial co-ordinator of September 4, 2015. This proved to be insufficient and a further date of November 2, 2015 was assigned. (

g) Submissions of counsel on the applications were concluded with decisions reserved. With further court dates unavailable, and very little having been argued on what sentence should be imposed (if any at all), I directed submissions on sentence in writing, the last of which were received in early February 2016. [ 16 ] The decisions on the defence applications and on sentence to be imposed were put over to May 2, 2016. These Reasons relate to my decisions on these matters. THE DEFENCE APPLICATIONS [ 17 ] The accused has filed a succession of applications, some amending earlier ones.

The main relief claimed in each of them is the same, namely, a judicial stay of the proceeding against the accused. [15] However, the basis for a stay is manifold so it is necessary to address each of the grounds relied upon by the accused for a stay. [ 18 ] The several grounds relied upon by the accused are: (

a) A breach of

section 11(

b) of the Charter, namely, for unreasonable delay; [16] (

b) A breach of

section 7 of the Charter [17] , namely, the right to life, liberty and security of the person, arising from abuse of process on the part of the crown, and relating to crown election to proceed by indictment combined with a crown decision to seek a custodial sentence in excess of the mandatory minimum; (

c) A breach of

section 7 of the Charter arising from a fresh abuse of process on the part of the crown relating to its failure to give timely notice that “ its cross examination of witnesses would be “akin to a Gardiner hearing” for a purpose inconsistent with its position on sentence not disclosed to the court until 2 November 2015 ”, thereby resulting in prejudice to the accused. [ 19 ] The crown has responded to each of these applications and opposes the relief claimed in each of them. STAY FOR DELAY –

SECTION 11(

b) CHARTER [ 20 ] The delay application was filed April 10, 2015. It was followed almost immediately by an amended application (that added a s.7 Charter infringement ground). The delay application of the accused and the response thereto by the crown each contained a table setting out the intervals between successive court appearances. Counsel characterized whether each interval was attributable to the crown, or the defence, or was inherent (neutral), based on why the case was being adjourned. Each party disagreed with some of the allocations made by the other.

It is noteworthy that the delay application came in April 2015, some two years after the charge was first laid. It is now May 2016. My analysis of the ‘delay’ argument deals only superficially with the period following the bringing of this application (ie April 2015 to May 2016) as this period was in the future when it was brought. Argument on the delay application was heard on September 4, 2015 after all of the evidence in the sentencing hearing had been completed. [ 21 ]

Section 11 of the Charter grants to each person charged with an offence the right “to be tried within a reasonable time”. Some delay is inevitable. The question is when does such delay become unreasonable. Appellate jurisprudence sets out the following as factors to be considered in the analysis: • Length of the delay • Waiver of time periods • Reasons for the delay • Prejudice to the accused [ 22 ] The 1992 Morin [18] decision of the Supreme Court of Canada remains a leading appellate pronouncement on stay of proceedings applications based on violation of

section 11(

b) Charter right to trial within a reasonable time. Several important principles can be distilled from this decision. (

a) the onus is on the applicant seeking the stay (

b) the standard of proof is the balance of probabilities

(

c) there is no strictly mathematical formula that applies (

d) the court must balance the protection of the rights of the accused to the security of the person, liberty and a fair trial against society’s interests in ensuring that those that transgress the law, are dealt with fairly and in accordance with the law (

e) the time subject to a s.11(

b) analysis is from the date of the charge to the end of the trial. [ 23 ] In Allen [19] , the Ontario Court of Appeal applied the principles in Morin and clarified that unreasonableness of delay is to be decided based on the total period of time that has to be assessed, in light of the reasons that explain its constituent parts. A waiver of any interval within that total span of time excludes that interval in the overall consideration.

Ultimately, the issue reduces down to whether the accused was denied a trial within a reasonable time, reckoned on the balancing of individual and societal interests. [ 24 ] It is almost inevitable that evidence in stay applications based on delay will consist of transcripts of court appearances. The conventional approach is to lay the responsibility for any time interval between court dates at the feet of the crown, or those of the accused, or to adjudge a period to be neutral.

The end result is a cumulation of time for which the crown bears responsibility, and a decision as to whether this exceeds what is reasonable in the circumstances, always bearing in mind the balancing of individual and societal interests. It is the allocation of responsibility that is usually contentious in this approach. [ 25 ] It is universally recognized that certain periods of any criminal proceeding are inherently neutral. Intake periods which typically involve retaining counsel, bail matters, obtaining and reviewing disclosure, preparation for trial (or hearing), and the hearing itself are unavoidable.

These are considered neutral in almost all cases and count neither for nor against either party. [ 26 ] In the present case, the total time interval when the delay application was brought was two years, from date of charge (April 17, 2013) to date of delay application (April 10, 2015). This roughly 24 months is the period of time during which the application claimed that the accused was subjected to unreasonable delay in his right to trial. However, the delay application was not heard in April 2015; it was not heard until September 14, 2015, some 5 months later.

This was not because the court could not provide earlier dates. Nor was it because counsel did not have earlier dates available. This 5 month delay arose because of a judicial ruling that evidence on the sentencing hearing be concluded before argument on any of the defence applications take place. The reason for this ruling was because the testimony of the remaining witnesses was indicated by counsel to be potentially relevant to the delay argument. [20] [ 27 ] April 2015 to September 2015 (5 months) – A review of the court record shows that hearing of evidence was concluded close to the end of May 2015.

Crown counsel was not available in June 2015 due to prior court commitments. Defence counsel was not available for the entire month of August. Neither could find a mutually convenient day in July. The record indicates that the court had many days available in June, July and August 2015. [21] Accordingly, I consider the interval April 2015 to Sept 2015 to be neutral insofar as this period of delay is concerned. [ 28 ] This leaves the 24 month period April 2013 to April 2015.

