R. v. Clark, 2018 NSPC 58

Provincial Court of Nova Scotia Citation: R. v. Clark , 2018 NSPC 58 Date: 20180627 Docket: 3007795 Registry: Amherst Between: Her Majesty the Queen v. Richard Alan Clark Decision ON SENTENCE Judge: The Honourable Judge Rosalind Michie Heard: 26 March 2018, in Amherst, Nova Scotia Decision: 27 June 2018 Charge:

Section 163.1(4) Criminal Code Counsel: Mr. Perry Borden, for the Crown Mr. Jim O’Neil, for the Defence By the Court: [ 1 ] This is the sentencing of Richard Clark. Mr. Clark pled guilty to one count of possession of child pornography, contrary to

section 163.1(4) of the Criminal Code . [ 2 ] The crown proceeded summarily in this case, and as a result, Mr. Clark is subject to a mandatory minimum sentence of six months imprisonment. The crown is seeking a sentence of six months imprisonment, followed by a 24 month period of probation. [ 3 ] The defence has made application to have the mandatory minimum penalty outlined in

section 163.1(4) of the Criminal Code to be declared unconstitutional by this court, as it is in violation of

section 12 of the Canadian Charter of Rights and Freedoms (hereinafter called the Charter ). In order to infringe s. 12 of the Charter , the mandatory minimum sentence must be grossly disproportionate to the appropriate punishment, having regard to the circumstances of the offence and the offender. [ 4 ] The defence is seeking a conditional sentence, which is less than the minimum punishment of six months imprisonment.

In the event that the court rules that the mandatory minimum sentence is constitutional, the defence would join in the crown request for a six month period of incarceration. [ 5 ] There is no dispute on the facts in this case, so I rely on the recitation provided by the crown in their submissions, which are as follows: 1. On March 9 th , 2016, Cst. Coldford, of the Provincial RCMP Internet Child Exploitation Unit (ICE), accessed the Child Protection System (CPS) to conduct an investigation into the sharing of Child Pornography in Nova Scotia using Peer-to-Peer (P2P) file sharing networks. Cst.

Coldford identified a computer that was using the Ares P2P file sharing network with the IP address of 76.11.97.152, as a possible suspect for having possession of Child Pornography. CPS records indicate that the user had been seen on CPS between January 22, 2016 and March 5, 2016 and was seen with 23 suspected Child Pornography files in their shared folder. 2. On March 9, 2016, Cst. Coldford viewed the list of 23 suspected child pornography files that the Ares client using IP address 76.11.97.152 had in their shared folder. Cst.

Coldford then selected 4 files that were dates as being in the shared folder on March 4, 2016 between 08:23 a.m. and 09:32 a.m. and downloaded copies of these 4 files from the other P2P clients. Cst. Coldford viewed all 4 files and believed they all met the definition of Child Pornography. All four files were videos, three of which depicted prepubescent girls, ranging in age from approximately 4-8 years old, involved in sexual acts with an unknown adult male. The fourth video depicted a young female approximately 12 years old engaged in sexual acts with an unknown pubescent male. 3. On March 30, 2016 Cst.

Coldford received documentation from Eastlink, as a result of a Production Order for Documents issued March 18, 2016 advising that the subscriber assigned to IP address 76.11.97.152 on March 4, 2016 was Richard Allan Clark, 3-3 Spring Street, Amherst, Nova Scotia. On June 22, 2016 Cst. Coldford arrested Mr. Clark. Search incident to arrest revealed an Acer computer tower and a Dell laptop from the accused’s residence.

A forensic examination of those devices confirmed eight child pornography photographs and 110 child pornography videos. [ 6 ] In preparation for this sentencing decision, I have had the benefit of the following information: 1. Pre-Sentence Report prepared August 28, 2017;

2. Counsel’s briefs dated August 15, 2017 and March 21, 2018 (defence) and August 23, 2017 (crown), and both parties’ oralsubmissions, which were heard on March 26, 2018, and I thank both counsel for their submissions in this case, it was very helpful to thecourt in this matter; 3. A Forensic Sexual Behaviour Pre-sentence Assessment prepared by Michael Hennessey, MA, R. Psych dated February 16, 2016; 4. 14 reference letters; and 5. A Letter from Mr. Clark’s therapist, Dominic Boyd, MSW, RSW, dated August 15, 2017. [7]

Section 12 of the Charter states that “Everyone has the right not to be subjected to any cruel and unusual treatment ofpunishment”. [8]

Section 163.1(1): In this

section “child pornography” means: (

a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means, (

i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged inexplicit sexual activity, or (ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under theage of eighteen years; (

b) any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the ageof eighteen years that would be an offence under this Act; (

c) any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under theage of eighteen years that would be an offence under this Act; or (

d) any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, ofsexual activity with a person under the age of eighteen years that would be an offence under this Act. [9] Under

section 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 ofimprisonment 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 aminimum punishment of imprisonment for a term of six months. [10] In R. v. Lloyd, 2016 SCC 13 , [2016] 1 SCR 130, the Supreme Court of Canada made the following comments atparagraphs 16-19: [16] Just as no one may be convicted of an offence under an invalid statute, so too may no one be sentenced under an invalid statute. Provincial Court judges must have the power to determine the constitutional validity of mandatory minimum provisions when the issuearises in a case they are hearing.

