R. v. Miller, 2017 NLCA 22

Dane Cary Miller (appellant) v. Her Majesty the Queen (respondent) (16/28) Indexed As: R. v. Miller 2017 NLCA 22 1 C.A.N.L.R. 574 Court of Appeal of Newfoundland and Labrador Welsh, Harrington and Hoegg JJ.A. March 29, 2017

Summary: After entering a guilty plea to a charge of possessing child pornography, Mr. Miller was sentenced to ten months in custody followed by three years’ probation and ancillary orders including an order under

section 161 of the Criminal Code which prohibited him from attendance at various places and activities which involve children under 16 and from using a computer to communicate with persons under 16 . Mr. Miller sought leave to appeal and appealed only the

section 161 prohibition order, on the basis that there was insufficient evidence to justify its issuance. Held: Leave to appeal granted, appeal dismissed. Hoegg J.A. (Welsh and Harrington JJ.A. concurring): The appeal involved a part of Mr. Miller’s sentence. Leave to appeal was required pursuant to section 675(1) (

b) of the Criminal Code . The Crown conceded that Mr. Miller’s appeal raises an arguable point and has sufficient merit for appellate consideration. Accordingly leave to appeal was granted. The fundamental purpose of a

section 161 prohibition order is to protect children from sexual violence. It is also a form of punishment that is part of the arsenal of sanctions which can be imposed on offenders upon certain convictions, including possession of child pornography. S ection 161 orders can only be imposed when there is an evidentiary basis upon which to conclude that the particular offender poses a risk to children and the judge is satisfied that the specific terms of the order are a reasonable attempt to minimize that risk. There are a number of harms and apprehensions of harm resulting from the possession of child pornography.

A number of factors including the circumstances of the offence and the offender may be considered in deciding whether to impose a

section 161 order. The imposition of a

section 161 order is a discretionary decision. A judge’s discretion, of course, must be exercised judicially, which would require the judge to have a proper basis for imposing the order. If a sentencing judge errs in a manner which impacts the imposition or the terms of the order, this Court could intervene. The facts and circumstances of a particular offence and/or an offender can, on their own, satisfy a judge that the offender poses a risk of danger to children so as to justify the imposition of a

section 161 order. The “risk to reoffend” assessment tests used in Mr. Miller’s case, although they favoured him and found he is at a low risk to reoffend, relate to a variety of offences different from, although including, the possession of child pornography and to offenders with various types and levels of involvement in criminal activity and various personal circumstances. These risk assessments are of limited value, and do not lead to the conclusion that Mr. Miller is a low risk to children. The facts and circumstances of Mr. Miller’s possession offence are directly relevant. The sheer number of images in this case, their

violent content, the tender ages of the children depicted, and the fact that Mr. Miller viewed and deleted this material over a period of time show that he poses a risk to children by having exposed himself to the material described herein or by the possibility of reoffending. While Mr. Miller did not have a criminal record, this fact was not determinative of no or low risk of future harm and qualified by the fact that his offence cannot be fairly characterized as a one-time act of curiosity. Taking the above circumstances into consideration, the sentencing judge did not err in imposing the

section 161 order that he did. The terms of the

section 161 order imposed on Mr. Miller are appropriately tailored to Mr. Miller’s personal circumstances and are not overly broad. Mr. Miller retains the option to apply for variation of the conditions in the order if circumstances indicate. The sentencing judge did not err in the exercise of his discretion and the appeal was dismissed. Cases cited: R. v. Johnston , 2011 NLCA 56 , 311 Nfld. & P.E.I.R. 129 R. v. K.R.J. , 2016 SCC 31 , [2016] 1 S.C.R. 906 R. v. A.(R.K.) , 2006 ABCA 82 , 384 A.R. 222 R. v. Sharpe , 2001 SCC 2 , [2001] 1 S.C.R. 45 R. v. E.(W.) , 2010 NLCA 4 , 293 Nfld. & P.E.I.R. 52 R. v.