What happened in this two year interval can be gleaned form a review of the transcripts of the court attendances, complemented by a chronological review of correspondence back and forth between counsel for the crown and counsel for the accused. [22] [ 29 ] April 2013 to October 2013 (6 months) – The first six months of this two year period were consumed with ‘intake’ matters and were inherently neutral. These matters included retaining counsel, bail appearance and release on bail, bail variation application, request for, receipt and review of crown disclosure, arrangements between counsel to

schedule and participate in a counsel (non judicial) pre-trial. [ 30 ] October 2013 to December 2013 (2 months) – Following this counsel pre-trial (on October 17, 2013), the defence scheduled a date for plea and disposition for December 16, 2015. I would consider this two month period to also be neutral, as part of the intake phase of the case. If not neutral, I would not attribute these two months to the crown, nor to lack of institutional (judicial) resources. The evidence was equivocal as to why any earlier date was not selected.

There was no evidence in the transcripts that the court or the crown could not proceed any earlier than the date set. It was the accused who asked for the date of December 16, 2015. [23] [ 31 ] As the December 16 th plea date approached, there was a flurry of correspondence between counsel exchanging their positions (or more correctly, their offers) on sentence. There was no resolution, but what developed from their exchanges was a crown decision to call viva voce evidence at a sentencing hearing. This was a decision with which the defence concurred.

The time available on the December 16 th plea date could not accommodate a sentencing hearing. The defence was seeking an adjournment of the plea date anyway. The end result was that no plea was taken and a new date for a one day sentencing hearing was re-scheduled for March 31, 2014. [ 32 ] December 2013 to March 2014 (3.5 months) – This next interval is also neutral. It arises both from the actions of the crown as well as from actions of the defence. The accused had requested a cancellation of the December plea date and wanted an adjournment to a date “early in the new year” (ie 2014).

The crown was now wanting a sentencing hearing, estimated duration of one full day. The defence could not say whether a full day was necessary but agreed that a sentencing hearing was needed. The court offered March 13, 2014. The crown was not available. The next day offered was March 31, 2014, which was agreeable to both counsel. It is difficult to attribute the delay in this interval to either party when both agreed to cancellation of an already assigned plea date, both agreed that the next step was for a sentencing hearing, not simply a plea and submissions, and Christmas fell within the interval.

I adjudge this 3 ½ months to be neutral. [ 33 ] March 31, 2014 (one day) – This is clearly neutral from a delay standpoint as the entire day consisted of hearing of evidence and a finding of guilt on the evidence presented by the crown and the plea proffered by the accused. Both parties had their day in court. Unfortunately, not enough to complete the full hearing. [ 34 ] March 2014 to November 2014 (7.5 months) – An interval of 7.5 months elapsed before the next date of November 12, 2014. This rather long period of time is attributed to the defence. The crown evidence was completed.

It was the defence that wanted the

sentencing hearing to continue. However, the defence was not ready on March 31, 2015 to set a new date for continuation. The accused wanted a pre-sentence report ordered by the court. This would delay matters by at least 1 ½ months in itself. More importantly, the defence was unsure at this point if it would call evidence, and if so, through what witnesses. When the decision was eventually made, it was the defence psychologist witness who was unavailable because of his commitments until mid November.

So far as can be determined, it was the defence that estimated a duration of one day for its case to be presented in the hearing. [ 35 ] November 2014 to December 2014 (1 month) – The hearing was continued on November 12, 2014 but again not concluded. The next hearing date was set for December 19, 2014. This one month delay was to give the defence some time to decide on whether it would launch a Charter application, and if so, to prepare the appropriate supporting documentation and to effect service pursuant to the Criminal Rules.

It was also to give the crown sufficient time for it to bring an application for production of “raw data” material from the defence psychologist before he was to be cross examined. It was also to allow the court some time to provide a ruling on the voir dire held in relation to qualifying the psychologist as an expert. I do not attribute the one month delay in this interval to the crown. The crown was essentially successful in its application.

The hearing could not proceed until the production of the raw data issue was resolved. [ 36 ] December 2014 to April 2015 (4 months) – A continuation date was set for April 23, 2015.

This delay of roughly four months is institutional due to the unavailability of the judge assigned to the hearing. [24] This is a delay that is allocated to the crown. [ 37 ] I recapitulate my view of the elapse of time from date of charge and the allocation of responsibility for the constituent time intervals as follows: Interval Neutral Systemic Crown Defence Total April 17/13 to Oct 17/13 6.0 mo 6.0 mo Oct 17/13 to Dec 19/13 2.0 mo 8.0 mo Dec 19/13 to March 31/14 3.5 mo 11.5 mo March 31/14 to Nov 12/14 7.5 mo 19.0 mo Nov 12/14 to Dec 19/14 1.0 mo 20.0 mo Dec 19/14 to Apr 23/ 15 4.0 mo 24.0 mo Apr 23/15 to Sept 14/15 5.0 mo 29.0 mo [ 38 ] Although the overall length of this case, especially considering it is essentially a sentencing on a guilty plea, is considerable, the reasons underlying the delay in reaching a finality provide an explanation of why this case is taking such a long time to complete.

That the initial intake period was longer than might have been expected is explained, in part, by the nature of the charge and the fact that police analysis of the computer files in the accused’s hard drive is a tedious, time consuming process, and it takes place, for the most part, after the charge is laid. As a result, crown disclosure is delayed, as are crown-defence discussions and negotiations.

There is some appellate recognition of the lengthier post-charge investigation process in child pornography cases. [25] [ 39 ] There was no waiver of time periods involved that have not been taken into account by the aforementioned allocations. In terms of prejudice to the accused by the ‘delay’, there is no question that the accused was subject to fairly strict terms of bail release conditions and for quite a long time. However, these conditions were loosened somewhat early on in the case on consent of the crown, so that the accused could engage in his forest fire control employment in the summer months.