This power flows directly from their statutory power to decide the cases before them. The rule of lawdemands no less. [17] In my view, the Provincial Court judge in this case did no more than this. Mr. Lloyd challenged the mandatory minimum thatformed part of the sentencing regime that applied to him. As the Court of Appeal found, he was entitled to do so. The Provincial Courtjudge was entitled to consider the constitutionality of the mandatory minimum provision. He ultimately concluded that the mandatoryminimum sentence was not grossly disproportionate as to Mr. Lloyd.

The fact that he used the word “declare” does not convert hisconclusion to a formal declaration that the law is of no force or effect under s. 52(1) of the Constitution Act, 1982. [18] To be sure, it does not follow that a Provincial Court judge is obligated to consider the constitutionality of a mandatory minimumprovision where it can have no impact on the sentence in the case at issue. Judicial economy dictates that judges should not squandertime and resources on matters they need not decide. But a formalistic approach should be avoided.

Thus, once the judge in this casedetermined that the mandatory minimum did not materially exceed the bottom of the sentencing range applicable to Mr. Lloyd, he couldhave declined to consider its constitutionality. To put it in legal terms, the doctrine of mootness should be flexibly applied. If an issuearises as to the validity of the law, the Provincial Court judge has the power to determine it as part of the decision-making process in thiscase.

To compel Provincial Court judges to conduct an analysis of whether the law could have any impact on an offender’s sentence, asa condition precedent to considering the law’s constitutional validity, would place artificial constraints on the trial and decision-makingprocess. [19] The effect of a finding by a Provincial Court judge that a law does not conform to the Constitution is to permit the judge to refuse toapply it in the case at bar. The finding does not render the law of no force or effect under s. 52(1) of the Constitution Act, 1982.

It isopen to Provincial Court judges in subsequent cases to decline to apply the law, for reasons already given or for their own; however, thelaw remains in full force or effect, absent a formal declaration of invalidity by a court of inherent jurisdiction. [11] The accused has the onus of establishing a breach of his s. 12 Charter rights on a balance of probabilities. The Supreme Courtof Canada, in R. v. Nur, 2015 SCC 15 , [2015] 1 SCR 773 at paragraph 39 reaffirmed that there is a “high bar” for what

constitutes cruel and unusual punishment. A sentence must be: …grossly disproportionate to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of theoffender. [12] The “grossly disproportionate” analysis is a two-step process. First, the court must determine an appropriate sentence for theoffence, having regard to the purposes and principles of sentencing in the Criminal Code.

Second, the court must determine whether thestatutorily prescribed mandatory minimum sentence requires the court to impose a sentence that is grossly disproportionate to to theoffence and its circumstances (R. v. Nur (supra)at paragraph 46; R. v. Lloyd (supra) at paragraph 23). The relevant factors to considerinclude: 1. The gravity of the offence; 2. The personal circumstances of the offender; 3. The particular circumstances of the offence; 4. The effect of punishment on the offender; and 5. The penological goals and sentencing principles on which the sentence is fashioned.

Not all of these factors will be present in every case. The presence or absence of any of these factors is not determinative on the questionof gross disproportionality; R. v. Morrisey, 2000 SCC 39 , [2000] 2 SCR 90. 1.

The Gravity of the Offence [13] The seriousness of the offence, and harm done by child pornography has been amply illustrated and more fully recognized inthe evolving statutory provisions surrounding child pornography offences, including the imposition of mandatory minimum sentences,and in the trend toward increasingly severe penalties imposed by the court, as the harm done by child pornography to children and towider society has been more fully recognized. [14] In 2010, the Supreme Court of Canada in R. v.

