2018 QCCA 306, 2018 QCCA 306

R. c. Régnier 2018 QCCA 306 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No: 200-10-003356-172 (160-01-000130-153) (160-01-000136-150) DATE: March 1, 2018 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. JEAN BOUCHARD J.A. SIMON RUEL, J.A. HER MAJESTY THE QUEEN APPLICANT - Prosecutrix v.

RAYNALD RÉGNIER RESPONDENT– Accused JUDGMENT [ 1 ] The Crown seeks leave to appeal from the sentence of 18 months imprisonment imposed by the Court of Quebec, Criminal Division, District of Alma (the Honourable Jean Hudon) on the respondent on March 14 2017, after he pleaded guilty to charges of accessing, possessing and distributing child pornography (s. 163.1 Cr.

C .). [ 2 ] For the reasons of Bouchard J.A., with which Duval Hesler C.J.Q. and Ruel J.A. agree, THE COURT: [ 3 ] GRANTS the application for leave to appeal the sentence; [ 4 ] ALLOWS the appeal; [ 5 ] SUBSTITUTES the trial judge’s sentence of 18 months’ imprisonment on the charges of distribution of child pornography (counts 6, 7, and 8) for 36 months imprisonment, all other orders remaining in force. NICOLE DUVAL HESLER, C.J.Q. JEAN BOUCHARD, J.A. SIMON RUEL, J.A.

Mtre Julie Roy Criminal and penal prosecutor For the applicant Mtre Jean-Marc Fradette Fradette & Le Bel For the respondent Date of hearing: December 6, 2017 REASONS OF BOUCHARD, J.A.

INTRODUCTION [ 6 ] The applicant seeks leave to appeal the sentence of 18 months’ imprisonment imposed by the Court of Quebec [1] on March 14, 2017, on the respondent after he pleaded guilty to charges of accessing, possessing and distributing child pornography, which are worded as follows: [ translation ] In file number 160-01-000130-153: 1. Between November 1, 2005, and August 8, 2012, in Alma, District of Alma, did have in his possession child pornography, thereby committing the indictable offence set out in s. 163.1(4) (

a) of the Criminal Code . In file number 160-01-000136-150: 1. Between August 9, 2012, and February 25, 2015, in Alma, District of Alma, did have in his possession child pornography, thereby committing the indictable offence set out in s. 163.1(4) (

a) of the Criminal Code . 2. Between August 1, 1998, and October 31, 2005, in Alma, District of Alma, did have in his possession child pornography, thereby committing the indictable offence set out in s. 163.1(4) (

a) of the Criminal Code . 3. Between August 9, 2012, and February 25, 2015, in Alma, District of Alma, did access child pornography, thereby committing the indictable offence set out in s. 163.1(4.1) (

a) of the Criminal Code . 4. Between November 1, 2005, and August 8, 2012, in Alma, District of Alma, did have in his possession child pornography, thereby committing the indictable offence set out in s. 163.1(4) (

a) of the Criminal Code . 5. Between July 23, 2002, and October 31, 2005, in Alma, District of Alma, did access child pornography, thereby committing the indictable offence set out in s. 163.1(4.1) (

a) of the Criminal Code . 6. Between August 9, 2012, and February 25, 2015, in Alma, District of Alma, did distribute or make available child pornography, thereby committing the indictable offence set out in s. 163.1(4) (

a) of the Criminal Code . 7. Between November 1, 2005, and August 8, 2012, in Alma, District of Alma, did distribute or make available child pornography, thereby committing the indictable offence set out in s. 163.1(3) (

a) of the Criminal Code . 8. Between August 1, 1998, and October 31, 2005, in Alma, District of Alma, did distribute or make available child pornography, thereby committing the indictable offence set out in s. 163.1(3) (

a) of the Criminal Code . [ 7 ] This appeal concerns only the length and fitness of the prison sentence. The other orders rendered by the trial judge are not challenged. [2] [ 8 ] The applicant argues that the sentence imposed by the trial judge does not sufficiently consider the gravity of the offences committed in this case, particularly those relating to the distribution of child pornography.

In addition, the trial judge gave too much weight to the respondent’s rehabilitation efforts and applied a range of sentences made obsolete by amendments to child pornography offences in the Criminal Code since 2005. [ 9 ] For the following reasons, I would allow the appeal and substitute the 18-month prison sentence imposed by the judge with a 36-month sentence. THE FACTS [ 10 ] On February 25, 2015, a search warrant was executed at the respondent’s residence following an investigation by the Service de la surveillance technologique of the Sûreté du Québec.

Various computer media were seized (disks, CDs and external hard drives) containing 71,548 images and 2,407 videos of child pornography within the meaning of the Criminal Code . [3] Most of the files depict girls aged 0 to 12 engaged in all kinds of sexual activity. The judge wrote the following on the subject: [ translation ] [5] Sergeant Mélanie Bélanger of the Sûreté du Québec viewed all of the files. She has worked in the Child Sexual Exploitation Unit for the past four and a half years.