Bussey , 2014 NLCA 18 R. v. Lacasse , 2015 SCC 64 , [2015] 3 S.C.R. 1089 Counsel: Adam C. Baker, for the appellant; Iain Hollett, for the respondent. This appeal was heard on December 5, 2016 before Welsh, Harrington and Hoegg JJ.A. The following judgment was delivered on March 29, 2017 by Hoegg J.A. for the Court. ______________________________________________________________ Hoegg J.A.: [ 1 ] On August 5, 2015 Dane Cary Miller entered a guilty plea to a charge of possessing child pornography.

On that date a pre- sentence report was ordered and the matter was set over to December 1, 2015 for facts and sentencing. On December 1 it was decided that the Judge would view the pornographic material in question before imposing sentence. The Judge did so, and the hearing resumed on December 3, 2015, when a conviction was entered. Sentencing was set over until February 11, 2016. [ 2 ] On February 11 Mr. Miller was sentenced to ten months in custody followed by three years’ probation. He was made subject to SOIRA, DNA and forfeiture orders as well as an order under

section 161 of the Criminal Code which prohibited him from attendance at various places and activities which involve children under 16 and from using a computer to communicate with persons under 16 . Mr. Miller appeals only the

section 161 prohibition order, on the basis that there was insufficient evidence to justify its issuance. LEAVE TO APPEAL [ 3 ] The appeal involves a part of Mr. Miller’s sentence. Accordingly, leave to appeal is required pursuant to section 675(1) (

b) of the Criminal Code . [ 4 ] The test for leave to appeal sentence was stated by this Court in another appeal involving child pornography, R. v. Johnston , 2011 NLCA 56 , 311 Nfld. & P.E.I.R. 129 , to be “whether the appeal is frivolous in the sense of having no arguable basis or sufficient merit” (paragraph 10).

[ 5 ] The Crown concedes that the test for leave has been satisfied in this case. I agree that Mr. Miller’s appeal raises an arguable point and has sufficient merit for appellate consideration. Accordingly, I would grant leave to appeal. ANALYSIS Issue [ 6 ] Mr. Miller argues that the Judge erred in making a

section 161 order on the basis of the facts and evidence presented at his sentencing, saying that they do not establish that he is such a risk to society so as to warrant imposition of such an order. The issue is whether the sentencing Judge had a sufficient basis on which to exercise his discretion to impose the order. The Law [ 7 ] Section 161(1) of the Criminal Code reads:

(1) When an offender is convicted, or is discharged on the conditions prescribed in a probation order under

section 730, of an offence referred to in subsection (1.1) in respect of a person who is under the age of 16 years, the court that sentences the offender or directs that the accused be discharged, as the case may be, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, shall consider making and may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from (

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

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

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

d) using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court. … Also of interest is section 161(3):

(3) A court that makes an order of prohibition or, where the court is for any reason unable to act, another court of equivalent jurisdiction in the same province, may, on application of the offender or the prosecutor, require the offender to appear before it at any time and, after hearing the parties, that court may vary the conditions prescribed in the order if, in the opinion of the court, the variation is desirable because of changed circumstances after the conditions were prescribed. [ 8 ] The fundamental purpose of a

section 161 prohibition order is to protect children from sexual violence ( R. v. K.R.J. , 2016 SCC 31 , [2016] 1 S.C.R. 906 at paras. 44-46 ). It is also a form of punishment that is part of the arsenal of sanctions which can be imposed on offenders upon certain convictions (paragraphs 50 and 57). Possession of child pornography is one of the offences in respect of which a conviction can result in the imposition of a

section 161 order. The

section requires a sentencing judge to consider making such an order, but he or she is not required to impose one. [ 9 ] In K.R.J. the Supreme Court was considering whether the retrospective operation of sections 161 (

c) and (

d) was constitutional.