Morelli, 2010 SCC 8 , [2010] 1 SCR 253, commented on the harmposed to our society by the existence of child pornography, at paragraph 8: To be sure, offences involving child pornography are particularly insidious. They breed a demand for images that exploit vulnerablechildren, both economically and morally. Understandably, offences of this sort evoke a strong emotional response. They generatewidespread condemnation and intense feelings of disapprobation, if not revulsion. [15] In R. v. T.L.B, 2007 ABCA 61, the court commented on child pornography as follows: Canada, as part of the world community, must do its

part in ensuring that appropriate sentences are imposed on those who choose toexploit children in this fashion. This offence is difficult to prosecute given the relative degree of anonymity offered through the use ofInternet. And the ease with which images of sexually exploited children can be transmitted through this instant, worldwide network addsto the gravity of the offence and the degree of victimization of the children. It takes only a click of a mouse for one child pornographerto spread graphic images of child sexual abuse internationally in seconds. [16] Chief Justice McLachlin, in R. v.

Sharpe, 2001 SCC 2 , [2001] 1 SCR 45, also discussed the harm posed by childpornography and accepted that the evidence establishes several connections between the possession of child pornography and harm tochildren: (1) that child pornography promotes cognitive distortions; (2) it fuels fantasies that incite offenders to offend; (3) it is used forgrooming and seducing victims; and (4) children are abused in the production of child pornography involving real children. She said, atparagraph 94 of R. v. Sharpe (supra): Possession of child pornography increases the risk of child abuse.

It introduces risk, moreover, that cannot be entirely targeted by lawsprohibiting the manufacture, publication and distribution of child pornography. Laws against publication and distribution of childpornography cannot catch the private viewing of child pornography, yet private viewing may induce attitude and arousals that increasethe risk of offence. Nor do such laws catch the use of pornography to groom and seduce children. Only by extending the law to privatepossession can these harms be squarely attacked.

And again, continuing at paragraph 158, Justice McLachlin said: The very existence of child pornography, as it is defined by s. 163.1(1) of the Criminal Code, is inherently harmful to children and tosociety. This harm exists independently of dissemination or any risk of dissemination and flows directly from the existence of thepornographic representations, which on their own violate the dignity and equality rights of children.

The harm of child pornography isinherent because degrading, dehumanizing, and objectifying depictions of children, by their very existence, undermine the Charter rightsof children and other members of society. Child pornography eroticises the inferior social, economic, and sexual status of children. Itpreys on preexisting inequalities. [17] In the decision of R. v. Kwok, (ON SC), [2007] OJ No. 457 (Ont.

SCJ), Madam Justice Molloy commentedat paragraph 49 as follows: As child pornography has become an increasingly pervasive evil in our modern society, our courts have become increasingly aware ofthe need to recognize the gravity of the offence and the enormous harm it causes. The impact of child pornography on the helplesschildren that are its subjects is obvious. In addition, it is now well recognized that pedophiles frequently use child pornography todesensitize the children they are preying upon; to “groom” them and persuade them that the reprehensible acts that are about to be

perpetrated on them are “normal” or acceptable. Collectors of child pornography seek to distance themselves from the direct physicaland emotional harm caused to children. However, the collectors of this filth are a vital part of the evil menace it represents and bearresponsibility for its malignant growth right along with its creators. (See R. v. Sharpe, 2001 SCC 2 , 2001, 150 CCC (3d) 321(SCC). 2. The Personal Circumstances of the Offender [18] R. v. Kwok (supra), at para. 7 provided guidance for how to assess aggravating and mitigating factors in child pornographycases: [7] 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 ofthe collection (including the age of the children involved and the relative depravity and violence depicted); (

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

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

v) whether the offender is willing to submit totreatment and counseling or has already undertaken such treatment; (vi) the existence of a guilty plea; and (vii) the extent to which theoffender has already suffered for his crime (for example, in his family, career or community). [19] In this case, Mr. Clark does not possess a prior criminal record. I also note that there was no production or distribution ofpornography in this case. 3. The Particular Circumstances of the Offence [20] The pornography seized in Mr. Clark’s case was a large collection, only eight photographs, but it contained 110 videos.

Noevidence has been presented that Mr. Clark presents a danger to other children, and there is no evidence that Mr. Clark purchased anypornography, as it was downloaded from a file sharing website. [21] Michael Hennessey, who is a clinical psychologist with the Nova Scotia Health Authority Forensic Sexual Behaviour Program,filed a comprehensive Forensic Behaviour Pre-sentence Assessment, dated February 16, 2017. The stated purpose for the referral was toprovide information prior to the sentencing process, and in particular, the assessment was undertaken to address Mr.

Clark’s sexualdeviancy, risk for sexual re-offence, personality and mental health issues, protective factors, treatment needs and recommendations, therisk posed to the public and the treatment needs and recommendations for Mr. Clark specifically. [22] Mr. Hennessey had information provided to him from both the crown and defence, and he also conducted 13 hours of clinicalinterviews, in addition to pen-and-paper tests, and a Penile Plethysmography Assessment (PPG). [23] Mr.