The evidence of the accused recounted only two areas where bail conditions resulted in difficulties of any significance for him: (

a) He had to have an adult person present when he was in contact with his teenage sister; and (

b) He had to pass up advancement to a higher work classification, and he might thereby lose the opportunity to advance entirely. Otherwise, the accused did not appear to have any appreciable difficulties complying with his bail conditions. He was rarely checked by the police in his community. He still maintained his circle of friends, and co-workers when employed. He did not miss his computer even claiming not to want one ever again. [ 40 ] It is not prejudice to the accused caused by the bail conditions but rather prejudice resulting from the delay in the case that is relevant to the issue of whether a stay should be ordered. The Charter right under

section 11(

b) relates to trial within a reasonable time. There is, in my view, a qualitative difference between a criminal case that proceeds on a not guilty plea and one that proceeds on a plea of guilt to the offence charged. In the latter, the accused no longer has the presumption of innocence. The disposition (sentencing) portion of a criminal case is unquestionably a part of the “trial”. However, the finding of guilt does subtly affect the assessment of prejudice to the accused in the interval between such finding and the imposition of sentence.

In the present case, the imposition of sentence could have taken place when the finding of guilt was made on March 31, 2014. It was primarily the decisions and the steps taken by the accused from then onwards that has precluded a finalization of the “trial”. The accused has been having his “trial” all along, albeit in a piecemeal fashion. [ 41 ] I do not consider the overall prejudice to the accused, considered together with the other factors identified in Morin, to have been so great as to justify a stay of proceedings.

That he has suffered some prejudice is unquestionable but it does not outweigh the societal interest in having the sentence proceed to its normal conclusion (one that may include the ordering of a stay). The charge involved is not a simple assault or a minor mischief or a shoplifting. Child pornography offences are serious offences and taken seriously by Parliament and by the community. Where mandatory minimum sentences are prescribed, a logical inference is that the

offence is one for which there is commensurately high societal interest in having the offence dealt with by the criminal justice system. [ 42 ] Accordingly, the claim for a stay of proceedings in the (amended) application of the accused based on

section 11(

b) of the Charter is dismissed. STAY FOR ABUSE OF PROCESS –

SECTION 7 CHARTER [ 43 ] The amended application of the accused asks for a stay of proceedings for an alternative reason, namely: “… for abuse of process under paragraph 7 of the Charter ” [ 44 ] The grounds for this claim are set out more fully in the amended application: “…The Crown has exercised its discretion in a manner that results in a grossly disproportionate sentence of the Applicant” [ 45 ]

Section 7 of the Charter creates, or perhaps more correctly, affirms certain individual rights and freedoms.

S.7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [ 46 ] A stay of proceedings based on breach of a Charter right is a remedy for which an individual may apply to a court S.24 Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied, may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [ 47 ] The onus of showing an infringement of a Charter right lies with the person alleging it.

The standard of proof is the balance of probabilities. [ 48 ] A stay of proceedings is not an automatic consequence of a Charter breach. It is one remedy that may be appropriate and just in the circumstances but not the only remedy. [26] Moreover, the Charter does not obligate the court to grant a remedy even where it finds a violation of a Charter right. The granting of a remedy is discretionary.

The choice of what appropriate remedy is granted (if one is granted at all) is an exercise of judicial discretion. [ 49 ] The crown has a prosecutorial discretion which pervades its functions as a prosecuting arm of the state. It makes decisions to lay a charge, or to withdraw a charge that has been laid. It decides what evidence it will bring forward, or whether it will offer no evidence at all. It is not difficult to see that the exercise of discretion by the crown is a powerful tool in its arsenal. However, crown discretion is not without limits.

The justice system within which the crown makes its decisions has some inbuilt checks and balances, the most visible of which is judicial oversight. (

A) Amended Application dated April 22, 2015 [ 50 ] In his amended application (dated April 22, 2015) the accused’s main complaint with respect to the exercise of crown discretion is its decision to proceed with the charge against him by indictment rather than by

summary conviction procedure. This argument would normally go absolutely nowhere as prosecutors throughout this province make such decisions routinely on a daily basis. [ 51 ] Prosecutorial discretion in choosing between

summary conviction and indictment applies only to charges that are ‘dual procedure’ offences. They are “hybrid” and the crown has an election on how it proceeds. Many hybrid offences do not have a mandatory minimum penalty prescribed. However, some do. The offence of making available child pornography is one that does. It is, in part, the mandatory minimum provisions of this charge that elevates this case somewhat above the countless hybrid charges seen daily in our courts. [ 52 ] The consequences of a crown election on this charge by indictment exposes the accused to a sentence of imprisonment of not less than one year. Had the crown elected to proceed by

summary conviction, the accused’s minimum sentence of imprisonment would have been six months. The exposure to a longer minimum term of imprisonment has been legitimately prescribed by Parliament for some specified offences. The accused does not seem to take issue with the legality or the “constitutionality” of

section 161.1(3). In other word, he is not directly attacking the constitutional validity of this subsection (at least not in this application). [ 53 ] The accused’s attack on the prosecution’s exercise of its discretion does have a second prong. This is specific to this accused. It is that the circumstances of the accused and the nature of the offence are such that even one year of incarceration constitutes a sentence that is grossly disproportionate. How does this tie up to the exercise of prosecutorial discretion?

It does, according to the argument of the accused, because the crown should make its election (and the resulting exposure of the accused to a term of imprisonment) based on the offence and the offender, and on the current jurisprudence that applies to the particular circumstances of this case. [ 54 ] The accused argues that the crown has not done this. It made its election within five days of the laying of the charge(s).

It did not have enough information about the offender, nor did it have sufficient details of the offence (in particular the quantity and quality of the child pornography on the accused’s computer) to justify making the decision that it made to proceed by indictment.

