R. v. Foley, 2013 ONCJ 26

Citation: R. v. Foley , 2013 ONCJ 26 ONTARIO COURT OF JUSTICE Her Majesty The Queen and John Foley JUDGMENT – SENTENCE Ms. E.E. Evans For the Crown Mr. D.W. Johnson, Q.C. For Mr. John Foley Renaud, J. - January 24, 2013 1) A review of the accusation and of the offender’s situation

a) The nature of the accusation: [ 1 ] Mr. John Foley was charged with two counts of possession of child pornography and one count of accessing such material, prosecuted by indictment, contrary to s. 163.1 of the Criminal Code . He entered a relatively early guilty plea, having regard to the need for disclosure and pre-trial conferences in such cases. To be precise, the charge read as follows: “... between the 7 th of January 2011 to the 8 th of February 2011 ... unlawfully did have in his possession child pornography, to wit, computer graphic images, contrary to s. 163.1(4) of the Criminal Code .

b) The nature of the child pornography in question: [ 2 ] The police investigation revealed that on January 7, 2011, Mr. Foley obtained a number of electronic files containing, at least in

part if not wholly in each instance, child pornography. The investigator reported, and this was not contested, that Mr. Foley eventually had access to as many as 616 files and he thus possessed images of quite young females, of preteen young persons, and of adolescents, involved in and subjected to a variety of quite exploitative and damaging sexual violence, it being understood that all sexual violence is inherently damaging and exploitative. Some of the images focused on a variety of young girls who were made to expose themselves.

Suffice it to say that on a crude scale of harm, these were the least grave images. Counsel and I were provided with a sampling of the images involving far graver sexual violence and they included, regrettably, the usual types of child pornography in which children are depicted whilst being raped, including vaginal penetration, penetration of the anus, and also of the mouth.

As noted, the range of ages embraces quite young babies and appeared to depict exploitation and harm mostly to children from 6 to 12 years of age but also included situations in which more than one male is harming the victim at the same time whilst other images depict bonding, or two children being made to touch each other. [ 3 ] Mr.

Foley was cooperative with the police officer at the time of the execution of a search warrant, facilitating the work of the police, and noted at the time of his arrest that he had accessed and downloaded the child pornography “out of curiosity and not for sexual purposes.” [ 4 ] Although it is difficult to compare cases, I find that the material possessed by Mr.

Foley is as grave and vile as what is typically found, but he was not in possession of a particularly significant number of files or images, and in terms of the size only of his “collection”, it tended towards the middle of the spectrum, all other aggravating factors being equal, and leaving aside the mitigating information which is not relevant to the objective nature and size of the child pornography in question.

c) The legislative sentence range at the relevant time:

[ 5 ] Counsel agreed that Mr. Foley must be sentenced to a jail term of at least 45 days and that the maximum term of imprisonment, in light of the Crown’s election, is one of 5 years.

d) The offender possesses an American criminal record which is unrelated: [ 6 ] The two most important elements in mitigation in this case are the guilty plea, discussed below, and the fact that offender is a first offender in terms of such matters. By reason of the fact that the only prior crime was apparently disclosed by Mr. Foley and refers to felony theft in Florida in 1988, I elect to assign very little weight to this prior crime as he completed his lengthy community-based sentence successfully, including restitution.

e) The guilty plea: [ 7 ] The most important mitigating factor in this case is the recording of a guilty plea by an offender who assumed responsibility for his wrongdoing from the outset. Accordingly, great mitigating weight is assigned to this quite favourable element which is demonstrative of remorse and which suggests clearly a present and future resolve to act responsibly. That having been said, Mr. Foley did express regret not just for his crime but for the negative consequences which have resulted from his very public arrest in a small community and subsequent media coverage. I need not review the many well known cases justifying leniency as a result of his guilty plea.

f) The positive pre-sentence report: [ 8 ] A further mitigating factor of note is the positive pre-sentence report. Overall, the report of Ms. Lynda Bouchard, a quite experienced probation officer, may be summarized by repeating the information found at page 6 under the rubric “Recommendations”: “Based on the above information, namely the offender’s willingness to follow any recommendations set out by his psychiatrist and the steps he has taken thus far to obtain a better understanding of his behaviour, we believe the offender to be a manageable risk in the community ...” Mr.

Foley has found new employment and his level of familial and community support is adequate, in the circumstances. A lengthy period of probation is required, as sought by the Crown and not vigorously opposed by the defence, and the offender may seek a variation and eventually a termination of the order of probation as his treatment is pursued and success is achieved. [ 9 ] Again, it is not necessary to repeat here the many cases that underscore that a favourable pre-sentence report is highly advantageous in the sentencing equation and assists the offender to request an individualized and lenient sentence.

g) Dr. P. Fedoroff’s report and the relatively low risk of further offending conduct: [ 10 ] Dr. Paul Fedoroff, a very experienced psychiatrist and the Director of the Sexual Behaviours Clinic associated with the Faculty of Medicine of the University of Ottawa provided a well-reasoned, insightful and detailed 13 page report dated February 27, 2012, which sets out the results and the nature of a number of quite useful and invasive tests and assessments seeking to address the risk of further offending conduct. The report includes a number of comments made by Mr.

Foley to the effect that he was never sexually aroused by images of children or by children themselves. In the final analysis, Dr. Fedoroff concluded that though he had not reviewed the materials seized by the police, which must be taken into account in assessing the degree and level of risk of future offending conduct which the testing otherwise disclosed, he was of the view that “... He presents as a person who earnestly accepts he did wrong and wishes to ensure that he never reoffends for the sake of his family” and “... Mr.

Foley likely has a low risk of reoffending...” 2) A review of the legislation and the case law relevant to sentencing for the offence of possession of child pornography

a) The

preamble to s. 718 of the Criminal Code of Canada : The emphasis on "a just, peaceful and safe society" [ 11 ] In approaching this difficult sentencing case, I thought it best to begin by reviewing the

preamble to s. 718 of the Criminal Code , to then address each of the codified sentencing objectives found at clauses

a) to f). This will serve to introduce a number of the relevant societal goals that the sanction to be selected must seek to advance. It must be understood that certain of the elements of the discussion which follows are no longer as relevant in light of the recent amendments to the Criminal Code , notably the fact that a greater minimal jail term is mandated. Indeed, had Mr. Foley committed this offence on today’s date, the minimum jail term would be one of six months. That being said, his sentence reflects only the law as it stood at the time of the offending conduct in early 2011. [ 12 ] S. 718 is the

section of the Code often described as the means whereby Parliament has expressed its intent or "purpose" in sentencing, referred to as "les objectifs de la peine" in French. In sum, the fundamental expression of purpose may be summarized aptly by stating: Parliament wishes the Courts to ensure a safe Canadian society. [ 13 ] Indeed, the

preamble to

section 718 of the Criminal Code reads as follows: Purpose and Principles of Sentencing Purpose The fundamental purpose of sentencing is 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: [ 14 ] For ease of reference, I have listed below the objectives listed at clauses

a) to

f) of s. 718 .

a) to denounce 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,

f) to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community. [15] Evidently, the foregoing enumeration of the codified objectives enshrines in a formal way the expression by Parliament of thefundamental purpose of sentencing. More to the point, it is the first attempt by Parliament to consign in a systematic fashion theexpression of a legislative design and thus these words are to be assigned signal importance.

Accordingly, the words to be emphasizedare obviously those addressing the objective of achieving “a just, peaceful and safe society”. [16] Notwithstanding the patent importance of the introduction on September 3, 1996, of this Parliamentary resolve to assistsentencing Courts, the

preamble is not often referred to in the sentencing calculus itself, save when it is recited to ensure context to theenumeration of the sentencing objectives which are typically included in a sentencing judgment. A rare exception is seen in R. v. Rogers,2008 NLCA 19.