Clark disclosed that he was the victim of physical and verbal abuse by his father when he was a child, in addition torecurring sexual abuse by his brother and a neighbour. Mr. Clark also reported he was severely bullied as a child, which was confirmedby his mother, all of which was also disclosed in his interview for the pre-sentence report and the forensic behaviour risk assessment pre-sentence report. [24] Mr.

Clark was diagnosed as suffering from depression, adjustment disorder, avoidant personality disorder, past substance abusedisorder, and the psychologist queried the possible existence of post-traumatic stress disorder, obsessive-compulsive disorder and socialanxiety disorder. Most significantly, however, Mr. Clark was diagnosed with paedophilic disorder (males and females, nonexclusive)with specified paraphilic disorder (hebephilic; males and females, nonexclusive). [25] Mr. Clark’s risk for recidivism (both sexual and violent) was estimated to be in the low-moderate range.

It was noted that therisk for reoffending would most likely be by accessing illegal pornography, as the risk for contact offending was noted to be lowamongst persons whose sexual offending is limited to pornographic offences. However, it was also noted that Mr. Clark’s risk at presentis not being well managed, because Mr. Clark is easily emotionally dysregulated and has a history of ill-equipped coping strategies,including using drugs and pornography as an emotional coping mechanism. Mr.

Hennessey noted that polyvictimization, or exposure tomultiple types of maltreatment, such as physical and sexual abuse, is associated with sexual reoffending as well. Concern was alsoexpressed over Mr. Clark’s use of increasingly graphic, deviant pornography (such as child pornography) and unconventionalpornography to obtain the same level of sexual gratification. [26] Mr. Clark was found to be cooperative with the process for the most part, but he became very distraught during the PPGportion of the assessment, which led Mr. Hennessey to qualify in his report that he was unable to elucidate Mr.

Clark’s sexualpreferences, but did notice statistically deviant sexual arousal demonstrated to both male and female children. [27] The pre-sentence report details strong support from his mother, and a daughter that he loves very much, but he has limitedcontact with her since his arrest, except by telephone. He described his daughter as his source of strength. [28] The pre-sentence report revealed an unstable work history. Mr. Clark is now unemployed and surviving on social assistancebenefits and the assistance of family members.

He took full responsibility for his offence and stated that he understood the impact of hisactions. [29] I also reviewed in detail the letters of reference that were provided in support of Mr. Clark from his mother, his girlfriends,friends, his music band and community members, and his counseler, Mr. Dominic Boyd. Mr. Clark himself also wrote a letter to thecourt and provided his résumé for consideration, which I reviewed in detail. [30] I now address the particular circumstances of the offence. A useful sentencing formula wherein the court categorized the

levels of child pornography is provided in R. v. Missions , 2005 NSCA 82 at paragraph 14 .

The “Missions Test” was designed to assess and categorize child pornography. [14] As to the nature of the material, it will usually be desirable for sentencers to view for themselves the images involved, unless there is an agreed description of what those images depict…[We] categorize the relevant levels as: (1) images depicting erotic posing with no sexual activity; (2) sexual activity between children, or solo masturbation by a child; (3) non-penetrative sexual activity between adults and children; (4) penetrative sexual activity between children and adults; (5) sadism or bestiality. [ 31 ] There is no dispute as to the facts in this case.

The contents of the collection of child pornography seized from Mr. Clark was described by the crown and also in the forensic sexual behaviour pre-sentence risk assessment prepared by Mike Hennessey. Defence has taken no issue with that report or the description of the pornography collection that was contained in that report. The images depicted young girls under the age of 12 years old. Four of the images included an adult penis in or near the girl’s mouth. The children in the videos were primarily young girls, although three of them involved were young boys.

One of the videos involved a six year old girl with an adult penis in her mouth, and the man eventually ejaculated in her mouth. Another video depicted a six year old girl sleeping, with an erect penis near her face that eventually ejaculated into her open mouth and onto her cheek. The video ends with the girl awake and performing fellatio on an adult male who is standing next to her bed.

Other video names were also clearly indicative of child pornography, and were often prefaced with pthc, which is an acronym meaning “pre-teen hard core”, so “(pthc) dad cumming in toddler(2)”, “(pthc) my best friend fucks my daughter 13 yr old for 300 dollars, I film everything as a”, and “kitty pthc – toddler boy – very hot (march 2014)”. [ 32 ] The search terms discovered on Mr.