In her view, the quantity and quality of the images, and the extended period over which the offences were committed make this one of the most significant cases she has ever had to deal with. [6] Most of the files that she viewed depict girls aged 0 to 12 and fall into either the category of child pornography or nudity . [7] The child pornography category depicts sexual acts, such as anal penetration, vaginal penetration, touching of the vagina, fellatio, sexual touching, masturbation, and modelling photographs in which the young girls are naked and the anus or vulva are visible. [8] The nudity category depicts young naked girls in explicit sexual positions. [9] The vast majority of the files fall into the child pornography category. [10] The Court viewed certain images - which it wishes it had not seen - which are degrading, disgusting and beyond imagining.

Mr. Régnier’s counsel did not want to see them. [4]

[Emphasis added] [ 11 ] As I intend to intervene, given that the trial judge, in spite of what he wrote, did not actually consider the gravity of the offences in this case, I shall reproduce an excerpt of Officer Mélanie Bélanger’s testimony at the sentencing hearing on the contents of the files seized: [ translation ] When I referred to infants a few months old being sexually assaulted, well, here we see a very young boy, less than one (1) year old, who is being anally penetrated.

With the little girls, with fellatio, here the little girl is maybe four (4) or five (5), she is holding an erect penis and performing fellatio. When I sometimes referred to images that are a little “harder”, here we see a child who is younger than five (5), perhaps between three (3) and five (5), a young girl, hanging by her feet with a rope, she is gagged and an object is inserted in her vulva. I think this basically … describes the photos.

I won’t go through them all. [ 12 ] The evidence shows that the files were downloaded over a period of 16 years, between June 16, 1998, and the search carried out on February 25, 2015, during which the respondent was downloading child pornography. In this regard, it is useful to again reproduce the officer’s testimony: [ translation ] Q. Ok. And it’s...I would ...Would you elaborate on that, during the arrest, during the periods concurrent to the arrest, what can you tell us about Mr. Régnier’s activity on the Internet? A. Well, the…. Mr.

Régnier’s IP address was active on child pornography sharing sites and on the morning of the arrest, Mr. Régnier’s computer was on and the file sharing software [eMule] was running and downloading child pornography. [ 13 ] It is important to note that eMule, the file sharing software, allows users to download files directly from another computer while giving other users access to their own files. The trial judge therefore concluded: [ translation ] [13] Mr. Régnier was not merely downloading files; he was sharing files and made files available.

That is in fact what allowed the police to discover his crimes. [5] and, I would add, to charge him with distribution of child pornography. [ 14 ] After he was arrested, the respondent started seeing a sexologist, whose report was filed with the judge during submissions on sentencing. A pre-sentence report and a sexological assessment were also prepared. [ 15 ] At trial, the applicant asked that the respondent be sentenced to three years in prison.

The respondent submitted that a sentence of two years less a day to be served in the community would be appropriate should the minimum sentences provided in s. 163.1 Cr. C. not apply. He added that, should they apply, the sentence should not exceed the minimum one year.

THE TRIAL JUDGMENT [ 16 ] After summarizing the context of the police investigation, the nature and very large number of files seized, the judge then described the respondent: an ordinary man, 55 years old, married for 27 years and owner of a convenience store with his wife. [6] [ 17 ] The respondent was sexually abused at the age of 14, but apparently suffers no residual effects of that abuse. [7] Furthermore, he believed that he was not harming anyone by viewing child pornography and that everyone does it. [8] The judge noted, however, that the arrest served as a wake-up call for the respondent, and that he immediately started therapy with a sexologist after he was arrested.

He realized the consequences of his actions and is ashamed and remorseful. [9] [ 18 ] The judge then summarized the sexological and pre-sentence reports, as well as the progress report prepared by the sexologist treating the respondent.

He concluded that, in spite of his progress, there is still work to be done. [10] [ 19 ] The judge recognized that the sentencing objectives here are denunciation and deterrence, [11] and he reiterated the reasons why the courts are increasingly strict when imposing sentences for offences against children: [ translation ] [39] It is false to claim that child pornography offences have no victims merely because the accused is not committing acts directly against a person. [40] On the contrary, there are direct victims, those in the photographs or videos.

