Her Majesty the Queen - v. -, 2020 SKPC 32

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 32 Date: August 28, 2020 Information: Brown/991032707 Stout/991086279 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jason Michael Brown -------------------- and -------------------- Her Majesty the Queen - and - Dave William Stout Appearing: Zoey Kim-Zeggelaar For the Crown Brendan Pyle For the Accused Jeffrey Crawford For the Attorney General for Saskatchewan

SENTENCING DECISION A. CRUGNALE-REID, J [1] Jason Brown entered a guilty plea to possession of child pornography between December 25, 2016 and June 21, 2017,contrary to s. 163.1(4) of the Criminal Code. [2] David Stout also entered a guilty plea to a charge of possession of child pornography on or about February 28, 2019,contrary to s. 163.1(4) of the Criminal Code. [3] Sentencing arguments for both individuals were presented at the same time.

Their separate cases involve similar issues. [4] This is the sentencing decision in both cases. [5] The offence of possessing child pornography under s. 163.1(4) is subject to a mandatory minimum sentence of one year ofimprisonment when, as in this case, the Crown proceeds by indictment. [6] Mr. Brown and Mr. Stout have each brought a constitutional challenge to the mandatory minimum sentence. They argue itconstitutes cruel and unusual punishment, and therefore violates their rights under s. 12 of the Charter. Analytical Framework for a

Section 12 Charter Challenge [7]

Section 12 of the Charter provides that “[e]veryone has the right not to be subjected to any cruel and unusual treatment orpunishment”. [8] The Supreme Court of Canada set out the framework for a s. 12 Charter challenge in R v Lloyd, 2016 SCC 13, 334 CCC (3d)20 [Lloyd]. Chief Justice McLachlan, as she then was, stated at paragraph 22: A sentence will infringe s. 12 if it is “grossly disproportionate” to the punishment that is appropriate, having regard to the nature of theoffence and the circumstances of the offender: Nur, at para. 39; R. v. Smith, (SCC), [1987] 1 S.C.R. 1045, at p. 1073.

Alaw will violate s. 12 if it imposes a grossly disproportionate sentence on the individual before the court, or if the law’s reasonablyforeseeable applications will impose grossly disproportionate sentences on others: Nur, at para. 77. [9] When a mandatory minimum sentence is challenged under s. 12, a two-step analysis is required: First, the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles ofsentencing in the Criminal Code.

The court need not fix the sentence or sentencing range at a specific point, particularly for a reasonablehypothetical case framed at a high level of generality. But the court should consider, even implicitly, the rough scale of the appropriatesentence. Second, the court must ask whether the mandatory minimum requires the judge to impose a sentence that is grosslydisproportionate to the offence and its circumstances: Smith, at p. 1073; R. v. Goltz, (SCC), [1991] 3 S.C.R. 485, at p.498; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at paras. 26-29; R. v. Lyons, (SCC), [1987] 2 S.C.R. 309, at pp.337-38.

In the past, this Court has referred to proportionality as the relationship between the sentence to be imposed and the sentence thatis fit and proportionate: see e.g. Nur, at para. 46; Smith, at pp. 1072-73. The question, put simply, is this: In view of the fit andproportionate sentence, is the mandatory minimum sentence grossly disproportionate to the offence and its circumstances? If so, theprovision violates s. 12. (Lloyd at para 23) [10] The majority in Lloyd addressed the high standard for finding a sentence grossly disproportionate, stating the sentence “mustbe more than merely excessive.

It must be ‘so excessive as to outrage standards of decency’ and ‘abhorrent or intolerable’ to society”(citations omitted, at para 24). [11] The initial focus of the analysis is on the particular offender who brings the s. 12 challenge. In R v Nur, 2015 SCC 15, 322CCC (3d) 149 [Nur], the Supreme Court held that a court should also consider, where necessary, other offenders who might reasonablybe caught by the mandatory minimum (Nur at paras 47-49).

These are the reasonable hypothetical offenders. [12] The Supreme Court in Lloyd defined the power of a provincial court judge to decide the constitutionality of a mandatoryminimum sentence. Provincial court judges do not have the power to make declarations that a law is of no force and effect (Lloyd at para15). However, they do have the power to determine the constitutionality of a law that is properly before them (ibid).