Clark’s computer also clearly indicated he was intentionally seeking out child pornography and using search terms such as “pthc”, “fuck a little girl”, “fuck daughter” and “pthc being fucked”. [ 33 ] After considering the description of the images provided by the crown, I find that the child pornography in the possession of Mr. Clark falls into the fourth category of the R. v. Missions (supra) scale. [ 34 ] When I consider R. v. Kwok (supra) and the aggravating factors which are present, I note that this collection of child pornography falls on a high level of the Missions spectrum, and the fact that Mr.

Clark accessed the child pornography over a period of several months. This was not an isolated event where he stumbled across child pornography, or searched for it on one occasion. In this case, Mr. Clark deliberately sought out child pornography on many occasions, as evidenced by his search terms and the fact that the videos and images were accessed and downloaded on different occasions. 4. The Effect of Punishment on the Offender [ 35 ] The crown is seeking a six month period of incarceration, followed by two years probation. Mr.

Clark would be eligible for early release after serving two-thirds of his sentence provincially, which would reduce the result of the mandatory minimum penalty. [ 36 ] The defence argues that given Mr. Clark’s personal circumstances, which include being himself a victim of past childhood physical, emotional and sexual abuse, coupled with Mr. Clark’s significant mental health issues and physical issues, including diabetes, the possibility that he may suffer from PTSD, and the fact that Mr. Hennessey, in his forensic sexual behaviour report, drew a connection between the abuse and Mr.

Clark accessing child pornography, that this would lead to a conclusion that a six month period of incarceration would equate to cruel and unusual punishment. [ 37 ] While Mr. Clark’s personal circumstances are very sympathetic, compassionate grounds are not a valid basis for declaring a sentence to be cruel and unusual punishment.

The crown argues that there is no legal authority to support this proposition, and provided case law that demonstrated that similar mandatory minimum sentences do not violate s. 12 of the Charter even in the circumstances of offenders with various physical or mental health challenges, and that they are consistent with a sentence that adheres to the principles of denunciation and deterrence. The crown submitted that Mr. Clark could receive treatment for his various physical and mental health issues within an institutional setting, and I find no evidence that Mr.

Clark could not receive appropriate treatment for his physical and mental health issues if, in fact, he were imprisoned. 5. Penological Goals and Sentencing Principles [ 38 ] The court must analyze the penological goals and sentencing principles in order to determine whether Parliament was responding to a pressing problem in enacting the mandatory minimums; see R. v. Morrisey (supra) at paragraph 33, and whether the mandatory minimum sentence is grossly disproportionate. [ 39 ] With respect to the statutory provisions that I must consider,

section 718 of the Criminal Code sets out the purposes and principles of sentencing: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall giveprimary consideration to the objectives of denunciation and deterrence of such conduct. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing, … (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years; shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [40] The court in R. v. Strohmeier, 2017 ONCJ 141 , at paragraph 6, also reflected on the nature and impact of childpornography, and the court’s response to it: [6] Possession of child pornography is a serious offence. The following general observations explain why: First, the prevalence of theoffence is of great concern to the community.

Whether it is because of the greater use of the Internet or an increase in law enforcement,there are more cases of possession of child pornography. In any event, the minimum jail term is a recent amendment to the CriminalCode and reflects Parliament’s decision to remove the possibility of a conditional sentence for the offence. Second, the victimization ofchildren captured in picture and video never ends. Time passes but the images remain. With the push of a button, those images can beshared with countless individuals throughout the world.

Third, notwithstanding the permanent record that exists, greater exposure tochild pornography leads to increased production, and the abuse of more children. Finally, there is a link between images of childpornography and inhibitions about the sexual abuse of children. See: R. v. Bauer [2002] O.J. No. 1135 (Ont. SCJ) aff’d at [2002] No.3564 (OCA); R. v. Streompl (ONCA), [1995] O.J. No. 2772 (OCA); R. v. Briere [2004] O.J. No. 5611 (Ont. SCJ); R.v.

Sharpe 2001 SCC 2 , [2001] 1 S.C.R. 45 (SCC). (emphasis added) [41] There have been changes, and a dawning realization by the courts about the seriousness and the impact of child pornographyon children and on society, and there have been a number of amendments or changes to the Criminal Code which reflect this. The first isin s. 718.01(

a) of the Criminal Code, enacted in 2005, which identified denunciation and deterrence as the primary sentencingconsiderations if the offence involves the abuse of a person under eighteen years of age. Rehabilitation may have assumed greaterweight in previous sentencing considerations, but Parliament made it a secondary consideration where the abuse of a minor is involved. [42] Second, s. 718.2(a)(ii.1) of the Criminal Code was enacted in 2007. This provision requires the court to increase a sentence ifit finds that in committing the offence, the offender abused a person under the age of eighteen years.