[ 55 ] This is not the entirety of this part of the argument. It must be kept in mind that the case went through almost a full year of “intake” during which there was not only dialogue between counsel, but more importantly, a sharing of information. The crown made its disclosure which it received somewhat piecemeal from the forensic police officer tasked with the analysis of the contents of the accused’s computer. The accused shared with the crown his psychological assessment. His counsel provided to the crown some case law which he felt was relevant to what should be an appropriate range of sentence.

Also, at one point, a pre-sentence report was completed and shared with counsel. [ 56 ] The accused does not restrict his criticism of the crown’s decision to proceed by indictment to the time when it was made. [27] This criticism was ongoing and became harsher as the crown either failed or refused to take into account the additional information it received over time, and continued to stand (obstinately in the eyes of the accused) by its initial election decision. [ 57 ] Although not set out particularly well in the amended application, a significant part of the accused’s grievance was with respect to another exercise of prosecutorial discretion, namely, the decision of the crown to seek a sentence of imprisonment considerably in excess of the mandatory minimum prescribed for the offence.

The crown’s position of 18 months (15 months on a joint submission) was not part of the initial screening form. This position on sentence was not communicated until some six months later, in mid-October 2013, at or about the time that a counsel pre-trial was held. This position on the length of sentence was maintained by the crown, so far as can be determined from the evidence, for another 14 months, until December 2014. [ 58 ] As of approximately mid December 2014, the crown’s position on sentence changed.

It was seeking 12 months of imprisonment (the mandatory minimum) plus probation for three years and ancillary orders. This was offered as a time limited resolution proposal on a joint submission. Presumably, this would lapse if not accepted in time, and the prior crown position would be restored. In fact, the time for acceptance of this proposal was extended by the crown at the request of the accused. It was never accepted by the accused, and lapsed. [ 59 ] By mid-April 2015, the crown’s position underwent yet another change.

The crown confirmed to the accused’s counsel that it was seeking a 12 month sentence of imprisonment, followed by probation for 18 months, plus ancillary orders. This was not conveyed as an offer or proposal for resolution on a joint submission. It reflected what the crown would be asking by way of sentence regardless of the position of the accused. Of significance was what did not change, namely, the election to proceed by indictment.

This effectively foreclosed a sentence of imprisonment of less than one year. [28] [ 60 ] The totality of these crown decisions – the exercise of its prosecutorial discretion – amounts, argues the accused, in the unique circumstances of this case, to an abuse of process on the part of the crown. This, says the accused, has opened him up to greater penal consequences than are warranted in these circumstances. The court should intervene by staying the charges. [ 61 ] There must be some authority for the court to stay a proceeding for the reason that there has been an abuse of process.

This comes from s.24(1) of the Charter. However, the granting of a judicial remedy (such as a stay) is contingent on a judicial finding that there has been a denial or an infringement of a Charter right or freedom. In the application of the accused, he relies on the violation of his s.7 Charter right. He does not specify which in particular (life, liberty, security of the person). I infer from the nature of the accused’s argument that the specific Charter right infringed as a result of the abuse of process which he alleges on the part of the crown is his right to liberty.

After all, it is the length of a term of imprisonment which is at the hub of this contested sentencing. [29] [ 62 ] The issue, firstly, is whether there has been an abuse of process as a result of acts or omissions of the crown which have compromised the accused’s Charter right to liberty. The contingent issue, if the court finds that there has been such a Charter breach, is whether it should grant the remedy sought by the accused in this application – a stay of proceedings. [ 63 ] The jurisprudence with respect to abuse of process in the exercise of prosecutorial discretion is not overly extensive.

However, there is a body of case law from which can be gleaned not only several legal principles, but also some helpful guidance. One of the leading appellate decisions form the Supreme Court of Canada, R. v. Anderson , [30] was decided in 2014. This was an impaired driving case in which a mandatory minimum sentence came into play as a result of a decision by the crown to give notice to the accused of its intention to seek a greater punishment by reason of previous convictions. The accused, an aboriginal man, maintained that under

section 7 of the Charter, the crown was required to consider his aboriginal status in exercising its discretion whether or not to tender the notice and thereby trigger the mandatory minimum aspect of the prescribed sentence. The trial judge held that the crown was required to provide some justification for this exercise of its prosecutorial discretion. The Court of Appeal rejected the crown’s appeal and confirmed that, in tendering the notice of increased penalty without considering the accused’s aboriginal status, the crown made the proceeding fundamentally unfair, leading to a

section 7 Charter breach. The Supreme Court, however, decided otherwise. It affirmed that the crown’s decision to serve the notice, and to seek the mandatory minimum penalty, was a matter of prosecutorial discretion, and that the crown had no obligation to consider the accused’s aboriginal status in making such decision. [ 64 ] While the charge in the present case is different than in Anderson , and although the triggering of the mandatory minimum arises not from service of a notice of increased penalty but by a crown election to proceed by indictment, the Anderson decision provides some strong appellate guidance on the main issue in the

section 7 Charter argument raised by the accused in this application. [ 65 ] Prosecutorial discretion is an expansive term and applies to a wide range of prosecutorial decisions. It is entitled to considerable deference from the judiciary. It is not well suited to judicial review. However, it is not immune from all judicial oversight. It is clearly reviewable for abuse of process. [ 66 ] What is “abuse of process” in the context of prosecutorial discretion? Moldaver J. in Anderson provides a concise explanation: “ … the key point is this: abuse of process refers to crown conduct that is egregious and seriously compromises trial fairness and/or the integrity of the justice system.”

[ 67 ] The Ontario Court of Appeal in R. v. Delchev , [31] decided after Anderson , goes further in elaborating abuse of process in the context of actions and decisions of the crown. There is a threshold evidentiary burden that the accused must meet before the court will embark upon an inquiry into the reasons behind the exercise of prosecutorial discretion. A bare allegation by the accused of abuse of process will, on its own, be insufficient to meet this burden. However, the impugned act of prosecutorial discretion, may, of itself, be enough to cross this threshold.