The judgment reminds us at para. 10 of the obvious objective of protecting the public: “Underlying these principles[found at s. 718.1 and s. 718.2 of the Criminal Code] are the objectives of protecting the public, implicit in s. 718's reference tomaintenance of a just, peaceful and safe society', and promoting respect for the law by denunciation of unlawful conduct.” Thus, theprotection of the public is at the forefront of the concerns of the legislators and this implicit objective is made manifest in light of thepreamble's reference to a “just, peaceful and safe society”. [17] In this vein, it will be of assistance to quote from a further case which also represents an exceptional contribution to ourunderstanding of the wishes of Parliament as we find a direct reference to the

preamble in the sentencing judgment. Indeed, para. 43 of R. v. McArthur (2004), (ON CA), 19 C.R. (6th) 38 (C.A.) reads: [43]

Section 718 of the Criminal Code identifies the fundamental purpose of sentencing as being: To contribute, along with crime prevention initiatives, to respect for the law and maintenance of a just, peaceful and safe society byimposing just sanctions... [18] The Court of Appeal went on to add the following observations: “[44] That purpose is achieved by blending the variousobjectives of sentencing identified in s. 718. The proper blending of those objectives depends on the nature of the offence and the natureof the offender. In this case, the objectives of denunciation and specific deterrence must dominate almost to the exclusion of the otherobjectives recognized in s. 718.”

b) Denunciation at clause 718(

a) of the Code and child pornography: [19] The first objective found in s. 718 of the Criminal Code is consigned at clause (

a) and refers to denouncing unlawful conduct,within the context of the general objective of achieving a "just, peaceful and safe society". Indeed, the objective of denunciation maybest be understood in these terms: by sentencing offenders to various sanctions, ranging from an absolute discharge to imprisonment forlife, sentencing courts seek to make plain to all the members of the community the nature of unlawful conduct which is inimical toachieving a "just, peaceful and safe society".

At bottom, this objective embraces and fosters the communication of our fundamentalvalues to all of the members of the community and seeks in particular to demonstrate how unlawful conduct undermines our collectiveaspiration to fulfilling lives free of fear from offences, especially violent ones. In addition, the Courts seek to denounce conduct whichassails our collective hopes for a future in which justice, peace and safety are of paramount importance.

i) Denunciation defined: Communicating values [20] In the report of R. v. Latimer (2001), 2001 SCC 1 , 39 C.R. (5th) 1, para. 86 guides us in the following respect: [86] Finally, this sentence is consistent with a number of valid penological goals and sentencing principles. Although we would agreethat in this case the sentencing principles of rehabilitation, specific deterrence and protection are not triggered for consideration, we aremindful of the important role that the mandatory minimum sentence plays in denouncing murder.

Denunciation of unlawful conduct isone of the objectives of sentencing recognized in s. 718 of the Criminal Code. As noted by the Court in R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 81: [81] The objective of denunciation mandates that a sentence should communicate society's condemnation of that particular offender'sconduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct shouldbe punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law.

Furthermore, denunciation becomes much more important in the consideration of sentencing in cases where there is a high degree ofplanning and premeditation, and where the offence and its consequences are highly publicized, [so that] like-minded individuals maywell be deterred by severe sentences': R. v. Mulvahill and Snelgrove (1993), 21 B.C.A.C. 296, at p. 300.

This is particularly so where thevictim is a vulnerable person with respect to age, disability, or other similar factors. [21] When denunciation is viewed as an exercise in communication, one of the lessons that emerge is that a cardinal element ofsentencing that is fundamental to the preservation of the Canadian community is the continued development of an unwaveringunderstanding of what actions are positive in nature and which are inimical to the public weal. As stated earlier, sentencing must advancethe societal goal of promoting "a just, peaceful and safe society".

In this sense, judges are instructed to address the imperative need todenounce emerging threats to the well-being of the community and, as well, to alert the whole of the citizenry to the fact of new threatsto the safety of all and in particular to the safety of many vulnerable potential victims. In this respect, R. v.

Folino (2005), (ON CA), 77 O.R. (3d) 641 (C.A.) includes these fundamental remarks on the nature of the sentencing exercise in cases ofinternet luring, as consigned at para. 25: [25] ...I wish to first make it clear that I fully agree with the sentencing judge that the offence of child luring must be dealt with seriously

by the courts. The social policy underlying the enactment of this offence is clear. Many Canadian families have home computers withInternet access. Children are frequent users of the Internet. Children, as vulnerable members of our society, must be safeguarded againstpredators who abuse the Internet to lure children into situations where they can be sexually exploited and abused. In most circumstancesinvolving the offence of child luring, the sentencing goals of denunciation and deterrence will require a sentence of institutionalincarceration.

Indeed, it will only be in the rarest of cases that a conditional sentence will be appropriate in a case involving this offence.In my view, however, this is one of those rare cases. [22] In this respect, it will be of assistance as well to recall a passage from the judgment of the Supreme Court of Canada in R. v. M. (C.A.) (1996), (SCC), 46 C.R. (4th) 269 (S.C.C.), at para. 81: “Retribution, as well, should be conceptuallydistinguished from its legitimate sibling, denunciation [...]” Subsequently, the Court added these passages, also found at para. 81: [81] [...] As Lord Justice Lawton stated in R. v.

Sargeant (1974), 60 Cr. App. R. 74, at p. 77: ‘society, through the courts, must show itsabhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass’. The relevanceof both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system ofnegative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing anenumerated offence. Our criminal law is also a system of values.

A sentence which expresses denunciation is simply the means by whichthese values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentencesshould also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed bythe Criminal Code. [Emphasis added] [23] Turning next to the case of R. v. Morrisey (2000), 2000 SCC 39 , 36 C.R. (5th) 85, we are instructed at para. 46 as tothe question of the constitutionality of a minimum sentence of four years provided by s. 220(

a) of the Criminal Code: "[...] I amconvinced that this legislation survives constitutional scrutiny even if the sentence pursues sentencing principles of general deterrence,denunciation and retributive justice more than the principles of rehabilitation and specific deterrence [...]" [Emphasis added] [24] More to the point of the present discussion in the context of possession of child pornography, para. 47 reads: [47] Further, this minimum sentence serves the principle of denunciation, which Lamer C.J. described in M. (C.A.), supra, at para. 81, asbeing “a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code ofvalues”.

One of the most fundamental of our basic code of values is respect for life.

Although less morally blameworthy than murder,criminal negligence causing death is still morally culpable behaviour that warrants a response by Parliament dictating that wanton orreckless disregard for the life and safety of others is simply not acceptable. [Emphasis added] ii) Denunciation emphasized by a minimal jail term: [25] Leaving aside these general comments in order to focus attention to the specific offence at Bar, it must be understood that thereach of denunciation in such prosecutions has been enhanced significantly by the imposition of a mandatory jail term of either 45 or 14days, in accordance with the election of the prosecution (it being understood that Parliament has spoken again more recently andincreased these terms quite dramatically). [26] The recent judgment in R. v.

Thurairajah, 2008 ONCA 91 discusses mandatory minimal jail periods in the following terms byJustice Doherty, at para. 26: [26] Some criminal justice systems seek to achieve justice in sentencing by the extensive use of mandatory minimum sentences coupledwith tightly calculated sentencing grids that all but dictate the sentence to be imposed by the trial judge in any given case. Historically,Canadian criminal law has taken a very different road to justice in sentencing. For the vast majority of offences, Parliament provides nominimum sentence and a broad spectrum of potential dispositions.

Trial judges are given a very wide discretion to determine theappropriate disposition in each case. In exercising that discretion, Parliament provides guidance by way of the broadly worded objectivesand principles in

Part XXIII of the Criminal Code.

Trial judges must apply those objectives and principles to the specifics of each caseand, in the exercise of their discretion, fashion a sentence that is tailored to the circumstances of the offence and the circumstances of theoffender. [Emphasis added] iii) Discretion in choosing any greater period of imprisonment to further denunciation [27] Notwithstanding the requirement of a minimum jail term, the Court is still required to exercise discretion in the allocation of anygreater period of imprisonment, in accordance with the objective of denunciation and all other sentencing objectives, principles, factorsand circumstances.