Inherent in the possession of childpornography is the abuse of children. [43] Third, decisions of the court reveal that since the early days of sentencing when the courts more regularly approved conditionalsentences for child pornography offences, the courts have been slowly learning about the extent and the effects of child pornography onthe internet, and the expanding technological advances and increasingly easy ability for users to access, download and share childpornography on the internet. As a result, sentences for child pornography have increased over time to reflect this.

This concern is alsoexpressed by Parliament in the imposition of the mandatory minimum sentence regime. I also note that the mandatory minimumsentences for child pornography offences were increased over a relatively short period of time from forty-five days to six months totwelve months (for indictable cases). [44] Both counsel have provided the court with a large selection of caselaw, for which I am very grateful.

I have also conducted myown research and it is apparent that it is very difficult to set out a narrow sentencing range in these cases, given the wide disparity in thefacts, the offenders, and the offences involved.

Most of the cases can be distinguished from each other and from the case at bar for onereason or another, but they are all important to address the principles of parity in sentence and in determining what an appropriatesentencing range is for possession of child pornography. [45] What is clear to me is that a conviction for possession of child pornography requires a custodial sentence, and I did not find anycases that supported a non-custodial sentence for this offence.

[ 46 ] In the case of R. v. Bock , 2010 ONSC 3117 , the court reviewed numerous cases dealing with sentencing for child pornography offences. The appropriate sentence range was found to be six to eighteen months incarceration. [ 47 ] In R. v. MacDonald , 2018 SKQB 18 , the accused was sentenced to sixteen months incarceration followed by three years probation, after being found in possession of twenty-four hundred images and eighty-two videos depicting child pornography. The offender was seventy-two years old with no prior criminal record.

The sentencing range was determined to be between six months and two years, depending on the circumstances. [ 48 ] In R. v. Boodram , 2018 ONCJ 159 , the court upheld the mandatory minimum and imposed a six month custodial sentence on a forty-two year old offender who was in possession of child pornography, had no prior record, and he in fact suffered from leprosy, and as a result was socially isolated and suffered from a severe medical condition, and the psychological conditions that flow from that. [ 49 ] In R. v. Burke, [2012] O.J.

No. 6588 , the accused was sentenced to six months incarceration for child pornography. The pornography collection included twenty-four videos and seventeen photographs, so similar but somewhat smaller than Mr. Clark’s pornography collection. [ 50 ] In R. v. Marknette , 2016 NSSC 230 , which is referred to in the crown brief, Justice MacDonald provided a thorough review of recent cases dealing with possession of child pornography and the ranges of sentences imposed: R. v. St. Martin 2014 ONSC 4401 , [2014] OJ 3846 – sentence of eight months incarceration; R. v.

Estub , 2014 ONCJ 546 , [2014] OJ 4899 – joint recommendation of ninety days incarceration rejected, and the accused was sentenced to a twelve month period of incarceration; R. v. Hudec , 2016 SKPC 16 , [2016] SJ 74 – a two year sentence was imposed after a guilty plea; R. v. Seguin , 2015 NSPC 95 , [2015] NSJ 573 – the accused was sentenced to seventy-five days custody; R. v. Mack , 2014 ONCJ 29 , [2014] OJ 372 – the sentence was two years less a day custody; R. v. T.J.R.M. , 2016 BCPC 177 , [2016] BCJ No. 1286 – ninety days intermittent custody; R. v.

Lysenchuk , 2016 ONSC 1009 , [2016] OJ 836 – a nine month period of incarceration was imposed; R. v. Le Courtois , 2016 ONSC 190 , [2016] OJ No. 122 – forty-five days custody imposed; R. v. Hoben , [2016] NJ No. 114 – twenty-one months custody imposed; R. v. Gryba , 2016 SKQB 123 , [2016] SJ No. 218 – two years less a day custody imposed. [ 51 ] The crown submitted a book of authorities, and in particular the decision in R. v. Clarke , 2016 CarswellNfld 77 , was useful because it illustrated a trend toward lengthier custodial sentences in the Newfoundland courts for possession of child pornography offences.

The range in that case was found to be from ten to sixteen months incarceration. [ 52 ] In the case of R. v. White , [2013] NJ No. 90 , Justice Stack indicated that the Newfoundland and Labrador Court of Appeal has set a sentence range between twelve and twenty-four months for possession of child pornography. [ 53 ] I also received caselaw from the defence as well, but unlike the preceding cases I referred to, they were not all cases dealing specifically with offenders who possessed child pornography, and the sentencing considerations that are unique to internet child pornography offences, except for R. v.