Or the discretionary decision may be so rare and exceptional in nature that it demands an explanation. The accused will normally have met this threshold evidentiary burden if he or she adduces evidence of bad faith or improper motive in the exercise of prosecutorial discretion. [ 68 ] What this court must first decide is whether the accused has met his evidentiary burden in establishing that there has been an abuse of process in the crown’s election to proceed by indictment. [ 69 ] The accused has fallen short.

Nothing in the evidence in the sentencing hearing persuades me that, in exercising its discretion, the crown’s decision to proceed by indictment, both when it was first made, and for the duration it has continued in effect, qualifies as egregious conduct. The word ‘egregious’ carries a connotation of scandalous, shocking and outrageous. The crown’s continuing election comes nowhere close to this. It does not compromise the integrity of the justice system. Nor does it, in my view, compromise the fairness of the sentencing (trial) process for this accused.

I do not see “bad faith” in this exercise of the crown’s prosecutorial discretion. [ 70 ] What this exercise of discretion did and continues to do is to alter the extent of the jeopardy that the accused faces. It is Parliament that created the framework that gives to the prosecutor the choice of how to proceed. It is Parliament that has set the mandatory minimum penalty when the choice made is by indictment. This decision is what is referred to in the jurisprudence as an exercise of “core prosecutorial discretion”. It is not a tactical litigation decision or stratagem.

It is difficult to see how fairness of trial (or in this case, fairness of sentencing) is so compromised by this election of the crown as to amount to an abuse of process. [ 71 ] What the accused argues in this case, is that the crown made its election without (or without adequate) regard to information that it had relating to the accused (eg psychological report of the accused; case authorities provided by defence counsel), or that it should have acquired (eg by more extensive detail and classification of the child pornography on the accused’s computer; by review of the application of the COPINE scale classification [32] in prior Canadian jurisprudence).

This argument, similar to the one made in Anderson , I must reject, and for similar reasons. To impose on the prosecution an obligation to exercise its discretion only after having regard to the particular attributes of the accused, is to require the prosecution to exercise that discretion in a manner that will result in the imposition of a proportionate sentence. [33] The crown has no such duty either by statute or by common law.

The duty to make a decision that results in a sentence that is proportionate is a duty that the law imposes on judges, not on prosecutors. [ 72 ] The accused’s argument, in the present case “ … equates the duty of the judge and the prosecutor …there is no basis in law to support equating their distinct roles in the sentencing process. It is the judge’s responsibility to impose sentence; likewise, it is the judge’s responsibility, within the applicable legal parameters, to craft a proportionate sentence.

If a mandatory minimum regime requires a judge to impose a disproportionate sentence, the regime should be challenged” [34] [ 73 ] It is apparent from the evidence in the sentencing hearing that the crown did not ignore or disregard the psychological assessment provided by the accused. In fact, the crown challenged the assessment and the assessor.

The crown has no obligation to attenuate its position on the procedure by which it chooses to proceed on a hybrid offence, even where this choice triggers a mandatory minimum sentence, by reason of an assessment of the accused and the risk of his re-offending, particularly if it does not agree with that assessment.

As for the crown’s apparent disregard of the applicability of the COPINE scale to the evidence of the nature of the child pornography, while a prudent prosecutor should consider what case law says about the application of this scale, to not do so is not tantamount to so egregious an omission as to be an abuse of process. The crown did respond that it proposed to rely on Canadian jurisprudence. Whether or not the COPINE scale is applied and in what manner is a decision that applies to the imposition of sentence, not to the exercise of prosecutorial discretion.

The integrity of the justice system is not compromised by the crown’s exercise of prosecutorial discretion. On the contrary, there is a long standing and well recognized approach to the division of responsibility between crown prosecutors and the courts. [ 74 ] In

summary, the amended application (dated April 22, 2015 is dismissed. The accused has not shown an abuse of process has taken place as a result of the crown’s election to proceed by indictment, or by its decision in maintaining this position. He has not shown bad faith, or improper motive. The decisions of the crown are not so rare or exceptional as to require an explanation. The accused has not demonstrated that his Charter right to liberty has been infringed by the decisions made by the crown. Accordingly, he is not entitled to any remedy under s.24(1) of the Charter on the basis of this amended application. (

B) Amended Application dated November 30, 2015 [ 75 ] The accused brought a second application in November 2015, which was amended slightly a few days later. For the sake of clarity, the following is a list of the applications brought by the accused in this case. Date Nature of relief Basis of Claim (

a) May 16, 2013 Bail variation On consent (

b) April 9, 2015 Stay of proceeding Delay s.11(

b) Charter (

c) April 25, 2015 Stay of proceeding Delay s.11(b) / Abuse of process s.7 Charter [Amending (

b) above] (

d) June 5, 2015 Unspecified claim Charter s.7 and s.12 (Notice of Constitutional Question) (

e) Nov 27, 2015 Stay of proceeding Charter s.7 (fresh abuse of process)

(

f) Nov 30, 2015 Stay of proceeding Charter s.7 [Amending grounds in (

e) above] Apart from the Notice of Constitutional Question, there were two applications brought by the defence that were argued, namely, (

c) and (

f) above. [ 76 ] The amended application dated November 30, 2015 seeks the remedy of a stay of proceeding based on a fresh abuse of process by the crown. This is a different abuse of process than that relating to its election to proceed by indictment and to seek a penalty in excess of the mandatory minimum. The description of this “fresh” abuse of process is reproduced verbatim below.

It is somewhat convoluted in its wording. “ The present application herein dated 30 November 2015 is in respect of a fresh abuse of process, namely, the prejudice to the accused as a result of the failure of the Crown to give notice that its cross examination of witnesses would be “akin to a Gardiner hearing” for a purpose inconsistent with its position on sentence not disclosed to the court until 2 November 2015, wherefore the Applicant seeks a stay of proceedings and costs against the Crown.” [ 77 ] There is some difficulty in pinpointing what this “fresh abuse” was that the accused was alleging.