If a provincial courtjudge determines that a law is unconstitutional, the judge can refuse to apply the law in the case at bar but such a finding does not renderthe law of no force and effect (ibid at para 19). [13] Additionally, there is no obligation on this Court to consider the constitutionality of a mandatory minimum sentence if theprovision would have no impact on the sentence being imposed.

Chief Justice McLachlin, as she then was, outlined in Lloyd the role ofprovincial court judges when mandatory minimums are challenged: [18] To be sure, it does not follow that a provincial court judge is obligated to consider the constitutionality of a mandatory minimum

provision where it can have no impact on the sentence in the case at issue. Judicial economy dictates that judges should not squander time and resources on matters they need not decide. But a formalistic approach should be avoided. Thus, once the judge in this case determined that the mandatory minimum did not materially exceed the bottom of the sentencing range applicable to Mr. Lloyd, he could have declined to consider its constitutionality. To put it in legal terms, the doctrine of mootness should be flexibly applied.

If an issue arises as to the validity of the law, the provincial court judge has the power to determine it as part of the decision-making process in the case. To compel provincial court judges to conduct an analysis of whether the law could have any impact on an offender’s sentence, as a condition precedent to considering the law’s constitutional validity, would place artificial constraints on the trial and decision-making process. Positions of the Parties [ 14 ] Mr. Brown and Mr. Stout argued that the mandatory minimum sentence of imprisonment for one year under s. 163.1(4) (

a) of the Criminal Code constitutes cruel and unusual punishment and, therefore, violates their rights under s. 12 of the Charter . Each argues that the mandatory minimum sentence would be grossly disproportionate to the fit sentence in his particular case. [ 15 ] Neither Mr. Brown nor Mr. Stout advanced any challenge to the mandatory minimum on the basis of reasonable hypotheticals. [ 16 ] Both have asked this Court to make a ruling that the mandatory minimum is unconstitutional and to not apply it.

Each submits that the fit sentence in his case would be a suspended sentence with probation for 24 months. [ 17 ] The Crown argued that the fit sentence for each is 12 months’ incarceration followed by 24 months’ probation. [ 18 ] The Attorney General for Saskatchewan (Attorney General) argued the constitutional question. The Attorney General submitted that a fit sentence for each individual is one year of imprisonment followed by 24 months of probation and that, therefore, the mandatory minimum sentence would have no impact on the sentence.

Given this, the Attorney General has asked this Court to decline to consider the constitutionality of the impugned provision. In the alternative, the Attorney General argued that even if this Court determines an appropriate sentence is less than the mandatory minimum but that the minimum is not grossly disproportionate to the appropriate sentence, then this Court should still decline to consider the constitutionality of the impugned provision.

In the event of a finding by this Court that the mandatory minimum is grossly disproportionate to the appropriate sentence for the particular offender or for a reasonable hypothetical offender, the Attorney General does not seek to justify the mandatory minimum under s. 1 of the Charter . Circumstances of the Offence and Offender Jason Brown [ 19 ] The circumstances in Mr. Brown’s case are as follows. [ 20 ] On February 15, 2017 a complaint was made to police about suspected child pornography files that had been uploaded to Google servers on December 25, 2016.

On June 5, 2017 a second complaint was received from Facebook regarding two child pornographic images that were shared with a person in Great Britain on May 27, 2017. [ 21 ] Both complaints were investigated and led to Mr. Brown. He was charged with possession of child pornography after searches of his two residences and the seizure of three computers and five cell phones. [ 22 ] The material found in his possession consisted of 702 images of child pornography, of which 585 were duplicate images and 117 were unique images. [ 23 ] The images were of children posing in sexually suggestive clothing or positions.

These images included partially nude children with sexual organs visible; focused images of genital and anal areas; an image of a toddler’s vaginal and anal region being touched by a man’s hand; and an image of a prepubescent female holding an object near her genital area. [ 24 ] Mr. Brown is 43 years old. A pre-sentence report (PSR) was prepared for the Court. [ 25 ] Mr. Brown described his childhood as different or difficult, as his father was an alcoholic. His family suffered financially due to his father’s alcoholism and gambling. When Mr. Brown was in his early 20s, his father died of alcoholism. [ 26 ] Mr.