The Court in R. v. Thurairajah went on at para. 27 to underscore this “individualization of the sentencing process” bymeans of the judicial exercise of a broad discretion by trial judges, qualifying it as “the central feature of the sentencing process inCanada.” Para. 27 also refers to R. v. Proulx, 2000 SCC 5 , 30 C.R. (5th) 1 (S.C.C.), at para. 116 wherein Lamer C.J.C.described the central role of the trial judge in the sentencing process: “There is no easy test or formula that the judge can apply inweighing these factors.

Much will depend on the good judgment and wisdom of sentencing judges, whom Parliament vested withconsiderable discretion in making these determinations.” [28] All in all, denunciation will be emphasized in certain cases by means of actual imprisonment, even if the Code does not commandsuch a result. In this regard, note para. 43 of R. v. Thurairajah, 2008 ONCA 91: [43] The aggravating circumstances surrounding this offence were such that the fundamental purpose of sentencing could only beproperly served by a disposition that placed a heavy emphasis on general deterrence and particularly denunciation.

I recognize that aconditional sentence can in some circumstances adequately address these objectives, particularly where the conditions imposed have asignificant punitive element: Proulx, supra, at para. 41; R. v. Ijam, supra, 2007 ONCA 597 , [2007] O.J. No. 3395 at p. 94.However, there will be circumstances in which the demands of denunciation and/or general deterrence are so pressing that incarcerationis the only suitable disposition: Proulx, supra, at para. 106; Wells, supra, at para. 34.; R. v. Killam (1999), (ON CA),29 C.R. (5th) 147 at 151 (Ont. C.A.). [Emphasis added]

[29] Of interest, the gravity of the offender's conduct in the above-noted case resulted in the conditional sentence being set aside, anda lengthy reformatory term selected instead, which would have been served within a penitentiary but for his rehabilitative potential. iv) Exercising discretion in applying denunciation: The clash of competing objectives [30] Turning then to the central fact that there will often be a clash of principles prior to the selection of the factor or factors set out ats. 718 that will be in ascendancy in the case at Bar, the Court in R. v.

Thurairajah remarked: [28] The sometimes competing principles that must be weighed by the trial judge in the exercise of his or her sentencing discretion cangive rise to difficult problems for trial judges. This trial judge was faced with just such a problem. On the one hand, the circumstances ofthis offence cried out for a significant jail term. On the other hand, the respondent's personal circumstances strongly suggested thatincarceration was unnecessary.

The trial judge tried to balance these competing concerns by imposing a conditional sentence withpunitive terms that included partial house arrest and a curfew. [Emphasis added]

v) Sentencing as an exercise in discretion and denunciation [31] Indeed, para. 29 of R. v.

Thurairajah goes on to make plain that sentencing is a "profoundly subjective process" and the sentenceultimately imposed will reflect a multiplicity of considerations, some of which are beyond the reach of appellate review [...]" while para.30 adds the important observation: "Strong appellate deference to the sentence imposed at trial also reflects the reality that in many casesthere is no single correct sentence, but rather a range of appropriate sentences from which the trial judge must select one [...]" [32] Quite recently, para. 18 of R. v.

B. (R.), 2013 ONCA 36, reminded us of the guidance on this subject found in R. v. Hamilton (2004), (ON CA), 72 O.R. (3d) 1 (C.A.), at para. 87: “Sentencing is a very human process. Most attempts to describe theproper judicial approach to sentencing are as close to the actual process as a paint-by-numbers landscape is to the real thing.

I begin byrecognizing, as did the trial judge, that the fixing of a fit sentence is the product of the combined effects of the circumstances of thespecific offence with the unique attributes of the specific offender.” vi) Grading denunciation: The deeming clause at s. 718.01 [33] In addition to directing sentencing Courts to mark denunciation of possession of child pornography by means of a mandatoryminimal jail sentence, Parliament has directed by means of s. 718.01 of the Criminal Code that primary consideration must be given tothe objectives of denunciation and deterrence in a case in which an offender abused a person under the age of eighteen.

In other words,the injunction by our lawmakers found at s. 718.01 is mandatory. The language of s. 718.01 does evidence a strong condemnation of theill-treatment of minors who are typically far less able to defend themselves and such vulnerability must be offset by means of adenunciatory message in sentencing, all other things being equal. [34] In my view, with great respect to those who hold the contrary view, the mere fact of possessing (and of accessing) childpornography is to engage in the type of inimical conduct which s. 718.01 of the Code seeks to eliminate.

The babies, toddlers, youngchildren and adolescents whose victimization is captured forever by these images and technology are further harmed with each viewingand act of acquisition, leaving aside transmission which is not in issue in this case. vii) Denunciation: An objective and a principle of sentencing [35] As noted, denunciation is an objective in sentencing as made plain by the very terms of s. 718(

a) of the Criminal Code.Nevertheless, denunciation is also widely understood and applied as a principle of sentencing, an expression which arises at s. 718.1 ands. 718.2 of the Criminal Code. In effect, as an objective, it is synonymous with a purpose of sentencing and it is also commonlyperceived as a principle of sentencing even though this would fail in a strict sense to comply with the language of the legislation. Noanalytical difficulties arise in such circumstances. [36] By way of limited example, R. v. Wust, 2000 SCC 18 , [2000] S.C.J.

No. 19, 32 C.R. (5th) 58 guides us as to asynonymous meaning of denunciation at para. 23, in the sense of the purpose of the legislation: “[...] In deciding on the appropriatesentence, the court is directed by

Part XXIII of the Code to consider various purposes and principles of sentencing, such as denunciation,general and specific deterrence, public safety, rehabilitation, restoration, proportionality, disparity, totality and restraint, and to take intoaccount both aggravating and mitigating factors [...].” [Emphasis added] viii) Denunciation and non-custodial sanctions [37] I wish to be understood to have examined this issue by reason of the fact that I was called upon by the prosecution to decidewhether an additional period of confinement was required in addition to the mandatory jail period.

Thus, the cases examined below arerelevant, though they address chiefly the issue of the fitness of a conditional sentence of imprisonment, which was not an availablesanction in this instance, whether alone or as part of a blended sentence. [38] The case of R. v. Wells, 2000 SCC 10 , 30 C.R. (5th) 254, provides quite valuable guidance on the question of achievingthe objective of denunciation in the context of non-custodial sanctions. A first passage of interest is found at para. 25: [25]

Section 718.2(

e) of the Criminal Code provides that all available sanctions other than imprisonment that are reasonable in thecircumstances should be considered, with particular attention to the circumstances of aboriginal offenders. As a general matter, thisappeal raises the issue of whether a non-custodial sentence is reasonable, to use the language of s. 718.2(e), in circumstances where theparamount sentencing objectives are denunciation and deterrence. More specifically, this appeal must determine whether the trial judgeproperly applied s. 718.2(

e) when sentencing the appellant. [Emphasis added] [39] The Court concluded, at para. 35: [35] Therefore, depending on the severity of the conditions imposed, a conditional sentence may be reasonable in circumstances where

deterrence and denunciation are paramount considerations. Ultimately, however, the determination of the availability of a conditionalsentence depends upon the sentencing judge's assessment of the specific circumstances of the case, including a consideration of theaggravating factors, the nature of the offence, the community context, and the availability of conditions which have the capacity toproperly reflect society's condemnation.” [Emphasis added] [40] In reaching that conclusion, the Supreme Court of Canada earlier commented at para. 26 of R. v.

Wells on the interplay asbetween denunciation and non-custodial sanctions. In fact, the paragraph records: "[...] given that a conditional sentence is possiblewhere the sentencing objectives are denunciation and deterrence [...]" [41] Thereafter, the Court quoted extensively at para. 31 from Chief Justice Lamer's judgment in R. v.

Proulx, 2000 SCC 5 ,30 C.R. (5th) 1 (S.C.C.), to support the view that "[...] a conditional sentence can achieve both punitive and restorative objectives [...]”and pursued this analysis at para. 32 by noting “[...] Lamer C.J. indicated that the objectives of deterrence and denunciation could bewell served with a conditional sentence. Indeed, he noted that certain conditions can create more onerous circumstances than thoseassociated with incarceration (at para. 105).” [42] Further, the Court in R. v.