The children are being used as sexual objects and the trauma affects them for the rest of their lives. [41] The harm to these young people is direct and, as the Supreme Court of Canada stated in Sharpe , child pornography offences contribute to the exploitation of children and to inciting people to produce pornographic files. [12] [Reference omitted] [ 20 ] He then went on to note that the objective gravity of the offences is high and described the various legislative changes to the maximum and minimum sentences over the period the offences were committed. [13] He also focused on the subjective gravity of the offences committed by the respondent, which involve very young victims of sexual abuse. [14] The trial judge found that the respondent

bears full criminal liability. [15] [ 21 ] The trial judge considered the following aggravating factors: − the number of files; − the extended period over which the offences were committed, that is, nearly 17 years; − the ages of the children, from a few months up to 12 years; − the acts in the files, that is, sexual activity between young girls and adult men, young boys and young girls, ranging from vaginal penetration to anal penetration, vaginal touching, fellatio, sexual touching, ejaculation on the body and into the mouth and nude photos in sexually explicit positions; − the accused was aware of his problem; − the accused failed to seek help to address his problem over the period the offences were committed; − the accused trivialized the consequences for the victims of the offences; − he did not stop on his own, but due to the police intervention. [16] [ 22 ] The trial judge listed the following mitigating factors: − the guilty plea; − no criminal record; − his willingness, after the arrest, to be treated by a sexologist; − his active participation in that treatment; − his remorse; − his acceptance of his problem and his willingness to undergo the required treatment; − he is an asset to society; − he remained in his relationship; − the social stigma experienced, which is hardly surprising given that he owns a convenience store and is therefore known. [17] [ 23 ] However, he cannot rule out the likelihood of re-offending. [18] [ 24 ] Finally, the trial judge noted that the range of sentences for possession and distribution from six months to two years, established by this Court in St-Pierre c.

R. [19] still applies [20] and that the respondent’s sentence must fall in the upper end of that range. [21] He sentenced the respondent to a prison sentence of 18 months on each count, [translation] “even though the objective gravity of possession and access is lower than that for distribution – that is, 5 years instead of 10 years – these sentences are to be served concurrently”. [22] THE STANDARD OF INTERVENTION IN SENTENCING [ 25 ] Sentencing principles are well known and are listed in ss. 718 to 718.2 Cr. C.

These broadly worded principles give trial judges broad discretion. [23] For that reason, appellate courts must show great deference in an appeal against sentence. [24] For example, they should not substitute a different sentence for the one imposed by the sentencing judge based merely on a point of view.

Intervention is justified only if the sentencing judge erred in law or in principle, and only where that error had a significant impact on the sentence, making it demonstrably unfit or clearly unreasonable. [25] [ 26 ] The sentencing judge must be guided by the fundamental principle of proportionality, set out in s. 718.1 Cr.

C. , which states: 718.1 [Fundamental principle] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 27 ] The principle ensures that the trial judge’s analysis is two-pronged: one, it considers the gravity of the offence committed, and two, it assesses the offender’s moral blameworthiness. [26] One

part cannot be elevated at the expense of the other. [27] [ 28 ] I bring up that well-known principle because, as we shall see below, the judge contravened it in two ways: first by according the same weight to the crimes of accessing, possessing and distributing child pornography, while the latter crime is much more serious than the other two, [28] and second, by placing too much emphasis on the respondent’s rehabilitation efforts, [29] whereas the principles of denunciation and deterrence should have prevailed. [30] [ 29 ] The principle of parity of sentences, set out in s. 718.2(

b) Cr. C. , is another sentencing principle I find useful to recall. Based on this principle, the courts have established general sentencing ranges to promote consistency in sentencing. [31] [ 30 ] I am well aware that “ the choice of sentencing range … falls within the trial judge’s discretion and cannot in itself constitute a

reviewable error.” [32] Nevertheless, I believe that the judge committed such an error in this case, because he wanted to impose a sentence in the upper end of the range of sentences for child pornography. [33] That range is obsolete and must be revised upwards. [ 31 ] That being said, I cannot blame the judge for having felt bound to follow that range, since it has been used on more than one occasion by this Court. [34] It must be set aside for the reasons below. [35]

SECTION 163.1 Cr. C. [ 32 ]

Section 163.1 Cr. C. was enacted with the obvious purpose of protecting children . It followed Canada’s 1991 ratification of the UN Convention on the Rights of the Child . [ 33 ] Two years later, in 1993, Parliament adopted s.163.1 Cr. C. , which recognizes that “children are one of the most vulnerable groups in society, particularly with regard to sexual violence.” [36] At the time, the punishment for child pornography did not include mandatory minimum sentences. [ 34 ] Mandatory minimum sentences appeared in 2005 due to the skyrocketing use of the Internet, as evidenced in the

preamble to the Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act : [37]

Preamble WHEREAS the Parliament of Canada has grave concerns regarding the vulnerability of children to all forms of exploitation, including child pornography, sexual exploitation, abuse and neglect; WHEREAS Canada, by ratifying the United Nations Convention on the Rights of the Child, has undertaken to protect children from all forms of sexual exploitation and sexual abuse, and has obligations as a signatory to the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography; WHEREAS the Parliament of Canada wishes to encourage the participation of witnesses in the criminal justice system through the use of protective measu35res that seek to facilitate the participation of children and other vulnerable witnesses while ensuring that the rights of accused persons are respected; AND WHEREAS the continuing advancements in the development of new technologies , while having social and economic benefits, facilitate sexual exploitation and breaches of privacy; [Emphasis added] [ 35 ] The following excerpt from the reasons of L’Heureux-Dubé, Gonthier and Bastarache JJ. in Sharpe , also reflects that intention: 166 It should be emphasized that some of the material in the respondent’s possession was on computer disk and capable of instantaneous distribution, creating a risk that this material might in fact be disseminated.