Brown’s mother is supportive of him and helps him, but she does not support his criminal behaviour. [ 27 ] Mr. Brown is currently single and his last relationship was 13 years ago. He and his ex-partner had a child together, but the baby was born prematurely and died when it was one month old. Their relationship ended when the baby died, and Mr. Brown’s partner blamed him for the death. He has had difficulty coping with the loss. [ 28 ] Mr. Brown suffers from ventricular tachycardia, coronary artery disease, neurofibromatosis, chronic obstructive pulmonary disease (COPD), and sleep apnea.

He takes numerous medications for these health conditions. He sleeps with a positive airway pressure machine for his sleep apnea and has a defibrillator to treat life-threatening arrhythmia.

[ 29 ] Mr. Brown has in the past been diagnosed with major depressive disorder and suffers from bereavement issues and alcohol use disorder. He has been prescribed medication for treatment of his mental health issues. [ 30 ] Mr. Brown has struggled with alcohol and drug use. At the age of 16, he began using drugs and has used LSD, marijuana, hash, cocaine, and mushrooms. He said that he would consume any drug available to him and on a daily basis. Mr. Brown states he was under the influence of alcohol when the offence occurred. When the PSR was prepared, Mr.

Brown had last consumed drugs and alcohol one year prior. [ 31 ] In 1997 Mr. Brown received his grade 12, and since then he has worked at various retail jobs. At the time of the offence, Mr. Brown was on disability leave for health issues. When the PSR was prepared, Mr. Brown had been on disability for five years. [ 32 ] Mr. Brown has no criminal record. He recognizes that the children in the pornographic photographs are victims of his offence. Mr. Brown also recognizes how his offences have negatively impacted his family.

He stated that he feels bad, disgusted, ashamed, and embarrassed about his actions. [ 33 ] The PSR indicated that Mr. Brown was unable to demonstrate insight into his offending behaviour beyond limiting his time on the internet. He blames his offending on his mental health issues and substance abuse, stating that he got side-tracked on the internet when he was consuming drugs and alcohol. [ 34 ] Mr. Brown’s risk for general reoffending was assessed as being low. David Stout [ 35 ] The circumstances in Mr.

Stout’s case are as follows. [ 36 ] On February 28, 2019, police received a complaint from a person who witnessed a male, later identified as Mr. Stout, watching three separate videos of child pornography at the Regina Public Library. [ 37 ] On April 3, 2019 police were alerted that Mr. Stout was again at the library using his personal devices. He was arrested and his home was searched. A computer, a cell phone, and four USB storage devices were seized. [ 38 ] Mr.

Stout admitted to having been in possession of child pornography on February 28, 2019, as had been initially reported. [ 39 ] Child pornography was found on the seized devices consisting of 67 images and five videos, all of which were unique. [ 40 ] Some of the images were of children posing nude or partially nude with sexual organs visible. Others were focused images of children’s anus and genital areas with anus and legs spread by an adult or the child.

There were images and videos of children engaged in oral, vaginal, and anal intercourse with other children or adult men, and lastly images of sex toys or other objects being inserted into children. [ 41 ] Mr. Stout is 47 years old. A PSR was prepared for the Court. [ 42 ] In the PSR, Mr. Stout indicated that he did not experience any alcohol or drug problems or any physical, emotional, or sexual abuse throughout his childhood. His mother experiences mental health issues and his father had physical health issues. When Mr. Stout was 36, his father committed suicide. This was a traumatic event for him. [ 43 ] Mr.

Stout described his fiancé as the most influential support in his life. They have been in a relationship for seven years. She was upset by Mr. Stout’s offence and does not condone his behaviour, but she continues to support him. She attends all his reporting sessions and reminds him of upcoming appointments. [ 44 ] Mr. Stout’s only other peer companion is his brother, with whom he lives. He communicates daily with his brother and they engage in recreational activities together. His brother appears to be a positive influence in his life. [ 45 ] In 1991 Mr. Stout completed his grade 10 and in 1998 obtained his GED.