Wells, per Iacobucci J., added at para. 33: [33] The amount of denunciation and deterrence provided by a conditional sentence varies depending on the nature of the conditionsimposed and the duration of the sentence. Since the imposition of any sentence is determined on an individual basis, each conditionalsentence needs to be crafted with attention to the particular circumstances of the offence, offender, and the community in which theoffence took place (see M. (C.A.), supra, per Lamer C.J., at para. 92).

Consequently, conditions will vary according to these factors withit being generally true that "the more serious the offence and the greater the need for denunciation, the longer and more onerous theconditional sentence should be" (Proulx, at para. 106). [Emphasis added] [43] Of final interest for present purposes is the reference to para. 106 and following of Chief Justice Lamer's reasons in R. v.

Proulx,which follows as consigned at para. 34: [34] Nevertheless, Lamer C.J. pointed out that “there may be certain circumstances in which the need for denunciation [or deterrence] isso pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct”(Proulx, at para. 106). He further stated (at paras. 114 and 116): This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence.

Conversely, a conditionalsentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of diminished importance,depending on the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender andthe community in which the conditional sentence is to be served. [Emphasis added] ix) Denunciation and s. 718.2(e) [44] The interplay as between the objective of denunciation and s. 718.2(

e) of the Criminal Code must also be considered in selectinga fit and proper sanction. Although Mr. Foley is not a member of the First Nations, the principle of restraint on the resort to imprisonmentis found in that disposition, and reinforces the same principle of restraint found in s. 718.2(d). [45] In this respect, I note para. 40 and para. 42 of R. v. Wells as they discuss in general terms the need for sentence severity in directproportion to the severity of the harm occasioned to the victim and to the community.

As will be seen, in certain instances but not all, anindividualized approach will not be barred by means of this analytical approach. [42] Notwithstanding what may well be different approaches to sentencing as between aboriginal and non-aboriginal conceptions ofsentencing, it is reasonable to assume that for some aboriginal offenders, and depending upon the nature of the offence, the goals ofdenunciation and deterrence are fundamentally relevant to the offender's community.

As held in Gladue, (SCC), [1999]1 S.C.R. 688 at para. 79, to the extent that generalizations may be made, the more violent and serious the offence, the more likely as apractical matter that the appropriate sentence will not differ as between aboriginal and non-aboriginal offenders, given that in thesecircumstances, the goals of denunciation and deterrence are accorded increasing significance. [Emphasis added] [46] Ultimately, para. 44 reinforced this instruction in these words: [44] Let me emphasize that s. 718.2(

e) requires a different methodology for assessing a fit sentence for an aboriginal offender; it does notmandate, necessarily, a different result.

Section 718.2(

e) does not alter the fundamental duty of the sentencing judge to impose a sentencethat is fit for the offence and the offender, and this instruction applies, of course, to non-Aboriginal offenders as well. Furthermore, inGladue, as mentioned, the Court stressed that the application of s. 718.2(

e) does not mean that aboriginal offenders must always besentenced in a manner which gives greatest weight to the principles of restorative justice and less weight to goals such as deterrence,denunciation, and separation (at para. 78). As a result, it will generally be the case, as a practical matter, that particularly violent andserious offences will result in imprisonment for aboriginal offenders as often as for non-aboriginal offenders (Gladue, at para. 33).[Emphasis added] [47] R. v.

Fice, 2005 SCC 32 , 28 C.R. (6th) 201 (S.C.C.) is also of assistance in pursuing this analysis touching upon theneed for severity in corresponding degrees to the harm or violence associated with an offence, and thus of the potential for denunciationto be applied even without a jail sentence.

x) Denouncing child pornography: A

summary [48] Based on the foregoing, the denunciation of child pornography offences may be viewed as an attempt to prevent degrading andexploitative conduct which not only harms children but defiles the goals of a “just, peaceful and safe society”. A first example,unfortunately one of far too many such prosecutions, is taken from R. v. E.O., (ON CA), [2003] O.J. No. 563, 169O.A.C. 110 (C.A.). The Court of Appeal upheld the 18-month term, together with a concurrent jail term of six months for breach of

probation, followed by three years' probation. In so doing, it advanced the comments that are set out below, at para. 7: [7] Possession of child pornography is a crime of enormous gravity, both for the affected victims and for society as a whole. For thatreason, the courts have repeatedly recognized that the most important sentencing principles in cases involving child pornography aregeneral deterrence and denunciation.

Further, the offence of possession of child pornography requires the imposition of sentences whichdenounce the morally reprehensible nature of the crime, deters others from the commission of the offence, and reflects the gravity of theoffence: see R. v. Sharpe, [ 2001 SCC 2 , [2001] S.C.J. No. 3], 150 C.C.C. (3d) 321 (SCC) and R. v. Stroempl [ (ON CA), [1995] O.J. No. 2772], 105 C.C.C. (3d) 187 (Ont. C.A.). In this case [...] the record of the appellant disclosed actualabuse of children.

His accumulation of violent pornographic material involving young children, and the timing of his access to suchmaterial, support the trial judge's conclusion that the appellant poses a danger to the community ... [Emphasis supplied] [49] At para. 12, the Court remarked that the record of actual violence towards children included sexual violence towards a daughterand a boy, both under 5, who were forced to fellate him and a later conviction for abducting his 9-year old niece. [50] R. v. Kim, (ON CA), [2004] O.J.

No. 119 (C.A.) is also apposite as it provides additional guidance on thesentencing principles to be applied in the case of possession of child pornography and distribution of child pornography. The offenderpleaded guilty to both offences, and admitted to having distributed pornographic material in exchange for more pornographic material,basically on a two-for-one' exchange: he had over 12,000 images on his server and received between 5,600 and 6,400 images over aneight-day period while sending out 2,800 to 3,200 images.

The Court of Appeal remarked as follows at para. 2: [2] The imposition of a non-custodial sentence in this case does not address the gravity of the offence or the need for denunciation anddeterrence. The decision in R. v. Sharpe (2001), 2001 SCC 2 , 150 C.C.C. (3d) 321 (SCC) explicitly recognized the linkbetween the possession and distribution of child pornography and the harm occasioned by the sexual abuse and exploitation of children.The Supreme Court accepted that child pornography may fuel cognitive distortions normalizing this harmful conduct.

The overwhelmingamount of child pornography seized, the ages of the children involved, the nature of the acts in which they were involved and therespondent's interest in the material, distinguish this case from R. v. Cohen and R. v. Weber where conditional sentences were imposed.In R. v. Lisk, (ON CA), [1998] O.J.

No. 1456, this court stated, We agree that the principles of deterrence anddenunciation could only be adequately reflected in a sentence involving incarceration.' As in Lisk, this offender distributed pornographicmaterial in exchange for more pornographic material ... [Emphasis supplied] [51] Thus, despite the fact that the respondent was a youthful first offender with no prior record, this was an inappropriate case for aconditional sentence. It called instead for a substantial reformatory sentence.

However, in view of the fact that the offender has alreadyserved seven and a half months of his conditional sentence and that he has, with some difficulty, only recently obtained an appointmentfor counselling at a psychiatric facility, the Court was reluctant to interfere and impose a period of incarceration at this stage, anddismissed the Crown's otherwise meritorious sentence appeal. Refer to para. 3. Noteworthy as well is the case of R. v. Lea, [2005] O.J.No. 2665 (C.A.).

The Court of Appeal upheld a jail term in the case of possession of a large quantity of child pornography, seeminglyapproving the emphasis placed by the trial judge on the principles of denunciation and deterrence, notwithstanding the guilty plea, theoffender's remorse and the risk that incarceration could be counter-productive from the perspective of rehabilitation. [52] Notwithstanding the foregoing, it must not be assumed that the reach of denunciation is inconsistent with a sentence other thanone of lengthy imprisonment. As demonstrated in the case of R. v. Cohen, (ON CA), [2001] O.J.