Swaby , [2016] BCJ No. 2973 . However, these cases were of considerable assistance to the court in considering the issue of what constitutes gross disproportionality in a general sense when undertaking a s. 12 analysis of whether a particular mandatory minimum sentence constitutes cruel and unusual punishment. [ 54 ] In particular, Judge Atwood’s decision in R. v. Hood , 2016 NSPC 78 , affirmed in R. v. Hood , 2018 NSCA 18 , wherein Judge Atwood addressed the mandatory minimum sentences for sections 151, 153 and 172 offences of the Criminal Code .

In that case, a teacher was alleged to have committed sexual offences against two students. Judge Atwood found that the mandatory minimum penalty was grossly disproportionate in Ms. Hood’s circumstances, and sentenced her to a fifteen month conditional sentence order, followed by twenty-four months probation. The sentence was upheld by the Nova Scotia Court of Appeal. [ 55 ] In R. v.

EJB , 2017 ABQB 726 , the court struck down the mandatory minimum sentence for an offence contrary to s. 153(1) of the Criminal Code , finding that although the one year sentence imposed on the offender in that particular case and on those particular facts was not grossly disproportionate, it would have been grossly disproportionate and therefore cruel and unusual punishment if it was applied to the reasonable hypothetical that was posited by the defence, which the court found would have attracted a sixty to ninety day sentence. [ 56 ] In R. v.

Swaby (supra), the court struck down the mandatory minimum sentence of ninety days for the possession of child pornography based on the particular circumstances of the twenty-six year old offender, who came before the court without a prior record, having been found in possession of four hundred videos depicting child pornography that fell on the more serious end of the spectrum. [ 57 ] After a full consideration of the jurisprudence, I find that with respect to Mr.

Clark, the range of sentence would be between six months to less than two years, or two years less a day, when the accused pleads guilty to possession of child pornography. [ 58 ] In the final analysis, Mr. Clark is thirty-nine years old, and the pre-sentence report revealed an individual who comes before the court with no prior criminal convictions and a history of volunteering his time freely in his community. He has the support of his

family and his friends. Both the pre-sentence report and the forensic sexual behaviour assessment indicate that Mr. Clark showedgenuine insight and remorse for his actions. He has been seeing a counselor of his own accord. He is motivated to be a good father tohis daughter, and to try to put his life back together.

It is clear that he has suffered emotionally, his reputation in the community has beennegatively impacted, and a conviction for an offence of this nature will affect his future ability to obtain employment. [59] I would characterize the pre-sentence report as relatively positive, as are the letters of support from the members of thecommunity and from his counselor. [60] I have applied the two part test as articulated in R. v. Nur (supra) to determine what constitutes a fit and appropriate sentence forMr.

Clark, having regard to the principles and purposes of sentencing set out in s. 718, 718.01, 718.1 and 718.2 of the Criminal Code,along with the caselaw and Mr. Clark’s personal circumstances, and the circumstances of the offence. I have considered the eightimages and one hundred and ten child pornography videos that Mr.

Clark possessed, and I agree with the submissions of the crown thatthis collection would fit into the fourth level on the Missions spectrum, which I indicated earlier. [61] I have also considered the fact that in this case the illegal activity of downloading the child pornography was not a singleisolated event.

It happened over a period of months. [62] I have also considered the sentencing principles in s. 718.01 of the Criminal Code and the caselaw, which puts the principles ofgeneral deterrence and denunciation as the prime sentencing principles to be addressed in such cases. [63] The trauma and harm that these types of offences cause cannot be understated, both to the child victims and to society at large,and it is clear that the sentencing regime for child pornography offences has evolved over time to take this into consideration.

This hasbeen addressed by increasingly elevated sentences for these offences, and the mandatory minimum sentences proscribed by the Code isalso evidence of this evolving acknowledgement of the harm done. [64] So in conclusion, the first question that I must ask is what is the appropriate sentence for the offence, having regard to thepurpose and principles of sentencing in the Criminal Code.

I have considered the statutory parameters, the jurisprudence, thecircumstances of the offence and the offender, the aggravating and mitigating factors, and it is my view that a six month period ofincarceration is the appropriate sentence for Mr. Clark. [65] I have considered the defence request for the imposition of a conditional sentence in the case at bar, and accordingly I havedirected myself to

section 742.1 of the Criminal Code and the case of R. v. Proulx, 2000 SCC 5 , [2000] 1 SCR 61. I do notfind on the facts of this case for this offender, given the totality of the reasons that I have addressed in this decision, that this is anappropriate case for a conditional sentence.

I find that a conditional sentence would not be consistent with the fundamental purposes andprinciples of sentencing, and more particularly with those of deterrence and denunciation in this matter. [66] The second question that the court must ask is whether the mandatory minimum sentence requires this court to impose asentence that is grossly disproportionate to the offence and its circumstances. In other words, would society be outraged by an accusedwho possessed eight images and one hundred ten videos of child pornography being subject to a six month minimum sentence?