Section 161 (

c) prohibits unsupervised contact with a person under 16 years of age and

section 161 (

d) prohibits use of the internet per conditions set by a court. In confirming the protective purpose of

section 161 orders, the Court ruled that such orders can only be imposed when there is an evidentiary basis upon which to conclude that the particular offender poses a risk to children and the judge is satisfied that the specific terms of the order are a reasonable attempt to minimize that risk (paragraph 48). [ 10 ] In K.R.J. , the Court referenced the Alberta Court of Appeal decision in R. v. A.(R.K.) , 2006 ABCA 82 , 384 A.R. 222 . A.(R.K.) involved an offender’s appeal of a lifetime

section 161 order on the basis that it was overly broad and lengthy. The order had been imposed upon the offender’s conviction of three serious sexual offences involving a five-year-old boy. [ 11 ] In A.(R.K.) , the Court set out a number of factors to be considered in deciding whether to impose a

section 161 order. The Court directed that a court must take “a purposive approach” to the imposition of a

section 161 order and “must assess the extent of the risk to children based on a number of factors, including the circumstances of the offence and the offender” (paragraph 26). In further explanation, at paragraph 28, the Court stated: The appellant asserts that the absence of a previous related record or evidence of a potential for recidivism suggests a less restrictive order. However, neither a related record nor psychological evidence supporting untreatable paedophilia are pre-conditions to a s. 161 order.

The circumstances of the offence may themselves be sufficient for a trial judge to be satisfied that the offender poses a serious danger to children. Having made that determination, those same circumstances affect the length and nature of the order. [ 12 ] Child pornography was the focus of the Supreme Court’s decision in R. v. Sharpe , 2001 SCC 2 , [2001] 1 S.C.R. 45 where the accused challenged the constitutionality of his possession charge under

section 163.1(4) of the Criminal Code . His argument was that the criminalization of possession of child pornography violates sections 2(

b) and 7 of the Charter . The Court ruled that while the

offence of simple possession of child pornography is a form of expression protected by

section 2(

b) of the Charter , it is saved by

section 1 of the Charter on the basis that the prohibition was enacted for a pressing and substantial objective – that being the protection of children from the risk of exploitation and other harms associated with child pornography. [ 13 ] At paragraphs 28 and 29 of Sharpe , McLachlin C.J.C. described the relevant interests at stake in prohibiting the possession of child pornography: This brings us to the countervailing interest at stake in this appeal: society’s interest in protecting children from the evils associated with the possession of child pornography.

Just as no one denies the importance of free expression, so no one denies that child pornography involves the exploitation of children. 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. However, possession of child pornography contributes to the market for child pornography, a market which in turn drives production involving the exploitation of children.

Possession of child pornography may facilitate the seduction and grooming of victims and may break down inhibitions or incite potential offences. Some of these links are disputed and must be considered in greater detail in the course of the s. 1 justification analysis. The point at this stage is simply to describe the concerns that, according to the government, justify limiting free expression by banning the possession of child pornography. These then are the values at stake in this appeal.

On the one hand stands the right of free expression – a right fundamental to the liberty of each Canadian and our democratic society.

On the other stands the conviction that the possession of child pornography must be forbidden to prevent harm to children. [ 14 ] At paragraphs 87-92, Chief Justice McLachlin discussed the harms and apprehensions of harm resulting from the possession of child pornography, which I have summarily stated as follows: (1) “the exposure to child pornography may reduce paedophiles’ defences and inhibitions against sexual abuse of children” by making “the abnormal seem normal and the immoral seem acceptable” (paragraph 88); (2) the possession of child pornography fuels fantasies, making paedophiles more likely to offend (paragraph 89); (3) criminalizing the possession of child pornography provides the state with a useful tool in detecting and prosecuting the production and distribution of child pornography (paragraph 90); (4) child pornography is used by paedophiles to “groom” or seduce child victims (paragraph 91); (5) children are used and abused in the making of child pornography, which abuse is fueled by the market for it and the market is fueled by those who seek to possess it (paragraph 92). [ 15 ] The Chief Justice concluded that criminalizing the possession of child pornography was constitutionally valid because possession increases the risk of child abuse, saying at paragraph 94: I conclude that the social science evidence adduced in this case, buttressed by experience and common sense, amply meets the Oakes requirement of a rational connection between the purpose of the law and the means adopted to effect this purpose.