No. 1606, 144O.A.C. 340 (C.A.) [referred to earlier in R. v. Kim, (ON CA), [2004] O.J. No. 119 (C.A.) at para. 2] involving anoffender convicted of several counts of distribution and possession of child pornography, the Court observed at para. 15: “We share theconcerns expressed by the trial judge about the need for a sentence that clearly denounces the distribution of child pornography anddeters those who might be tempted to engage in its dissemination.

However, meeting those concerns should not exclude consideration ofother relevant sentencing factors.” It found the sentence excessive and intervened in light of the intervening guidance from R. v.

Proulx,2000 SCC 5 , [2000] 1 S.C.R. 61, to the effect that “conditional sentences are punitive sanctions capable of achieving theobjectives of denunciation and deterrence and that they may be considered even where a sentence meeting those objectives is required.”Refer to para. 16. [53] Further guidance on the application of the objective of denunciation in selecting the range of sentencing for distribution of childpornography and possession of child pornography (prior to the recent legislative changes) is found in R. v. Weber, (ON CA), [2003] O.J. No. 3306 (C.A.). The Court of Appeal emphasized that both Mr.

Weber and Mr. Cohen "... engaged in despicableactivity. Because they operated through the Internet, the scope for the dissemination of the pornographic material was unbounded once itwas sent out to one person ..." Refer to para. 16. In the final analysis, the Court of Appeal's guidance may be summarized by quotingpara. 18: “As this court stated in Cohen, the offences of possession and dissemination of child pornography are very serious and require asentence which clearly denunciates the conduct and deters others.

As the court also stated in that case, a conditional sentence with stricthouse arrest conditions can adequately serve the objectives of general deterrence and denunciation and is appropriate for certainoffenders.” [Emphasis supplied] [54] I pause to note that the more contemporary case law serves to underline that certain of these favourable comments are less apt inlight of the changes to the legislation, but I do wish to be understood to find that all sentencing principles continue to be apposite,including rehabilitation. [55] In the final analysis, and seeking to be as precise as possible, denunciation is not limited to a prospective function in sentencing asis served by the objective of deterrence which will be reviewed next, but serves a contemporary purpose of heightening our respect forthe laws and institutions of our country, in an abstract sense, and of respect for the personal autonomy and integrity of all those whoshare our “just, peaceful and safe society” in a concrete sense.

It is seeking to foster an expressive purpose, a communicative value thatreinforces our basic socialization and education about respect for others.

c) Deterrence at clause 718(

b) of the Code and child pornography: [56] Deterrence is given legislative expression at clause (

b) of s. 718 of the Criminal Code, and it is found immediately after clause

(

a) addressing denunciation. Nevertheless, it will be of assistance to begin with a reference to the pre-1996 case law. R. v. Lyons, 61C.R. (3rd) 1, includes these observations at para. 26: [26] [...] The imposition of a sentence which “is partly punitive but is mainly imposed for the protection of the public” (Re Moore andthe Queen (1984), (ON SC), 10 C.C.C. (3d) 306 (Ont. H.C.)) seems to me to accord with the fundamental purpose ofthe criminal law generally, and of sentencing in particular, namely, the protection of society.

In a rational system of sentencing, therespective importance of prevention, deterrence, retribution and rehabilitation will vary according to the nature of the crime and thecircumstances of the offender. No one would suggest that any of these functional considerations should be excluded from the legitimatepurview of legislative or judicial decisions regarding sentencing. [Emphasis added]

i) Deterrence and denunciation: How to distinguish [57] The case law indicates that the objectives of deterrence and denunciation go hand in glove as they both seek to further the primesentencing objective of ensuring the safety of the community. As noted, denunciation is not limited to a prospective function but serves acontemporary purpose of heightening our respect for the laws and institutions of our country, in an abstract sense, and of respect for thepersonal autonomy and integrity of all those who share our “just, peaceful and safe society”.

It is seeking to foster an expressive purpose,a communicative value that reinforces our basic socialization and education about respect for others. On the other hand, deterrenceaddresses quite concrete (and at times controversial) issues of convincing an offender to desist from further offending while discouragingsuch unlawful conduct in others. In effect, is often thought that they express both sides of a coin minted to ensure the collective safety ofthe community. The case of R. v. L.D., [2002] O.J.

No. 4695 (C.A.) illustrates quite well the dynamics at play that tend to ally the twoobjectives but as well, it assists in showing how to distinguish them. [58] For present purposes, the important fact is that I have instructed myself not to select a sentence which is more severe by reasononly that I have added aggravating weight to both the objectives of denunciation and deterrence without being mindful of the totalityprinciple and the over-lapping of these closely related aims. R. v.

Woodward, 2011 ONCA 610, advances guidance on this element ofsentencing as follows: “[48] I cannot be certain from reading the trial judge’s reasons that she did not use the appellant’s efforts atgrooming the complainant to increase his punishment on both the luring offence and the sexual assault offence. Assuming she didengage in impermissible double counting, I consider the error to be harmless in the circumstances. At most, it would have warranted aslight reduction in sentence on either the luring count or the sexual assault count.

Overall, as I shall explain, the global sentence of six-and-one-half years was within the appropriate sentencing range and I would not disturb it.” [Emphasis added] ii) Specific and general deterrence [59] It will be of assistance to define what is meant by deterrence and, of equal importance, what is not embraced by that expression.Deterrence, as crafted by Parliament at s. 718(

b) of the Criminal Code, is an objective of sentencing which has two components,described as “purposes” by the draughtsperson of the marginal note and as an “objective” by the legislators who approved of the text: individual or specific deterrence; and general or collective deterrence. [60] Stated otherwise, sentencing courts are directed and charged by Parliament to select fit and proper sentences having the dualobjective of discouraging further and future wrongdoing by both the offender and by others who might emulate such anti-socialbehaviour. In this sense, s. 718(

b) of the Criminal Code directs the selection of what might best be described as forward-lookingsanctions. After all, nothing can be done to prevent the commission of the offence that has already taken place and, moreover, the fact ofan offence having been committed speaks to the relative failure of prior sentences to deter generally and in respect to the preciseoffender.

Nevertheless, I suggest that the objective of deterrence does address the functional goal of preventing further wrongdoing inthe case of a specific individual, while furthering the utilitarian goal of discouraging further offending amongst the offender's peers, theso-called group of those would-be individuals wishing to emulate the anti-social behaviour in question. [61] It goes without saying that these concerns are quite pressing in the case of possession of child pornography. iii) Deterrence as punishment to discourage unlawful acts [62] The first quotation is selected from para. 107 of R. v.

Proulx, 30 C.R. (5th) (S.C.C.) and serves to highlight the traditional view ofthe Courts that the unpleasant aspects of sentencing are visited upon the offender to discourage further offending. Note the repeatedreferences to punishment in its various manifestations. [107] Incarceration, which is ordinarily a harsher sanction, may provide more deterrence than a conditional sentence. Judges should bewary, however, of placing too much weight on deterrence when choosing between a conditional sentence and incarceration: seeWismayer, supra, at p. 36.

The empirical evidence suggests that the deterrent effect of incarceration is uncertain: see generallySentencing Reform: A Canadian Approach, supra, at pp. 136-37. Moreover, a conditional sentence can provide significant deterrence ifsufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences.

There is also the possibilityof deterrence through the use of community service orders, including those in which the offender may be obliged to speak to members ofthe community about the evils of the particular criminal conduct in which he or she engaged, assuming the offender were amenable tosuch a condition. Nevertheless, there may be circumstances in which the need for deterrence will warrant incarceration.

This will dependin part on whether the offence is one in which the effects of incarceration are likely to have a real deterrent effect, as well as on thecircumstances of the community in which the offences were committed. [Emphasis added] [63] In short, deterrence is viewed first and foremost as an objective which serves to protect the community by inflicting punishmentupon offenders with a view to making them wish to avoid further punishment by desisting from the unlawful conduct that resulted in thepunishment and, by parity of reasoning, by discouraging others who might be tempted to offend by the fear of being similarly punished. [64] Perhaps the best judicial expression of the meaning to be assigned to deterrence is found in the judgment of Justice Charron in R.

v. B.W.P.; R. v. B.V.N. (2006), 2006 SCC 27 , 38 C.R. (6th) 1 (S.C.C.). By reason of the remarkable concision with whichJustice Charron reviewed the nature of deterrence, albeit in a different statutory context as the issue involved the Youth Criminal JusticeAct, S.C. 2002, c. 1, I have elected to reproduce her instruction from para. 2 at length. [2] Deterrence, as a principle of sentencing, refers to the imposition of a sanction for the purpose of discouraging the offender and othersfrom engaging in criminal conduct.