I findthat it would not. [67] Accordingly, I have found that the appropriate sentence for Mr. Clark’s actions does not exceed the bottom of the sentencingrange and is not grossly disproportionate in these circumstances.

As such, I am declining to consider its constitutionality pursuant tosection 12 of the Charter. [68] The defence has indicated in their sentencing brief that should I find that the mandatory minimum is applicable, they wouldjoin in the recommendation of the crown for a six month period of incarceration, so in its own way, I consider this to be a jointrecommendation, and I am going to treat it as such, and apply the principles set out in R. v.

Anthony-Cook 2016 SCC 43 , [2016]SCJ No. 43, and as such I am required to give a joint recommendation the appropriate amount of deference, given the importance of jointrecommendations to the public and to the justice system as a whole. [69] Given that I have found the mandatory minimum to apply in this case, I must now consider the joint recommendation beforethe court. Under the public interest test, again I find the appropriate sentencing range for this offence to be from six months to twoyears.

Accordingly, the imposition of a six month period of incarceration as recommended in the joint recommendation would not bringthe administration of justice into disrepute. So it would essentially pass the public interest test. [70] Mr. Clark, I am going to ask if there is anything you wish to say to this court or address this court before I impose sentence. And you don’t have to. It’s your choice, sir. Take your time. I realize this is a very difficult situation that you are in. If you need amoment, you certainly can. I understand how stressful this is. MR.

CLARK: I obviously understand the gravity of the situation I’m in, and I know that it’s my own fault. Despite everything else,I’ve been trying to rebuild my relationship with my daughter. I found work again, that I’ll now probably lose. I don’t deserveanything…(inaudible – crying). [71] Thank you, Mr. Clark. I know that was very difficult, and I understand that you have a long road ahead of you, but it doesn’tcome without hope either. I mean Mr. Boyd himself had said there is the possibility of you perhaps relocating.

You have a relationshipwith your daughter, and I am glad that you still have some relationship with your daughter, and that door is not closed either. I don’twant you to think that you have no future, because you do have a future, and you can move on from this. So I thank you for yourcomments. [72] With respect to the charge that you did possess child pornography, contrary to

section 163.1(4) of the Criminal Code, the courtsentences you to a six month period of incarceration. After you have completed that period of incarceration, you will be placed on aperiod of probation for twenty-four months, with the statutory conditions that are set out in

section 732. Those statutory conditions are:

• Keep the peace and be of good behaviour. • Notify the probation officer of any change of name, address or occupation.

So those are the statutory conditions that everybody must follow who is subject to a probation order. [ 73 ] In addition, you will also be subject to the following optional conditions: • Report to a probation officer within three working days of your release from your period of incarceration, and thereafter as required to do so, or as directed to do so by your probation officer; • Have no contact with children under the age of sixteen years; • You are not to utilize the internet for non-employment purposes; • You are to remain in the province of Nova Scotia unless you receive permission to relocate from your probation officer; • You are to attend for, participate in and complete any counseling, treatment or program as directed by your probation officer. [ 74 ] In addition, the following ancillary orders will also be imposed: 1.

DNA order pursuant to

section 487.04 as this is a primary designated offence. 2. SOIRA order pursuant to

section 490.011 for a period of ten years. 3. An order pursuant to

section 161 for a period of two years, commencing on the date on which you are released from imprisonment, prohibiting you from: i. Attending a public park or public swimming area where persons under the age of sixteen years are present or can be reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre; ii. 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 sixteen years; iii.

Having any contact – including communication by any means – with a person who is under the age of sixteen years, unless the offender does so under the supervision of a person whom the court considers appropriate; or iv. Using a computer, internet enabled cellular telephone, or any device capable of accessing the internet or other digital network, except for employment or educational purposes, and only when supervised personally by an adult who is not subject to court ordered restrictions on access to or communication with minors. 4. A forfeiture order pursuant to

section 164.2 of the Criminal Code , dealing with the forfeiture of the, I assume computers and pornographic material. Mr. Borden, I assume, has prepared that order or will provide that order to the court. MR. BORDEN : I will. [ 75 ] As the crown is proceeding summarily in this case, there is a one hundred dollar victim fine surcharge. He will be given one year to pay that amount. MR. O’NEIL : I think the order may cover it. I thought the first clause of the probation order I think just said sixteen. I think that should also say in the company of another adult, so he can continue to see his daughter. MR.

BORDEN : Not an issue, Your Honour. [ 76 ] Certainly, that will be added. So, no contact with a person under sixteen unless accompanied by another adult. Rosalind Michie, JPC.