Clearly, it must be some action or inaction on the part of the crown. From the wording in this amended application, the conduct at the heart of the accused’s complaint was: “ … failure to give notice …” Notice of what? The words of the application continue: “ … that its cross examination of witnesses would be “akin to a Gardiner hearing” for a purpose inconsistent with its position on sentence..” The accused claims this fresh abuse of process resulted in prejudice to him. What does this mean, and how was the accused prejudiced thereby?

In this regard, the submissions of defence counsel were only somewhat helpful. [ 78 ] Firstly, the accused argues that the sentencing hearing was necessary and for two reasons. The first was that there was some differences of fact (and also of opinion) between crown and defence.

Secondly, there was some disagreement on what was found on the accused’s computer, more specifically what was the nature of this material, including where it stood in a categorization of child pornography. [ 79 ] The accused concedes that the sentencing hearing started out as a “Gardiner” hearing but at a certain point, the initial reasons for such hearing no longer applied. He argues that the continuation of cross examination by the crown in the context of this hearing was thereafter for a different purpose, one inconsistent with what it was seeking by way of sentence.

To what point in time is the accused referring? [ 80 ] Cross examination by the crown would have been on April 23, 2015. A review of the correspondence of counsel (Exhibit 16) shows that the parties came to a consensus, following the non-judicial pre-trial, that a sentencing hearing would be necessary (Exhibits 16-I and 16-J). This was as early as December 12, 2014. What position the defence took at the pre-trial is not known. However, I infer from the wording of Exhibit 16-I that that position had changed, prompting a desire by the crown for a sentencing hearing.

I must also infer that crown and defence were unable at that point to reach a mutually agreeable statement of the facts on which the court could act to impose a sentence (even if not on a joint submission). On what they were unable to agree, apart from the length of a custodial sentence, was not discernable from their correspondence. But over the course of the sentencing hearing, the areas in which they differed became more manifest. They included, for example (

a) Re: the child pornography – the quantity, the quality, the categorization, the scale or criteria of categorization (

b) Re: the accused’s use of the computer – his manner of searching for pornography, his frequency in searching and/or downloading, his way of dealing with it once downloaded, his computer skills and abilities, his understanding of the functioning of the (Torrent) program through which the child pornography materials were obtained and made available (

c) Re: the accused’s Assessment – the manner in which this was carried out, the validity of the tests in which the accused participated, the qualification of the assessor to give an opinion on what he gave an opinion in his assessment report. [ 81 ] The crown’s position on sentence changed twice, once in mid-December (Exhibit 16-

I) with a time limited offer of settlement, and the second on April 20, 2015. (Exhibit 16FF). This latter was not a time limited offer. It remained outstanding and reflects what the crown still seeks by way of sentence. [35] The cross examination of defence witnesses did not take place until April 23, 2015. [ 82 ] What would have been the purpose of continuing with the cross examination of witnesses by the crown at that point?

The accused argues that from April 23. 2015, the crown’s purpose in a Gardiner type hearing could no longer be to obtain evidence that was inconsistent with the accused’s reliance on ‘wilful blindness’ or to prove some other aggravating fact so as to justify the 18 month sentence of imprisonment it was initially seeking. It was not, at that point, no longer seeking that length of sentence. [ 83 ] Was the crown’s purpose in cross examining these witnesses improper despite its position on sentencing lowered to the mandatory minimum? Not so far as I am concerned.

The only suggestion why such cross examination might have been inappropriate at that point was that its purpose was to justify the earlier position the crown had taken on sentence (an possibly on election). I do not find this to have been the motive behind the crown’s cross examinations. The accused had, by this point, testified in chief. It would have been odd indeed had the crown left the accused’s testimony unchallenged given the contested nature of the sentencing hearing. The evidence from sentencing hearings should be foremost to assist the court in the determination of a fit sentence.

Courts are bound by statutorily imposed purposes and principles of sentencing, the application of which are to the facts of a particular case. Sentencing

hearing testimony is one source of those facts and in the context of a contested sentencing, testimony which has been tested by cross examination is particularly valuable. [ 84 ] In the present application, the accused refers to the failure of the crown to ‘give notice’. I am not sure what is meant by this. The crown is under no obligation to give notice that it intends to cross examine defence witnesses.

Nor is it under any obligation to give notice of the reason for its intention to do so. [ 85 ] As for prejudice to the accused, no explanation was offered as to how the cross examination, or lack of notice thereof, resulted in prejudice to the accused. It is the accused who has the onus of showing this prejudice. [ 86 ] Finally, the application asks for the remedy of a stay of proceedings. The authority for a stay is s.24(1) based on a

section 7 Charter infringement. However, in absence of a finding that the fresh abuse of process has taken place, there is no Charter breach and therefore no remedy available on this application. It is accordingly dismissed. NOTICE OF CONSTITUTIONAL QUESTION [ 87 ] The accused has filed a Notice of Constitutional Question on June 5, 2015. His first sentence indicates it is his intention to seek a remedy under subsection 24(1) of the Charter.

However, he does not actually ask for a remedy, or if he does, he does not specify what it is that he seeks or why it should be granted. [ 88 ] The issue of the whether the accused was challenging the constitutional validity of the mandatory minimum provisions of s.163.1(3) was raised during the course of the sentencing hearing. This question was put by the court to counsel for the accused and his response was equivocal. Ultimately, there were four questions in his Notice of Constitutional Question.

None of those, so far as I can tell, deal with the “constitutionality” of any Criminal Code provision related to this case. There is a submission at paragraph [14] of the Notice that statutory mandatory minimums in hybrid offence cases should be “struck down”, but the basis for this submission is essentially the same as the basis for his arguments in his two applications, which I have dismissed.