His employment history is limited, but he was employed as a security guard from 2009 to 2010. He was unemployed at the time of the offence and has no future plans regarding employment or education. [ 46 ] Mr. Stout has no prior criminal convictions. He appreciated that the children in the images and videos were the victims of his offence. Mr. Stout also believes that his criminal behaviour has affected his fiancé as she was hurt when she was made aware of the details of his offence. Mr. Stout described his actions as “completely utterly stupid” and has said that he regrets his actions.

He also said that he victimized the children all over again by viewing the child pornography. [ 47 ] The PSR indicates that Mr. Stout accepts responsibility for his actions and has insight into his offending behaviour but does not have realistic intervention strategies to prevent offending in the future. [ 48 ] Mr. Stout’s overall risk for general reoffending has been assessed as being low. He has stated he is willing to accept any conditions that the Court imposes on him and has expressed willingness to participate in sex offender programming if he is required to. Purpose and Principles of Sentencing

[ 49 ] Sections 718 to 718.2 of the Criminal Code set out the purposes and principles of sentencing to be considered by the court in deciding on a fit sentence. [ 50 ]

Section 718 states that the fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society. To achieve this purpose, sanctions imposed on offenders must be just and have one or more of the objectives set out in s. 718 .

These include: denunciation; deterrence; separation of offenders from society where necessary; rehabilitation of offenders; providing reparations for harm to victims and society; and the promotion of a sense of responsibility in the offender. [ 51 ] The fundamental principle of sentencing, set out in s. 718.1, is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A number of other principles for consideration are set out in s. 718.2.

They include taking into account any aggravating and mitigating circumstances; parity; that a combined sentence should not be unduly long or harsh; that an offender should not be deprived of liberty if less restrictive sanctions are appropriate in the circumstances; and that all available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered. [ 52 ] Additionally, s. 718.01 of the Criminal Code provides that where an offence has involved the abuse of children, the primary considerations are denunciation and deterrence.

Proportionality [ 53 ] It is well accepted in the jurisprudence that possession of child pornography is a serious and abhorrent offence that involves sexual abuse of one of the most vulnerable groups in society. Accessing and possessing child pornography encourages production and distribution and propagates the harm being done to vulnerable children affected by it. Technological developments over recent years have advanced the means of sharing such material, frequently for profit ( R v John , 2017 ONSC 810 at para 29 , 376 CRR (2d) 91). The prevalence of this material is growing.

Often the images created are permanent and not removable from sources such as the internet, resulting in a revictimization of the children involved. [ 54 ] Parliament has expressed the intention that sexual offences involving children be treated with greater severity both by introducing s. 718.01 in 2005, and by increasing the maximum, and by repeatedly increasing the minimum sentences for such offences over the years. [ 55 ] The offence of possession of child pornography under s. 163.1(4) was added to the Criminal Code in 1993.

Mandatory minimum jail sentences for the offence were first introduced in 2005 with a 15-day minimum for

summary offences and 45 days for indictable. Since then, the mandatory minimums have been increased twice. In 2012 they went to 90 days for

summary offences and six months for indictable. In 2015 they went to six months for

summary offences and one year for indictable. In that same year, the maximum sentences were also increased going from 18 months to two years less a day for

summary offences and from five years to 10 years for offences proceeding by indictment. [ 56 ] In addition to this evolving legislative framework, recent jurisprudence has recognized the changing and deepened societal understanding of the profound harm caused by sexual offences against children. Subjecting children to sexual offences causes untold physical, emotional, and psychological harm. There is an increased recognition of the seriousness of such offences.

This contemporary understanding along with expressed Parliamentary intention are key considerations in the recent Supreme Court decision in R v Friesen , 2020 SCC 9 , 444 DLR (4 th ) 1 [ Friesen ]. [ 57 ] Friesen involved an offence of sexual interference with a young child. However, the judgment addresses sentencing for sexual offences against children in general. It sends a strong message that sentences for these offences should generally be higher than those that preceded the increased maximums.