The widespread availability of computers and the Internet has resulted in new ways of creating images, and has facilitated the storage, reproduction, and distribution of child pornography. Detective Waters likened this increased distribution to a tidal wave. As stated in Criminal Intelligence Service Canada’s Annual Report on Organized Crime in Canada (2000), at p. 13: “ The distribution of child pornography is growing proportionately with the continuing expansion of Internet use . Chat rooms available throughout the Internet global community further facilitate and compound this problem.

The use of the Internet has helped pornographers to present and promote their point of view.” Criminalizing the possession of child pornography may reduce the market for child pornography and decrease the exploitative use of children in its production. [38] [Emphasis added] [ 36 ] Thus, on November 1, 2005, the Criminal Code was amended [39] to introduce a minimum sentence of 45 days for possession and access to child pornography (the maximum sentence of 5 years remained unchanged) and a minimum sentence of 1 year for production and distribution (the maximum sentence of 10 years remained unchanged). [40] [ 37 ] On August 9, 2012, the minimum sentence for the offences of possession and access was increased to 6 months. [41] [ 38 ] Since July 17, 2015, the offences of production and distribution carry a maximum sentence of 14 years.

The minimum sentence for possession and access was increased to 1 year and the maximum sentence to 10 years. [42] [ 39 ] Obviously, the numerous legislative amendments to the child pornography provisions over the past 12 years tend towards harsher penalties. They reveal Parliament’s clear intention to provide increased protection to children and to impose strict sentences on offenders who gravitate around this increasingly harmful industry, given the increasingly easy online access. [ 40 ] In my opinion, it is time to give the legislative intent its full effect.

Sentencing ranges are merely tools intended to aid trial judges in their work, [43] and I see no valid reason for continuing to apply, out of jurisprudential imitation, precedents rendered at a time that no longer reflect today’s reality. THE IMPACT OF MINIMUM SENTENCES [ 41 ] Mandatory minimum sentences not only raise the floor for sentences for a given offence, they also have an inflationary effect on those sentences. [ 42 ] In R. v.

Morrisey , Arbour J. explained the tendency in the following terms: 75 … Therefore, in my view, the mandatory minimum sentences for firearms-related offences must act as an inflationary floor,

setting a new minimum punishment applicable to the so-called “best” offender whose conduct is caught by these provisions. The mandatory minimum must not become the standard sentence imposed on all but the very worst offender who has committed the offence in the very worst circumstances.

The latter approach would not only defeat the intention of Parliament in enacting this particular legislation, but also offend against the general principles of sentencing designed to promote a just and fair sentencing regime and thereby advance the purposes of imposing criminal sanctions. 76 The proper approach to the determination of the constitutional validity of mandatory minimum sentences, under the guidance of the jurisprudence of this Court, is, in my view, to give effect to this inflationary scheme , except when the statutory impossibility of going below the minimum is offensive to s.12 of the Charter where the mandatory minimum requires the imposition of a sentence that would be not merely unfit, which is constitutionally permissible, but rather one that is grossly disproportionate to what the appropriate punishment should be.

The search for the appropriate punishment is not an abstract exercise. It is very much guided by the types of sentences that have been imposed in the past on similarly situated offenders, and because of that, it changes over time, and may come to reflect the inflationary consequences of the proper application of mandatory minimum sentences for particular types of offences . In this respect, I would disagree with Quinn J., who in the firearms manslaughter case of R.v.Scozzafava , [1997] O.J. No. 5804 (QL)(Gen.

Div.), at para. 33 observed that the existence of the four-year minimum should not result in a proportional general increase beyond the range of sentences found in pre-1996 cases. [44] [Emphasis added] [ 43 ] In R. v.

B.C.M. , the British Columbia Court of Appeal made the same observation: [31] While the views of Arbour J. are not precedentially authoritative, the sentencing judge was entitled to adopt them as a logical and appropriate statement of the interaction between minimum sentences and the traditional sentencing principles, notably proportionality, which requires that similar offenders receive similar sentences. A minimum sentence does not oust that fundamental principle. The search for a fit sentence is still guided by similar sentences imposed in the past on similarly situated offenders.