When deterrence is aimed at the offender before the court, it is called specific deterrence', whendirected at others, general deterrence'. The focus of these appeals is on the latter.

General deterrence is intended to work in this way:potential criminals will not engage in criminal activity because of the example provided by the punishment imposed on the offender.[Emphasis added] iv) Deterrence results in "extra" punishment [65] Thus, the definition of the objective of deterrence embraces an inherent element of punishment which serves to further theinstrumental goal of discouraging the offender from further unlawful conduct. In addition, it is obvious that in many instances, the Courtwill impose punishment that is greater than what is strictly required in order to discourage the offender.

On the one hand, it is well-nighimpossible to judge such matters accurately given the dynamics of human behaviour and the limitations touching upon our ability toassess fully the unknown elements such as the offender's internal thought process and motivations. On the other, it is an inherentrequirement that additional punishment be visited upon the offender if a general discouragement of unlawful conduct is to be achieved. [66] As noted by Justice Charron in R. v. B.W.P.; R. v.

B.V.N. at para. 2, “[...] When general deterrence is factored in thedetermination of the sentence, the offender is punished more severely, not because he or she deserves it, but because the court decides tosend a message to others who may be inclined to engage in similar criminal activity.” Of course, any such additional sanction mustrespect the fundamental sentencing principle of proportionality which is enshrined at s. 718.1 of the Criminal Code.

v) Does deterrence produce worthwhile results? [67] It is noteworthy that in attempting to define deterrence, Justice Charron went on in R. v. B.W.P.; R. v. B.V.N. to comment on thecontroversial nature of this objective.

The passage which follows captures the essence of this debate, and is found at para. 3 of thejudgment: [3] While general deterrence as a goal of sentencing is generally well understood, there is much controversy on whether it works or not.Those who advocate its abolition as a sentencing principle, particularly in respect of youth, emphatically state that there is no evidencethat it actually works in preventing crime.

Those who advocate its retention are equally firm in their position and, in support, point tosociety's reliance on some form of general deterrence to guide young people in making responsible choices on various matters, forexample, about smoking, using alcohol and drugs and driving a motor vehicle.

The question whether general deterrence works or not isnot the issue before this Court [...] [68] In light of the importance of the subject matter being the purported ineffectiveness of deterrence, it will be of signal assistance toreproduce at length the valuable contributions of Justice Rosenberg that were approved of without qualifications in R. v. Proulx. Thus,the following passages are taken from R. v.

Wismayer (1997), (ON CA), 5 C.R. (5th) 248 (C.A.), at para. 49: [49] In my view, the enactment of the conditional sentence regime represents a concession to the view that the general deterrent effect ofincarceration has been and continues to be somewhat speculative and that there are other ways to give effect to the objective of generaldeterrence. The Report of the Canadian Sentencing Commission (1987) (the Archambault Report) summarized the state of understandingof general deterrence. The Commission's first three conclusions, at pp. 136-37 were as follows: [Emphasis added]

a) Even if there seems to be little empirical foundation to the deterrent efficacy of legal sanctions, the assertion that the presence of somelevel of legal sanctions has no deterrent effects whatsoever, has no justification. The weight of the evidence and the exercise of commonsense favour the assertion that, taken together, legal sanctions have an overall deterrent effect which is difficult to evaluate precisely.

b) The proper level at which to express strong reservations about the deterrent efficacy of legal sanctions is in their usage to produceparticular effects with regard to a specific offence. For instance, in a recent report on impaired driving published by the Department ofJustice, Donelson asserts that “law-based, punitive measures alone cannot produce large, sustained reductions in the magnitude of theproblem” (Donelson, 1985; 221-222). Similarly, it is extremely doubtful that an exemplary sentence imposed in a particular case canhave any perceptible effect in deterring potential offenders.

c) The old principle that it is more the certainty than the severity of punishment which is likely to produce a deterrent effect has not beeninvalidated by empirical research.

In his extensive review of studies on deterrence, Beyleveld (1980; 306) concluded that “recordedoffence rates do not vary inversely with the severity of penalties (usually measured by the length of imprisonment)" and that "inverserelations between crime and severity (when found) are usually smaller than inverse crime-certainty relations”. [69] Of note, Justice Rosenberg took pains to add at para. 50 further guidance to the effect that “This is not to doubt the theory ofgeneral deterrence, or its application to the manner of service of the sentence of imprisonment.

Requiring some offenders to serve thesentence in a correctional facility as opposed to the community can reasonably be expected to deter some persons from offending: see R.v. Shropshire, supra, [1994] 4 S.C.R. 222 at p. 202.” His Lordship further observed, however, that the remarks consigned above “[...]suggest that general deterrence is not a sufficient justification for refusing to impose a conditional sentence.

In view of its extremelynegative collateral effects, incarceration should be used with great restraint where the justification is general deterrence.” Further usefulreferences are found at para. 50. [70] I will reproduce as well the following observations, consigned at para. 52, as they provide a powerful statement of the need tomatch the objective of deterrence with the likely responsiveness of the community at large to the message of dissuasion: [52] General deterrence, as the principal objective animating the refusal to impose a conditional sentence, should be reserved for thoseoffences that are likely to be affected by a general deterrent effect.

Large-scale, well-planned fraud by persons in positions of trust, such

as the accused in R. v. Pierce, (ON CA), [1997] O.J. No. 715, would seem to be one of those offences. Even then,however, I would not want to lay down as a rule that a conditional sentence is never or even rarely available. Each case will have to bedetermined on its own merits. As Donnelly J. noted in R. v. G. (K.R.), a judgment of the Ontario Court (General Division), deliveredOctober 18, 1996, [1996] O.J. No. 3867 at para. 30, general deterrence may be achieved in a variety of ways: [30] The stigma of trial and conviction is a major deterrent.

A conditional order must be, and must be seen to be, more onerous thansuspended sentence by way of probation. To achieve goals of denunciation and general deterrence, the punishment must be meaningfulby being visible, sufficiently restrictive, enforceable and capable of attracting stern sanction for failure to comply with the conditions.[Emphasis added] [71] The quite instructive judgment of the Court of Appeal for Ontario in R. v. C.N.H., (ON CA), [2002] O.J. No.4918 (C.A.) is also apposite.

The Court, under the pen of Justice Rosenberg, first drew attention to the views of the trial judge accordingto which the reach of general deterrence had been blunted somewhat in recent years. Thereafter, the Court remarked at para. 35: “I agreewith the trial judge that general deterrence as the animating objective of any offence must be approached with caution.” [Emphasisadded] Reference was then made to R. v. Biancofiore, (ON CA), [1997] O.J.

No. 3865, 119 C.C.C. (3d) 344 (Ont.C.A.) at 356: “The general deterrent effect of incarceration is somewhat speculative and I adhere to the view I expressed in R. v.Wismayer, supra, at p. 36 that incarceration should be used with great restraint where the justification is general deterrence. There are,however, offences that are more likely to be influenced by a general deterrent effect.” [72] Not surprisingly, importation of large quantities of cocaine was identified as one such offence.

See para. 36. [73] I note as well the recent scholarship on the issue of the utility of specific deterrence found in Vol. 36(3), June 2012, at pages 159-172 of the Criminal Law Journal: “The capacity of criminal sanctions to shape the behaviour of offenders: Specific deterrence doesn’twork, rehabilitation might, and the implications for sentencing”, by Mirko Bagaric and Theo Alexander.