Possession of child pornography increases the risk of child abuse. It introduces risk, moreover, that cannot be entirely targeted by laws prohibiting the manufacture, publication and distribution of child pornography. Laws against publication and distribution of child pornography cannot catch the private viewing of child pornography, yet private viewing may induce attitudes and arousals that increase the risk of offence. Nor do such laws catch the use of pornography to groom and seduce children.

Only by extending the law to private possession can these harms be squarely attacked. [ 16 ] Two recent cases from this Court involved consideration of

section 161 orders. In Johnston , this Court declined to impose a

section 161 order, saying at paragraph 65: There was no evidence before the sentencing judge indicating that any of the risks contemplated exist with respect to this Appellant. The offence consisted of private viewing of child pornography – nothing else. There is no evidence that the Appellant is a pedophile. The pre-sentence report states that personality testing by a psychologist “reveals no obvious psychopathologies”. As the order is not necessary for the protection of society, I would not impose it. [ 17 ] A few years earlier in R. v. E.(W.) , 2010 NLCA 4 , 293 Nfld. & P.E.I.R. 52 , this Court upheld the imposition of a

section 161 order after reducing a trial judge’s sentence of four years and nine months for the possession of child pornography on the basis that its length was excessive. In E.(W.) , the Court stated that “Mr. E. had a large number of images. Both counsel agree that some were especially disturbing. Mr. E.’s daughter became aware at a young age that her father viewed child pornography. Mr. E. collected the material over an extended period” (paragraph 37). [ 18 ] At this appeal hearing, Crown counsel respectfully asked the Court to reconcile the Johnston and E.(W.) cases so as to give future direction on the appropriateness of imposing a

section 161 order in possession of child pornography cases (see paragraph 32 below). In this regard, I note that while Johnston does advert to the necessity to address risk before imposing a

section 161 order, neither judgment references Sharpe , and both Johnston and E.(W.) were decided before the Supreme Court’s decision in K.R.J. [ 19 ] As noted above, the imposition of a

section 161 order is a discretionary decision. A judge’s discretion, of course, must be exercised judicially ( R. v. Bussey , 2014 NLCA 18 at para. 12 ), which in this case would require the judge to have a proper basis for imposing the order. If a sentencing judge errs in a manner which impacts the imposition or the terms of the order, this Court could intervene ( R. v. Lacasse , 2015 SCC 64 , [2015] 3 S.C.R. 1089 at para. 44 ). Application of the Law to this Case

[ 20 ] I would first observe that risk assessments are not given to exact measurement. Predicting whether an offender will reoffend, not to mention assessing the risk of future harm to children by a particular offender who has been convicted of a sexual offence involving children, is a challenging exercise. While past conduct can be an indicator of future conduct, care must be taken in placing reliance on this common-sense notion in the application of criminal law principles.

In Sharpe , Chief Justice McLachlin was alive to the issue of how harm is proved, saying at paragraph 85: … what standard of proof must the Crown achieve in demonstrating harm – scientific proof based on concrete evidence or a reasoned apprehension of harm? The trial judge insisted on scientific proof based on concrete evidence. With respect, this sets the bar too high. In Butler , supra , considering the obscenity prohibition of the Criminal Code , this Court rejected the need for concrete evidence and held that a “reasoned apprehension of harm” sufficed (p. 504).