Nevertheless, a mandatory minimum sentence introduces a higher starting point and therefore a narrower range within which that principle will operate . The notion of a fit sentence must be adjusted accordingly if the principle of proportionality is to remain operative. [32] For example, in this case, the introduction of the mandatory minimum sentence of one year for making child pornography significantly shrinks the range of sentencing options. It excludes consideration of a suspended sentence and probation under s. 731, or a conditional sentence under s. 742.1 of the Code .

The only remaining sentencing options are terms of imprisonment between the staturory [ sic ] minimum of one year and the statutory maximum of ten years. Thus, the least culpable offender in the least serious circumstances, who might have received a more lenient sentence prior to Bill C-2, will now be sentenced to one year in prison. It would be inconsistent with proportionality if worse offenders in more serious circumstances, who might have received a one year sentence prior to Bill C-2, continue to be sentenced to one year under the new regime.

The principle that similar offenders should receive similar sentences requires acknowledgement that a minimum sentence has a proportionate inflationary effect on the balance of the sentencing range. [45] [Emphasis added] [ 44 ] At trial, the judge applied a sentencing range with a ceiling of two years for the crimes of possession and distribution of child pornography.

As the minimum sentence for the crime of distribution has been one year of imprisonment since November 1, 2005, I cannot comprehend how the upper end of the range should only be two years. [46] The increased minimum sentences serving as a floor established a new minimum threshold, [47] and that range should have been increased a long time ago. THE SCOPE OF MAXIMUM SENTENCES [ 45 ] With a view to increasing the range, it must also be considered that the crime of distribution was subject to 10 years’ imprisonment at the time of the facts. [48] As the Supreme Court pointed out in R. v.

L.M. , maximum sentences should not be reserved only for the worst cases involving the worst circumstances and the worst criminals: [18] This individualized sentencing process is part of a system in which Parliament has established a very broad range of sentences that can in some cases extend from a suspended sentence to life imprisonment. The Criminal Code provides for a maximum sentence for each offence.

However, it seems that the maximum sentence is not always imposed where it could or should be, as judges are influenced by an idea or viewpoint to the effect that maximum sentences should be reserved for the worst cases involving the worst circumstances and the worst criminals. As can be seen in the case at bar, the influence of this notion is such that it sometimes leads judges to write horror stories that are always worse than the cases before them.

As a result, maximum sentences become almost theoretical : In the end the difficulty with maximums is that they may be seen as almost theoretical rather than as an indication of how seriously an offence is to be treated in the “ordinary” case. (T.W. Ferris , Sentencing: Practical Approaches (2005), at p. 292) [19] As Morin J.A. noted in his dissenting reasons, human nature is such that it will always be possible for a court to imagine a worse case than the one before it.

Morin J.A. rightly pointed out that it is important for a judge, when deciding whether the maximum sentence can or should be imposed for a given offence, to avoid contemplating fictitious situations in this way. This approach is consistent with this Court’s case law . [20] In R. v. Cheddesingh , [2004] 1 S.C.R. 433, 2004 SCC 16 , the Court acknowledged the exceptional nature of the maximum sentence, but firmly rejected the argument that it must be reserved for the worst crimes committed in the worst circumstances.

Instead, all the relevant circumstances provided for in the Criminal Code must be considered on a case-by-case basis, and if the circumstances warrant imposing the maximum sentence, the judge must impose it and must, in so doing, avoid drawing comparisons with hypothetical cases. [49] [Emphasis added]

[ 46 ] I shall revisit the import of these remarks in my analysis of the subjective gravity of the offences committed by the respondent. [ 47 ] R. v.

L.M. is also relevant on another level. [ 48 ] It is worthwhile noting that, in that decision, the Supreme Court upheld the overall sentence of 15 years’ imprisonment, broken down as follows: 10 years on the count of sexual assault and 3, 5 and 5 years for possessing, making and distributing child pornography, thereby restoring the trial judgment that this Court had set aside. [50] [ 49 ] Certainly, the crimes committed by L.M. were much more serious, as he sexually assaulted his own daughter and made money by distributing these assaults over the Internet.

He also had prior convictions. [51] The case was based on events that took place in 2002, and I do not see how we can continue today to apply a range with an upper end of 2 years, after the Supreme Court , in 2008, upheld sentences of 3 and 5 years for possession and distribution of child pornography.

THE CRIME OF DISTRIBUTION OF CHILD PORNOGRAPHY [ 50 ] The trial judge sentenced the respondent to 18 months’ imprisonment on each of the counts of accessing, possessing, and distributing of child pornography, thereby stripping the offence of distribution of its objective gravity, even though it is recognized as a much more serious offence than possession or access. [52] [ 51 ] I would like to refer to the reasons of Pelletier J.A. in R. c. Von Gunten , which make that distinction clear: [ translation ] [14] There is no question that the offence of possession is a serious one.