Nonetheless, I am bound toapply the law as set down by Parliament and the appellate courts. [74] Hence, I entertain no doubt that general deterrence represents an objective which may be met in the case of the possession ofchild pornography for no other reason than the fact that these accusations attract great publicity. vi) Deterrence and proportionality [75] As is well known, proportionality is the fundamental principle in sentencing, as made plain at s. 718.1 of the Criminal Code.Para. 43 of R. v.

Rogers consigns these observations as to the interplay as between proportionality and deterrence: [43] Increasing the length of a sentence for specific deterrence without regard to whether it is proportionate to the gravity of the offenceand the degree of responsibility of the offender is an error of law.

The proportionality principle may be informed by the requirement thatsentences be similar, in that the sentences in prior similar cases provide a gauge as to the view of various courts concerning the gravity ofa particular offence and the degree of responsibility calling for sanction in particular circumstances. [Emphasis added] vii) Deterrence and individualization of sentences [76] R. v.

Wells discussed this element in the sentencing alchemy at para. 40 in particular. [40] However, the scope of s. 718.2(e), as it applies to all offenders, restricts the adoption of alternatives to incarceration to thosesanctions that are "reasonable in the circumstances". Again, as was expressly stated in Gladue, the Court in no way intended to suggestthat as a general rule, the greatest weight is to be given to principles of restorative justice, and less weight accorded to goals such asdenunciation and deterrence.

Indeed, such a general rule would contradict the individual or case-by-case nature of the sentencingprocess, which proceeds on the basis of inquiring whether, given the particular facts of the offence, the offender, the victim and thecommunity, the sentence is fit in the circumstances. [Emphasis added] [77] In the course of R. v. Berry, 2012 ONCA 621, an endorsement signed by Doherty, Hoy and Pepall J.A., we read: “[4] We do notagree that the trial judge erred in imposing a sentence beyond the settled range. Ranges exist to promote parity. Parity is premised ontreating ‘like’ offenders in a comparable manner.

To the extent that the circumstances distinguish an offender, be they mitigating oraggravating from the typical offence, ranges will have less significance. Sentencing is an individualized process. The appellant’sextensive and related criminal record and the total absence of anything by way of mitigation drove this sentence somewhat beyond theusual range. We cannot say that the sentence is manifestly unreasonable.” [78] The majority opinion in R. v.

Brooks, 2012 ONCA 703, provides signal assistance on the question of the individualization ofsentences. [12] The trial judge also considered the serious nature of the offence, the limited connection the appellant had to his Aboriginal heritage,and the absence of any connection between the offence and the Aboriginal community. He considered these factors not to exclude anyconsideration of s. 718.2(e), but rather to determine what effect that

section would have in the specific circumstances of this case. Aspointed out in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 68-73, sentencing of all offenders, including Aboriginaloffenders, is an individualized process.

Section 718.2(

e) must be addressed in all cases involving Aboriginal offenders. That is not to say,however, that the circumstances relevant to s. 718.2(

e) do not have to have some connection to the offence and/or the offender beforethey will impact on the sentence. As explained in Ipeelee, at para. 83: viii) Deterrence and s. 718.2(

e) of the Criminal Code [79] In this respect, the most helpful case with which to begin our review is R. v. Wells, at para. 40, quoted in the precedingparagraph. Further, para. 42 insists on the need for sentence severity in direct proportion to the severity of the harm occasioned to thevictim and to the community.

[80] Ultimately, para. 44 reinforced this instruction in these words: [44] Let me emphasize that s. 718.2(

e) requires a different methodology for assessing a fit sentence for an aboriginal offender; it does notmandate, necessarily, a different result.

Section 718.2(

e) does not alter the fundamental duty of the sentencing judge to impose a sentencethat is fit for the offence and the offender. Furthermore, in Gladue, as mentioned the Court stressed that the application of s. 718.2(e)does not mean that aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorativejustice and less weight to goals such as deterrence, denunciation, and separation (at para. 78).

As a result, it will generally be the case, asa practical matter, that particularly violent and serious offences will result in imprisonment for aboriginal offenders as often as for non-aboriginal offenders (Gladue, at para. 33).

Accordingly, I conclude that it was open to the trial judge to give primacy to the principles ofdenunciation and deterrence in this case on the basis that the crime involved was a serious one. [Emphasis added] ix) Deterrence may not be achieved without actual imprisonment in certain prosecutions: [81] In this regard, I refer to para. 106 and following of Chief Justice Lamer's reasons in R. v. Proulx, which follows as consigned atpara. 34 of R. v.

Wells: [34] Nevertheless, Lamer C.J. pointed out that "there may be certain circumstances in which the need for denunciation [or deterrence] isso pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct" (Proulx,at para. 106). He further stated (at paras. 114 and 116): This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence.

Conversely, a conditionalsentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of diminished importance,depending on the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender andthe community in which the conditional sentence is to be served. [Emphasis added] [82] And, as noted throughout, deterrence serves an overall salutary purpose to protect future victims from future offending. Thisobjective is discussed in particular in the case of R. v. Camuso, [2004] O.J. No. 4606 (Sup.

Ct.). [83] I am of the view that the successful application of the objective of deterrence, from the perspective of the generaldiscouragement of such odious conduct as possession of child pornography, requires the assignment of a period of imprisonment greaterthan the minimum period provided by Parliament in this instance notwithstanding the many mitigating features. With respect toindividual deterrence, it is not necessary that any period of imprisonment greater than the minimum period of 45 days be selected to deterMr. Foley in light of his guilty plea and overall acceptance of responsibility.

The period of detention selected reflects the need toemphasize the objectives of denunciation and deterrence and to respect s. 718.01 of the Criminal Code.

d) The objective of separating offenders from society, where necessary: Clause 718(c) [84] As is well understood separation of offenders from society typically occurs as a result of a jail sentence. Nevertheless, I note thatParliament in crafting the language of this legislative provision did not choose the verb to imprison' or a similar word. Instead, Parliamentelected to include the far more neutral expression to separate' offenders.

Hence, separation not only must not occur unless it is necessary,it should not be understood to be achieved only through the vehicle of imprisonment. [85] Of course, in this instance, the offender Mr. Foley must be detained but this clause continues to apply as the objective of the"further" or "enhanced" separation above the minimal period may only occur "if necessary".

i) Separation and the general principle of restraint [86] Without assigning too much ink to the subject, it may be said that the objective of separating offenders from society wherenecessary without actual imprisonment is not inconsistent with the general restraint in sentencing and in the recourse to jail. Consider theguidance advanced by Chief Justice Lamer for the unanimous Supreme Court of Canada in R. v.

Proulx (2000), 2000 SCC 5 , 30 C.R. (5th) 1 (S.C.C.), at para. 1: "By passing the Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof,S.C. 1995, c. 22 ("Bill C-41"), Parliament has sent a clear message to all Canadian judges that too many people are being sent to prison.In an attempt to remedy the problem of over-incarceration, Parliament has introduced a new form of sentence, the para77conditionalsentence of imprisonment." ii) Jail is often necessary [87] Indeed, R. v.

M. (R.T.), 2008 ONCA 47, provides the following instruction in this respect: [1] The respondent was convicted on charges of sexual exploitation, sexual interference, indecent act, gross indecency, sexual assault,and failure to comply with an undertaking. Following a preliminary inquiry, he pled guilty and was sentenced to two years imprisonmenthaving regard to time served of 7.5 months for which he was given one year credit. In addition, the sentencing judge ordered three yearsprobation.

The Crown is appealing this sentence. [2] In our opinion, the sentencing judge failed to appreciate the seriousness of the offences and the appropriate range of sentence forthem. When the sentencing judge said, that in relation to the range of sentence suggested by the Crown, a "sentence of five to sevenyears in the penitentiary is overreaching a lot" for this type of offender and these offences, he was simply wrong.