A similar standard must be employed in this case. [ 21 ] All things considered, the direction from the Supreme Court in K.R.J. and its direction respecting harms occasioned by the possession of child pornography in Sharpe , and the reasoning in A. ( R.K. ) , lead me to conclude that the facts and circumstances of a particular offence and/or an offender can satisfy a judge that the offender poses a risk of danger to children so as to justify the imposition of a

section 161 order. [ 22 ] The

section 161 order imposed on Mr. Miller reads as follows: Mr. Miller is prohibited from: (

a) attending at a public park or a public swimming area where persons under the age of sixteen years are present or can be reasonably expected to be present; (

b) as well as attending at any day care centre, school ground, playground, or community center; (

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

d) using a computer system for the purpose of communicating with a person under the age of sixteen years, except for use at his business for the purposes of business only and not to be used by Dane Cary Miller. [ 23 ] In Mr. Miller’s Pre-Sentence Report, risk to reoffend was addressed and the report was considered by the sentencing judge. Mr. Miller scored a “low risk to reoffend” on two risk assessment tests, neither of which was specifically designed to assess the risk to reoffend of those convicted of child pornography offences. One test administered on Mr.

Miller —the CSCMI— measures the risk to reoffend regarding “further criminal activities”. This test assessed Mr. Miller to be at “a very low risk to become involved in further criminal activities”. The criminogenic factors identified in his case were considered to be leisure/recreation and family/marital. [ 24 ] A second assessment test used to “facilitate risk assessment of offenders with sexual convictions in the past five years” –– the Static–99 Risk Assessment –– is designed to assist in the prediction of sexual and violent recidivism of sexual offenders.

The estimates provided by the Static–99 are group estimates based upon convictions derived from groups of individuals who have committed prior sexual offences or a current non-sexual violent offence, who have offended against male victims or stranger victims, or who have a history of non-sexual violence or non-contact sex offences. The number of previous sentencing dates and being less than 25 years old are also factors in the Static–99 group estimates. [ 25 ] Mr. Miller’s score on this second test placed him in the low risk to reoffend category relative to other adult male sex offenders.

However, the author of Mr. Miller’s Pre-Sentence Report qualified Mr. Miller’s placement in the low risk to reoffend category saying: The recidivism estimates provided by the Static–99 are group estimates based upon reconvictions and were derived from groups of individuals with those characteristics. As such, these estimates do not directly correspond to the recidivism risk of an individual offender. The offender’s risk may be higher or lower than the probabilities estimated in the Static–99 depending on other risk factors not measured by this instrument. . . .

Compared to other criminal offenders the subject’s risk to reoffend for sexual behavior has been assessed as low based on the Static–99 assessment tool. In comparison to the general offender population his risk to reoffend is considered very low. It is important to be aware that risk assessment tools do not specifically rate a specific person’s risk to commit further criminal offences; offenders with certain characteristics tend to recidivate at various levels but there is no guarantee that the subject will, or will not reoffend at the predictive rate.

The writer is of the professional opinion that the above risk assessment appears reasonable, but further assessment of Mr. Miller’s risk/needs factors is warranted since the process and time constraints of preparation of presentence reports places limitations on the thoroughness of the assessments. [ 26 ] The record shows that there was no further assessment undertaken of Mr. Miller’s risk to reoffend. [ 27 ] The “risk to reoffend” assessment tests used in Mr.

Miller’s case relate to a variety of offences different from, although including, the possession of child pornography and to offenders with various types and levels of involvement in criminal activity and various personal circumstances. They are not individualized assessment tools. While these risk assessments are favorable to Mr. Miller, they are of limited value, and do not lead to the conclusion that Mr. Miller is a low risk to children. [ 28 ] The facts and circumstances of Mr. Miller’s possession offence are directly relevant. In particular, the volume of pornographic images of children found in Mr.

Miller’s possession is concerning. A total of 65 child pornography videos and 481 (still) child pornographic images was found. The ages of the children depicted in the images is also concerning. The children depicted in most of them are estimated to be between five and ten years of age, with at least one child estimated to be as young as three. Children of these tender ages are defenseless victims in the business of pornography; being so young, they can hardly escape their predators even if they

had the wherewithal to do so. [ 29 ] Aside from the volume of images and the ages of the children depicted, the content of the videos and images is very disturbing. The images are not just nude pictures; they depict sexual assaults on the children and some of the images and videos involve additional acts of physical violence, degradation and humiliation distinct from the violence, degradation and humiliation inherent in the sexual assault of children. Such was described in the Crown factum at paragraph 47 as follows: … For example, one of the videos depicts a young “14 yr old slave”.