However, care must be taken not to confuse that offence with the offences of production and distribution, which are much more closely related to the harm Parliament wishes to eradicate, namely, the shameless exploitation of children. … [28] Furthermore, there is no evidence that the respondent shared his perverse fantasies with anyone or that he permitted or otherwise made available the use of the pornographic material in question. It can be concluded from the evidence that the respondent used this material purely for his own personal purpose in the privacy of his home.

From that perspective, his offence falls at the bottom of the scale of seriousness applicable to cases of possession. [53] [ 52 ] In R. v. Sharpe , McLachlin C.J., writing for the majority, stated: “The links between possession of child pornography and harm to children are arguably more attenuated than are the links between the manufacture and distribution of child pornography and harm to children”. [54] [ 53 ] In R. v. Hunt , the Alberta Court of Appeal made similar remarks: [30] Parliament has recognized the seriousness of the possession of child pornography by providing for a maximum punishment of five years.

It has also recognized that the distribution and making of child pornography are more serious offences by making the maximum sentence ten years . The maximum term of imprisonment recognizes the stronger link with the abuse of children and the escalating pressing societal need to denounce and deter such activity.

Therefore, sentences imposed upon those who actually make child pornography ought to be greater than those who simply possess it . … [55] [Emphasis added] [ 54 ] The respondent, before both this Court and the trial judge, argued that his action, [translation] “ a simple click”, was an automatic gesture, thereby seeking to trivialize it basically indicating that the fact that he distributed or made child pornography available was no big deal.

The Court does not accept this argument. [ 55 ] I note that the respondent shared the files in his collection using the eMule software, without which he would not have been able to access the files of other Internet users. As soon as he downloaded a file onto his computer, he made that file available to others. [ 56 ] That being the case, the fact that downloading and sharing cannot be dissociated has no bearing on the reality that the resulting consequences and harm to children are much more serious than those flowing from possession.

The repercussions of a simple “click” to download, and hence, to share, must not be underestimated. Rather, the focus must be on the consequences of that action, on the serious harm that it causes. [ 57 ] In this respect, Canadian courts unanimously view the continuous expansion and increasingly easy use of the Internet not as an excuse for offenders, but as an evil that needs to be urgently eradicated, as evidenced by several excerpts from the relevant case law: [56] R. v.

D.G.F ., 2010 ONCA 27 [21] Over the last two decades, courts have been on a learning curve to understand both the extent and the effects of the creation and dissemination of child pornography over the Internet and to address the problem appropriately …. [22] Unfortunately, the incidence of this behaviour appears to be increasing and expanding as technology becomes more sophisticated, encouraging the production of child pornography and greatly facilitating its distribution.

The victims are innocent children who become props in a perverted show, played out for an ever-wider audience not only of voyeurs but of perpetrators . [Emphasis added] R. v. S.D.M ., 2015 BCPC 112

[31] The sentences I impose must account for aggravating and mitigating circumstances.

They must account for the fact that young children were abused in the process of making this material, and that abuse continues each time that material is shared or viewed. … … [49] Children are victimized in the most brutal and intrusive way at every stage of the child pornography continuum; from the grooming to the undressing, to the posturing, to the exposure, to the forceful intrusion into their most private places, to the physical force and restraint of the child, to threats and physical violence, and to the emotional struggle many of these children will endure over a lifetime.

There is a concern that this offending against children is increasing and that the easy ability to circulate this material over the internet is encouraging that growth. Once these images are introduced to the internet, there is no ability to control where they appear, what use is made of them, how often they are re-sent and viewed. Those who possess, view, chat about and exchange child pornography provide the encouragement and the audience for those who would abuse children in order to produce that content .

Thus the emphasis on deterrence and denunciation as the primary sentencing objectives in cases involving those who possess and circulate this materiel. [Emphasis added] R. v. T.L.B ., 2007 ABCA 61 [27] The maximum sentence for the distribution of child pornography under s.163.1 (3) of the Criminal Code is 10 years – double the penalty for the possession of child pornography. The sexual exploitation of children through child pornography and the use of the Internet to distribute it constitute a profound and present danger to children around the world. Canada, as part of the world community, must do its

part in ensuring that appropriate sentences are imposed on those who choose to exploit children in this fashion . This offence is difficult to prosecute given the relative degree of anonymity offered through the use of the Internet. And the ease with which images of sexually exploited children can be transmitted through this instant, worldwide network adds to the gravity of the offence and the degree of victimization of the children . It takes only a click of a mouse for one child pornographer to spread graphic images of child sexual abuse internationally in seconds.