Moreover, even for afirst-time offender convicted of this type of offence taking place over a large number of years, the sentencing principles to be accordedthe greatest weight are deterrence, denunciation and the separation of the offender from society: R. v. D. (D.), (ONCA), [2002] O.J. No. 1061, 163 C.C.C. (3d) 471, 58 O.R. (3d) 788, 157 O.A.C. 323 (C.A.) at paras. 34-35. [88] In effect, the Court of Appeal for Ontario made plain that s. 718(

c) of the Criminal Code operates together with the earlier notedobjectives of denunciation and deterrence in order to punish, where apt, offenders as this will denounce the anti-social behaviour, deterthis offender and others who might be like-minded and protect the community as a whole be removing the offender from a position of

further violent behaviour, at least as it touches upon vulnerable children. [89] The codified objective of separating offenders from society, where necessary, is an expression of Parliament's will thatimprisonment must be resorted to if required in the interests of protecting the community.

A review of the text of the legislative schemeintroduced in September of 1996, as a whole, makes plain that Parliament did not consider it necessary that imprisonment be resorted toin all cases as the concurrent introduction of the conditional sentence of imprisonment makes it obvious that the legislators did notenvisage that offenders would be totally separated from society unless this action was necessary, leaving aside cases of minimum jailsentences.

e) Clause (

d) of s. 718 of the Criminal Code: Assisting in the rehabilitation of offenders in order to protect society [90] In light of the presence of a minimum period of imprisonment, this clause has limited scope in this prosecution.

Not unlike what Inoted in the case of the separation of offender clause, the strong rehabilitative elements in this case, notably the guilty plea and theacceptance of responsibility, and the lack of a clear indication of any undue or evident risk of recidivism, leads me to conclude thatrehabilitation is an obvious objective to be pursued in this case, and that it serves to temper the reach of the punitive objectives ofdenunciation and deterrence.

Stated otherwise, but for the strong prospects of rehabilitation, the sentence would have been greater tofoster the objective of individual deterrence. [91] In reaching this conclusion, I have found that my review of the authorities demonstrates that rehabilitation will tend to dominatethe sentencing calculus in any instance in which the immediate need for the promotion of the safety of the community by separating theoffender as a result of the application of the principles of denunciation and deterrence does not trump the long-term requirements of thecommunity's safety as best ensured by the rehabilitation of an individual who is capable of being reformed and returned to take aproductive place within society notwithstanding prior offending conduct.

Typically, leniency to enable rehabilitation to be achieved isdisplaced in cases in which the gravity of the criminal conduct calls for imprisonment. Given the reality of a minimum jail sentence,however, and the need to respect s. 718.01, a jail sentence is required but it has been crafted to promote rehabilitation. In the same vein,as will be seen, the objective of restorative justice has been given less importance in order to permit the offender to pursue hisrehabilitation by focusing on treatment and counselling.

f) Clause (

e) of s. 718 of the Criminal Code: The objective of reparation for harm done to victims or to the community [92] This objective is not relevant to this sentence in the absence of any known victim. That being said, there are hundreds of victimsin this case, but Mr. Foley cannot assist any of them, or advance an apology, in the circumstances.

g) Clause (

f) of s. 718 of the Criminal Code: The Objective of Promoting a Sense of Responsibility in Offenders and ofAcknowledgement of Harm [93] S. 718(

f) of the Criminal Code reads: "to promote a sense of responsibility in offenders, and acknowledgment of the harm done tovictims and to the community". [94] Thus, the sentencing Court must seek to:

a) promote a sense of responsibility for offenders with respect to the harm visited upon the victim(

s) and the community, and

b) promote the acknowledgement and recognition by offenders of that harm, as it touches the precise victim(

s) and the community whichhas been victimized. [95] Typically, it is considered consonant with the classification of the animating principles of sentencing to group this objective withthe other "restorative" or attenuating objectives of rehabilitation and reparation, in opposition to the so-called "punitive" ones ofdenunciation, deterrence and separation. Hence, it will be instructive to refer to para. 24 of R. v. Folino, (ON CA),[2005] O.J.

No. 4737, 77 O.R. (3d) 641, 203 O.A.C. 258, 202 C.C.C. (3d) 353 (C.A.): "In my view, in the circumstances of thisparticular offender, the sentencing judge overemphasized the punitive sentencing objectives of denunciation and deterrence and failed toconsider the restorative objectives of rehabilitation, reparations and promotion of a sense of responsibility [...]" [Emphasis added]

i) Clause 718(

f) as interpreted by Chief Justice Lamer in R. v. Proulx: [96] In R. v. Proulx, the Supreme Court of Canada first addressed the meaning to be given to this

section at paras. 18 to 20 in thecourse of discussing the expansion of the use of restorative justice principles in sentencing. [97] In addition, para. 19 is also apposite: [19] Canadian sentencing jurisprudence has traditionally focussed on the aims of denunciation, deterrence, separation, and rehabilitation,with rehabilitation a relative late-comer to the sentencing analysis: see Gladue, at para. 42. With the introduction of Bill C-41, however,Parliament has placed new emphasis upon the goals of restorative justice.

Section 718 sets out the fundamental purpose of sentencing, aswell as the various sentencing objectives that should be vindicated when sanctions are imposed. In Gladue, supra, Cory and Iacobucci JJ.stated (at para. 43): [43] Clearly, s. 718 is, in part, a restatement of the basic sentencing aims, which are listed in paras. (

a) through (d). What are new,though, are paras. (

e) and (f), which along with para. (

d) focus upon the restorative goals of repairing the harms suffered by individualvictims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part ofthe offender, and attempting to rehabilitate or heal the offender. The concept of restorative justice which underpins paras. (d), (e), and (f)is briefly discussed below, but as a general matter restorative justice involves some form of restitution and reintegration into thecommunity. The need for offenders to take responsibility for their actions is central to the sentencing process ... Restorative sentencing

goals do not usually correlate with the use of prison as a sanction. In our view, Parliament's choice to include (

e) and (

f) alongside thetraditional sentencing goals must be understood as evidencing an intention to expand the parameters of the sentencing analysis for alloffenders. [Emphasis added - citation omitted] [98] The question of restorative justice was pursued subsequently, at paras. 109 to 112, under the rubric "(iv) Restorative Objectives".In light of the significance of the information advanced by the Supreme Court on this topic at paras. 109 and 112 in particular, these twoparagraphs are reproduced in full: [109] While incarceration may provide for more denunciation and deterrence than a conditional sentence, a conditional sentence isgenerally better suited to achieving the restorative objectives of rehabilitation, reparations, and promotion of a sense of responsibility inthe offender.

As this Court held in Gladue, supra, at para. 43, [r]estorative sentencing goals do not usually correlate with the use of prisonas a sanction'. The importance of these goals is not to be underestimated, as they are primarily responsible for lowering the rate ofrecidivism.

Consequently, when the objectives of rehabilitation, reparation, and promotion of a sense of responsibility may realisticallybe achieved in the case of a particular offender, a conditional sentence will likely be the appropriate sanction, subject to the denunciationand deterrence considerations outlined above. [Emphasis added] [...] [112] The objectives of reparations to the victim and the community, as well as the promotion of a sense of responsibility in offendersand acknowledgment of the harm done to victims and to the community may also be well served by a conditional sentence.

For example,in some cases, restitution orders to compensate the victim may be made a condition. Furthermore, the imposition of a condition ofcommunity service can assist the offender in making reparations to the community and in promoting a sense of responsibility. Aninteresting possibility in this regard would be an order that the offender speak in public about the unfortunate consequences of his or herconduct, assuming the offender were amenable to such a condition.

Not only could such an order promote a sense of responsibility and anacknowledgment of the harm done by the offender, it could also further the objective of deterrence, as I discussed above. In my view, theuse of community service orders should be encouraged, provided that there are suitable programs available for the offender in thecommunity. By increasing the use of community service orders, offenders will be seen by members of the public as paying back theirdebt to society.

This will assist in contributing to public respect for the law. [Emphasis added] ii) Community service orders and fostering a sense of responsibility [99] The corollary proposition to the prior ones is that community service orders may be particularly apt in fostering the promotion ofthis sense of responsibility, especially where offenders speak publicly of their crimes. Indeed, para. 112 of the reasons of judgment ofChief Justice Lamer in R. v. Proulx provides signal instruction in this respect. [100] A signal

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