An adult male has a dog collar on the child and he violently drives his penis in and out of her mouth. Another depicts a male standing up holding nude female child upside down by her legs while she is performing oral sex on the male. Another video shows a thermometer being inserted into a child’s anus. [ 30 ] To my mind, the images in Mr. Miller’s possession demonstrate more than a “curiosity” about child pornography, as Mr. Miller maintained. This is especially so given his admission that his practice was to “download, view and then delete” the files. One wonders how many files Mr.

Miller had deleted before he was found in possession of the 546 files, and how much child pornography it would take to satisfy his “curiosity”. [ 31 ] The sheer number of images in this case, their violent content, the tender ages of the children depicted, and the fact that Mr. Miller viewed and deleted this material over a period of time show that he poses a risk to children by having exposed himself to the material described herein or by the possibility of reoffending, thereby harming children in the ways that Chief Justice McLachlin recognized in Sharpe .

In particular, the images could distort or could have distorted Mr. Miller’s cognition about the appropriateness of adults engaged in sexual activity with children and his persistent viewing of the material could fuel fantasies that would incite him to engage in harmful activity or act on fantasies. These are accepted risks of the possession of child pornography ( Sharpe at paragraphs 88 and 89 ).

As well, it goes without saying that possession of child pornography “clearly and uncontradictedly” poses a risk of harm to children by its use to groom children for the sex trades and actually harms the children used and abused in the material ( Sharpe at paragraph 91 ). [ 32 ] The volume and content of child pornography images found in Mr. Miller’s possession, along with the 20-year difference between Mr. Miller’s and Mr. Johnson’s ages (Mr. Johnson being 72 years old), distinguish this case from Johnston .

The nature of the material in this case is more akin to the circumstances which informed the justification for the imposition of the

section 161 order in E. (W.) . [ 33 ] Mr. Miller did not have a criminal record. While that fact is in itself helpful to him, it is not determinative of no or low risk of future harm. Moreover, it is qualified by the fact that his offence cannot be fairly characterized as a one-time act of curiosity; viewing, downloading and then viewing new material took place over a known period of several months. He was convicted only once, but he had been committing the offence over a period of time. [ 34 ] To be clear, this decision is not to be taken to mean that Mr.

Miller is likely to reoffend and thereby harm children or that he is likely to otherwise harm children. The decision means that the facts and circumstances of this case show that he poses a risk of future harm to children, so as to justify imposition of a

section 161 order, which is directed to minimizing such risk. [ 35 ] Taking the above circumstances into consideration, I am of the view that the sentencing judge did not err in imposing the

section 161 order that he did. He himself viewed a selection of the pornographic videos and still images found in Mr. Miller’s possession, and he gave reasons why he found the material of a nature and volume to cause him to conclude that Mr. Miller poses a risk to children. It has not been shown that the Judge exercised his discretion improperly in imposing the

section 161 order, and I would not interfere with his decision. [ 36 ] The terms of the

section 161 order imposed on Mr. Miller are, in my view, appropriately tailored to Mr. Miller’s personal circumstances and are not overly broad. Mr. Miller remains able to use a computer at work. He is only prohibited from using it to communicate with any person under the age of 16. If a circumstance arises in his automotive repair shop where communication with a person under 16 is required, the

section 161 order provides that another person at his shop can do the communicating from the shop computer. To my mind, this tailoring to Mr. Miller’s circumstances is a reasonable term of the order. I would also point out that section 161(3) provides Mr. Miller with the option to apply for variation of the conditions in the order if circumstances indicate. CONCLUSION [ 37 ] In the result, I am of the view that the sentencing Judge did not err in exercising his discretion to impose the

section 161 prohibition order in Mr. Miller’s case. Accordingly, I would grant leave to appeal but dismiss Mr. Miller’s appeal. Appeal dismissed.