Thus, the primary sentencing principles that apply in sentencing those convicted of distributing child pornography must be deterrence and denunciation. In imposing the sentence she did, the sentencing judge failed to give proper weight to these principles. [Emphasis added] R. v. A.R.C ., 2012 ABPC 252 [76] The use of digital cameras, computers and the Internet in connection with child pornography creates a further level of victimization. Access to and distribution of child pornography images has been made immeasurably easier.

Individuals can access and share images from the privacy of their own homes in relative anonymity. Images on the Internet can be distributed easily and widely, can be sent all over the world and can remain forever, thereby perpetuating the victimization which gave rise to the images . [77] The gravity of offences involving child pornography and the need for that to be reflected in sentencing was addressed by the Court of Appeal, which characterized initial sentencing responses to child pornography laws as “relatively lenient”: As recently reflected by the Supreme Court’s decision in R . v.

M. (L.) , 2008 SCC 31 , [2008] 2 S.C.R. 163, and as expressed by the Ontario Court of Appeal in R. v. F. ( D.G.) , 2010 ONCA 27 , at paras. 21 to 22 , the initial sentencing response of the courts to the child pornography provisions was relatively lenient. As the courts and society as a whole are increasingly becoming aware of the extent and effects of such abuse of children, the level of sentencing should be responsive to the gravity of the crime thus revealed : see e.g. R. v. Innes , 2008 ABCA 129 , 429 A.R. 164; F. (D.G.) . R. v.

B.(P.J.) , 2010 ABCA 49 , at para 10 . [78] Legislative changes made in 2005 introduced mandatory minimums, thereby eliminating the possibility of a conditional sentence order. A minimum sentence creates an “inflationary floor” for sentencing. ( Hammond , supra at para 8; R. v. Ferguson , 2006 ABCA 261 at paras. 71 to 72 , affirmed 2008 SCC 6 , [2008] 1 S.C.R. 96. [Emphasis added] [ 58 ] In light of these excerpts, it is clear that the distribution of child pornography over the Internet contributes more to the sexual exploitation of children than simple possession.

This fact, which in my view is indisputable, is widely documented internationally. [ 59 ] It is now established that the Internet facilitates communications not only between those who produce child pornography and potential victims , [57] but also between users of that content, thereby leading to the creation of veritable [translation] “communities” . [58] The communities create a false sense of social acceptability and normalcy, which diminishes viewers’ inhibitions. [59] In addition, the proliferation of child pornography material over the Internet serves to desensitize viewers and stimulates a demand for ever more extreme material. [60] [ 60 ] International authorities that have studied these issues acknowledge that the increased availability of content due to the constant expansion of the Internet represents an increased threat to children, and that national and international measures must be taken to combat this scourge. [61] [ 61 ] In

summary, distribution of child pornography is a more serious offence than simple possession, and the trial judge erred in principle by imposing prison sentences of the same length for both offences. THE SUBJECTIVE GRAVITY OF THE CRIMES COMMITTED

[ 62 ] In the present case, the nature of the files seized that the respondent had distributed or made available over the Internet is most harmful to children. I will not revisit the dehumanizing and degrading character of those files, except to recall that that they fall at the high end of the level of gravity established by the Nova Scotia Court of Appeal in R. v. Missions : [62] [14] … He relied on an English Court of Appeal decision, R. v. Oliver , [2002] E.W.J.

No. 5441, where the court categorized levels of child pornography as follows: 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… [W]e 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 . [Emphasis added] [ 63 ] I am aware that the trial judge referred to the nature and number of files seized, the duration of the offences and the age of the children as aggravating factors. [63] With respect, he did not give sufficient weight to the Supreme Court’s comments in R. v.

L.M ., cited above, whereby maximum sentences should not be reserved for the worst cases involving the worst circumstances and the worst criminals. [64] [ 64 ] Given the extended period over which the offences were committed (16 years) and during which the respondent used the eMule software to share his collection (one of the largest ever recorded in the case law) widely on the Internet, I am of the view that the judge should have considered him an actor and leading distributor in the sexual exploitation of children, an offence for which, at the material time, the legislator had established a maximum prison sentence of 10 years (which today is 14 years). [ 65 ] The evidence reveals in fact that the respondent used targeted searches to locate this kind of content.

Sergeant Mélanie Bélanger confirmed that the respondent used the following key words: “PTHC” for “Preteen hard-core” and “4YO” for “four years old”: [translation] As for the videos, if you look at the file title, it begins with PTHC, that’s the key word that people searching for child pornography will type in on the Internet, it means “Preteen hard-core”, so, “preteen”, it’s…under thirteen (13) years old, and the h is for “hard”, they are looking for images or videos that are more sexually explicit. … I can show you one last one.

So, the title PTHC again, which means “Preteen hard-core lolly fuck hop va”, and when it says “4YO”, it means you expect that the file, the child will be “four years old”, so for sure you would expect a young child to be in the video. [ 66 ] At this stage of my analysis, I must examine the respondent’s efforts at rehabilitation and determine whether the 18-month sentence imposed by the judge is justified by his consideration of those efforts.