His Factum, attached to his Notice of Constitutional Question is identical to the Factum filed with respect to his applications. [ 89 ] There is an allegation by the crown of failure to comply with the Criminal Rules in the service of this Notice of Constitutional Question as well. It is not necessary for me to deal with this complaint. I do not find a constitutional question that requires any analysis. The essence of a constitutional question is whether a statutory provision is unconstitutional, that is, whether it offends the constitution of our country. If so, such provision can be struck down.

In the present case, the only provision that is the logical target for this Notice of Constitutional Question is the mandatory minimum provisions of s.163.1(3) Criminal Code . I do not make any finding that this provision is unconstitutional. Neither of the Attorneys General who were served participated in this Notice. SENTENCING [ 90 ] To recapitulate the highlights of this proceeding, the accused pleaded guilty to the offence of making available child pornography.

His plea was tendered on the basis of his wilful blindness, which, on the advice of his counsel, and relying on Spencer , he believed was not a defence but a proper foundation for his plea. His plea and sentencing date was cancelled and a sentencing hearing began which continued over three years and multiple dates, throughout all of which time, he was subject to bail conditions. He sought a stay of proceedings some two years after he was charged, by way of two applications, each of which was amended at least once. One application alleged a breach of his s.11(

b) Charter right to a trial within a reasonable time. This application was dismissed as most of the delay was attributable to the defence.. The other alleged an abuse of process on the part of the crown prosecuting the case in its election to proceed by indictment and choosing to pursue a penalty in excess of the mandatory minimum prescribed for the offence. This was dismissed as well. Also dismissed was the application based on a fresh abuse of process.

I ruled that the actions of the crown were within the crown’s sphere of prosecutorial discretion and did not meet the requisite criteria to amount to abuse of process. I did not find a breach of any s.7 Charter right to liberty. I declined to make a finding that any provision of the Criminal Code was unconstitutional on his Notice of Constitutional Question. I directed submissions specifically on sentence to be provided to the court in writing in the event that a stay was not granted and no finding of unconstitutionality was made.

The crown has tendered its submissions which consists of its position on sentence that should be imposed. The defence made more comprehensive submissions. [ 91 ] Sentencing on criminal offences is governed by sections 718 and following of the Criminal Code . The purposes and principles of sentencing are set out as mandatory guides for judges imposing sentence. The first step in the sentencing process is the finding of guilt. This finding was made some time ago following the crown’s evidence at the sentencing hearing.

The next step is to examine the punishment provisions for the offence on which the finding of guilt was made. In this case, there is a mandatory minimum punishment of imprisonment prescribed for the offence on which I have found the accused guilty. It is for one year when the charge is proceeded with by indictment. [ 92 ] The mandatory minimum penalty provisions, particularly in the more recent enactments of the Criminal Code , remove much of the judicial discretion in sentencing that pre-dated these changes.

These are not altogether welcomed by many members of the judiciary as they tend to follow the one size fits all approach to sentencing. Traditionally, sentencing has been considered as an exercise of a judicial function, certainly within the parameters of the sentencing provisions of the Criminal Code, but also subject to judicial discretion to be exercised on a case by case basis.

Nevertheless, the mandatory minimum provisions are the law of the land and departures therefrom must be rare and exceptional. [ 93 ] That child pornography offences are serious offences is not simply a conclusion that can be inferred from the fact that there may be mandatory minimum penalties prescribed. The reality is that these offences are a blight on our communities and on our society. They victimize those most vulnerable – children. The odious aspect of child pornography offences was well described in R. v.

Butters : [36] Child pornography crimes often involve, and invariably promote, the sexual exploitation of children. Children who are captured in live images are used as props. Their sexual integrity is violated before they are mature enough to make discerning choices. Tragically, many are subjected to physical sexual violation, most often before they are capable of consenting to the activity depicted. It is important to bear

in mind, therefore, that images depicting sexual contact with children, real or threatened, tend to chronicle sexual assault and that thosewho indulge in viewing or possessing or distributing such images encourage those abusers who make the images. To add to the offence,whether they are depicted as the object of sexual contact, or prompted to pose or display their bodies, these children are often used oroffered as sexual objects by those who should be protecting them, or they are being abused by others in positions of trust, or afterabduction.

For those whose images are put on the internet, the abuse does not end. They are captured as perpetual objects for the sexualgratification of others, and subjected forever to the ongoing loss of their sexual privacy and their dignity, world-wide. Those who commitchild pornography offences offend not only against the children who have already been abused, but against children generally becausechild pornography puts all children at risk.

Whether exposure to child pornography incites child sexual abuse, it unquestionably feeds thenotion that children are sexual objects and it creates a market for the exploitation of yet other children. Child pornography is offensivesmut, but it is more. It stands as an anti-social, injurious challenge to the ethical imperative that children are to be protected and nurtured.The Ontario Court of Appeal has rightly called possession of child pornography an "abhorrent" crime (R. v. Nisbet, supra at para 1) of"enormous gravity, both for the affected victim and society as a whole" (R. v. E.O. (ON CA), [2003] O.J.

No. 563 atpara. 7). [94] The defence has made the suggestion that the court has the option to impose a sentence less than the 12 month mandatoryminimum set out for this offence or to impose a conditional sentence notwithstanding the prohibition in doing so when a mandatoryminimum sentence of imprisonment applies. He relies on R. v. Donnelly, as a precedent for this approach. However, the circumstancesin Donnelly and in other cases that tend to stray from prescribed mandatory penal provisions are said to be exceptional and rare.

Moreimportantly, they tend to redress violations of Charter rights or other egregious conduct of the law enforcement, correctional or justicesystem directed at the accused.[37] In the present case, I do not find the kind of egregious conduct that prompts this judicial approach. Ihave not found any Charter rights violations. From an offender point of view, neither the accused nor his personal circumstances beginto approach those of the offender in Donnelly.