THE RESPONDENT’S REHABILITATION [ 67 ] It is clear from the case law of various Canadian appellate courts that rehabilitation is not the most significant factor in sexual offences involving minors. Rather, the focus must be on denunciation and deterrence. [65] [ 68 ] In R. v. Bergeron , [66] Bich, J.A. recalled the principle in the following terms: [translation] [87] The respondent’s efforts at rehabilitation certainly must be recognized, and he is on the road to recovery. But the reprehensible nature of the offence and the censure it deserves cannot be ignored.

In this case, the objectives of denunciation and deterrence demand a sentence that clearly reflects that censure. [88] Although the trial judge discussed that objective, she did not give it the scope it warranted or the attention it deserved. In fact, her decision appears more as a way of circumventing it. She is not to be blamed, as the current state of the respondent, who is rehabilitated, does indeed generate a certain sympathy.

However, it cannot prevail here and does not justify a unduly lenient sentence outside of the range . [Emphasis added] [ 69 ] The British Columbia Court of Appeal reiterated the importance of emphasizing the principles of denunciation and deterrence for offences involving child pornography: [49] Similarly, in my opinion, the sentencing judge correctly identified the appropriate range of sentences for possession of child

pornography. I accept that based on the cases the range of sentences for possession of child pornography is broad, but as the judge recognized, courts have over the years developed a greater appreciation of the harm caused to children by its manufacture, distribution and possession. More recent cases place greater emphasis on denunciation and deterrence and sentences have tended to increase . [67] [Emphasis added] [ 70 ] The Alberta Court of Appeal made similar comments: [2] The sentencing judge gave careful consideration to the facts and to the aggravating and mitigating circumstances.

He correctly concluded that deterrence was the primary consideration in sentencing for offences involving predatory crimes against children. Denunciation was the secondary consideration, followed by rehabilitation. [68] [ 71 ] The trial judge wrote that [translation] “ there is no doubt that the relevant objectives are denunciation and deterrence, both individual and collective”. [69] In light of the excerpts cited above, it is obvious that he did not err in making that statement. [ 72 ] The judge then described the respondent’s efforts at rehabilitation.

The respondent had attended 23 sessions with a sexologist referred by his lawyer pursuant to a recognizance entered into a little more than a week after his arrest. [ 73 ] Nonetheless, the author of the pre-sentence report stated that [translation] “ in his [the respondent’s] case, the awareness is embryonic and needs to develop”. The following passage is also drawn from the sexologist’s assessment filed in the record: [translation] We believe it would be important for Mr. Régnier to develop an understanding of his offence and the circumstances that led to his acts .

He tends to minimize his responsibility and avoid questioning his behaviour, claiming that he had an addiction. [ 74 ] Undoubtedly , the judge could take the respondent’s reintegration into society into account and decrease the sentence that he should have otherwise received. The problem here is that the judge did not feel that a prison sentence is necessary in this case, [70] when it clearly is.

In so doing, he imposed an “unduly lenient” sentence on the respondent [71] that does not reflect the objective or subjective gravity of the offences committed. [ 75 ] In my view, the respondent’s efforts at rehabilitation, although laudable, do not justify the 18-month prison sentence that was imposed.

CONCLUSION [ 76 ] The sentencing judge plays a leading role in our criminal justice system. [72] He or she has broad discretion that warrants considerable deference from appellate courts. [73] [ 77 ] For this reason, and because the principle of sentencing remains a highly individualized process, [74] it is not up to this Court to make an abstract determination of the future of the sentencing range applicable to child pornography. [ 78 ] At the conclusion of this analysis, however, I believe I can state that the intense social disapproval attached to the offence of distributing child pornography cannot accommodate a range with a two-year ceiling.

Where appropriate, judges must feel free to impose sentences above that threshold. In 1998, in R. c. L.(J.-J.) , [75] Otis J.A. recalled that the protection of children is a fundamental value of any organized society: [translation] Certain offences reflect the values protected by a human community at a certain point in its history that eventually become outdated as society evolves. The same cannot be said of sexual offences involving young children.

The protection of children was a fundamental value sustained over time by most organized societies before repressive criminal laws that punished such offences existed. Fragmentation during the emergent organization of a child’s personality, when only fragile defensive structures are available, leads to suffering, distress, and a loss of self-esteem over the long term.

The sexual abuse of young children should never be tolerated in a healthy society . [Emphasis added] [ 79 ] For all these reasons, I would allow the Crown’s appeal and substitute a sentence of 36 months’ imprisonment for the 18 months’ imprisonment imposed at trial on the charges of distribution of child pornography (counts 6, 7, and 8), all other orders remaining in force. JEAN BOUCHARD, J.A.