In short, this is not one of those cases where there is any reason to move downward fromthe mandatory minimum. [95] On the other hand, neither is this a case that warrants a sentence in excess of the mandatory minimum. The offender is at thelower end of the sentencing spectrum. He is a relatively young with no criminal record. I accept the opinion expressed in thepsychological assessment that he is not a sexual psychopath and that he does not show a high probability of re-offending.

In some ways,he and his offending are similar to the offender in Donnelly described at paragraphs [75] and [76] “ … the nature of the child pornography in this case was at the lower end of the spectrum of child pornography. More importantly,though, is Mr. Donnelly's role in this child pornography. Mr. Donnelly was not involved in recruiting the children who appeared in thesevideos. He did not cajole, coerce, threaten, promise or do any of the acts that others did, as a way of manoeuvring these children intoappearing on these videos, nor did Mr. Donnelly know of those acts. Mr.

Donnelly was not present during the events that took placeinvolving these children when they were videotaped. Mr. Donnelly did not create this business nor did he make contact with theindividuals who created the raw footage of these children. Mr. Donnelly did not create the website where these films were marketed andsold nor did Mr. Donnelly participate, in any direct way, in the profits that the sale of these films generated. … Further, there is noevidence that Mr. Donnelly is a person who has an interest in, or relishes the opportunity to create, child pornography. Mr.

Donnelly hasno personal collection of child pornography of the type that we often see, in other cases, where persons are accused of this type ofoffence” [96] For offences of this type, deterrence and denunciation are the predominating factors in sentencing. There was considerablereference to the accused’s wilful blindness with respect to this offence. Frankly, I am not persuaded that the accused was as myopic as hewould like the court to believe. He was aware of the way in which the “Torrent” program operated.

He was aware that he was acquiringimages from others and simultaneously making the images on his computer available to others who were using this same file sharingprogram. This is the essence of the “making available” aspect of his offence.

I do not find that his disregard for the way in which heparticipated is wilful blindness that merits any significant degree of mitigation with respect to his offence. [97] As for the categorization of the child pornography found on his computer, I agree that on any reasonable scale, the imagesfound were at the lower end of the scale in terms of seriousness of what was depicted. While the quantity was not large, it was stillsubstantial with over 3900 unique pictures, over 750 of which were readily accessible on the computer.

The evidence satisfies me that hesearched known child pornographic terms (eg teen porn), that he viewed child pornographic downloads and that he did so on more thanone occasion. [98] Having regard to all of the evidence at this sentencing hearing, after considering the offender and the offence, and theapplicable case authorities, and having found no Charter violations or other egregious conduct on the part of the crown that might qualifyas abuse of process, I am of the view that the mandatory minimum of twelve months of imprisonment is an appropriate custodialsentence to impose.

This would be subject to a reduction of this sentence by reason of time served calculated at a credit of 1.5 days foreach day served. I consider 18 months of imprisonment initially sought by the crown to be somewhat excessive having regard to all ofthe evidence. However, I do not fault the crown for seeking more than the mandatory minimum at the time that it did so. It did not havethe benefit of all of the evidence at that time.

It clearly re-assessed its position on sentence along the way and reduced its sentencingposition to the current position that is more reasonable. [99] As for other orders sought, I believe that 15 months of probation with the conditions sought by the crown in its writtensubmissions on sentence is appropriate to follow the term of imprisonment, more so than the three years of probation sought earlier on inthe case. [100] I am not persuaded that an order under any of the paragraphs (

a) to (

d) of s.161(1) of the Criminal Code is necessary ordesirable having regard to the sentence of imprisonment, the temporal term and conditions of probation, the length of time that theaccused has been subject to bail conditions and his response to those conditions, and the psychological assessment and pre-sentencereport filed in this case. [101] The other ancillary orders sought are mandatory for a conviction on the offence under s.163.1(3). This is a primarydesignated offence and a DNA order is appropriate to impose under s.487.051(1).

[ 102 ] There should be a forfeiture order with respect to the accused’s computer which was seized by police. [ 103 ] As for the SOIRA (Sexual Offender Information Registration Act) provisions in s.490.011, the offence in this case is a designated offence under clause (a)(viii) and an order is mandatory. Subsection 490.013 (2)(

b) mandates that an order made under this provision begins on the day it is made and ends twenty years after that date where the maximum term of imprisonment for the offence is ten or fourteen years. In the present case, it is ten years. [ 104 ] In the event that a victim surcharge applies, I am inclined to allow the accused six months to pay should he require some time. [ 105 ] As a final matter, the other charge on the information should be dealt with.

I understand that it is to be withdrawn by the crown given the outcome in these Reasons. [ 106 ] While the sentencing process was lengthy and at times appeared interminable, I commend counsel for their preparation and diligence and the professionalism in which they represented their respective interests, as well as for their able arguments. [ 107 ] Because of scheduling circumstances, these Reasons are provided to counsel but are not an actual imposition of sentence. I gather that a date will be obtained through the trial co-ordinator satisfactory to both counsel, the accused and the court.

Released: May 17, 2016 Justice John Kukurin, Ontario Court of Justice [2] S.163.1

(4) Every person who possesses any child pornography is guilty of (

a) an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or (

b) an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months. [3] S . 161

(1) When an offender is convicted, or is discharged on the conditions prescribed in a probation order … the court that sentences the offender or directs that the accused be discharged, as the case may be, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, shall consider making and may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from (

a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre; (a.1) being within two kilometres, or any other distance specified in the order, of any dwelling-house where the victim identified in the order ordinarily resides or of any other place specified in the order; (

b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; (

c) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate; or (

d) using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court. [16] Charter s. 11 . Any person charged with an offence has the right ... (

b) to be tried within a reasonable time;