Higher sentences properly reflect Parliament’s view of the gravity of such offences and the contemporary understanding of the harm that sexual offences against children cause. In the words of the Supreme Court, this should “be understood as shifting the distribution of proportionate sentences for an offence” (at para 97). [ 58 ] Mr. Stout and Mr. Brown have argued that Friesen is not applicable to their cases since Friesen involved a “hands on” offence of sexual interference with a child, unlike their cases, which involve offences of possession of child pornography. [ 59 ] This argument is without merit.

Courts have clearly recognized that possession of child pornography is a sexual offence against children. In R v Inksetter , 2018 ONCA 474 , 141 OR (3d) 161 the Court stated: [22 ] Child pornography is a pervasive social problem that affects the global community and its children. In R. v. Sharpe , 2001 SCC 2 , [2001] 1 S.C.R. 45 , the Supreme Court described how possession of child pornography harms children. As Fraser C.J.A. wrote in R. v.

Andrukonis , 2012 ABCA 148 , at para. 29 , “possession of child pornography is itself child sexual abuse.” The children depicted in pornographic images are re-victimized each time the images are viewed.

In amassing, viewing, and making available his vast and terrible collection to others, the respondent participated in the abuse of thousands of children. [ 60 ] In R v Lynch-Staunton, 2011 ONSC 218 , Ratushny J stated: It is to be understood by those trolling the Internet for child pornography that these pictures are acts of violence against children, that viewing and possessing them perpetuates the original violence, [and] that viewing and possessing them encourages new child victims…. (at para 57)

[ 61 ] The Supreme Court in Friesen makes reference to aspects of child pornography offences in its reasons at various points, and from this it can be inferred that the Supreme Court clearly considered possession of child pornography as a sexual offence against children (see paras 48, 51, 61, 64, 67, 74, and 79). For example, in discussing the role of technology in online depictions of sexual offences against children, the Court states: [48] Technology can make sexual offences against children qualitatively different too.

For instance, online distribution of films or images depicting sexual violence against a child repeats the original sexual violence since the child has to live with the knowledge that others may be accessing the films or images, which may resurface in the child's life at any time ( R. v. Sharpe , 2001 SCC 2 , [2001] 1 S.C.R. 45 , at para. 92 ; R. v. S. (J.) , 2018 ONCA 675 , 142 O.R. (3d) 81 , at para. 120 ). [ 62 ] Turning to the question of the particular sentences to be imposed in the cases before the Court, the principle of proportionality is foremost.

A sentence must be proportionate to both the gravity of the offence before the court and the degree of responsibility of the offender. [ 63 ] In R v Rhode , 2019 SKCA 17 , the Court discussed the proportionality principle in the context of child pornography offences and stated at paragraph 74: When it comes to the fundamental principle of sentencing, the objective gravity of child pornography offences and the moral culpability of the individuals who commit those offences are considerable.

This drives courts to emphasize the objectives of denunciation and deterrence when sentencing such offenders, particularly where the offenders are otherwise law-abiding citizens…. [ 64 ] In addition to the primary sentencing objectives of denunciation and deterrence, parity is an important consideration and mitigating and aggravating circumstances are to be taken into account. Aggravating and Mitigating Circumstances [ 65 ] The specific aggravating and mitigating circumstances present in the cases of Mr. Brown and Mr. Stout will inform the proportionality analysis in their respective cases.

Jason Brown [ 66 ] In Mr. Brown’s case the aggravating circumstances include: i. The size of the collection. While not as large as in some other cases, 117 unique images is not an insignificant or a small collection; ii. The age of the children in the images. The children all appear to be young and at least one of the children is a toddler; iii. The nature of the content.

While not as egregious or abhorrent as other cases, the images include partially nude children, focused images of genital and anal areas, the use of an object, and an image of a toddler’s anal and vaginal region being touched by a man’s hand; and iv. Mr. Brown shared two images with an individual in Great Britain via Facebook. This is especially aggravating. [ 67 ] The mitigating circumstances include: i. The guilty plea; and ii. Lack of criminal record. [ 68 ] According to the PSR, Mr. Brown has some family support from his mother. [ 69 ] He was assessed in the PSR as being at low risk to reoffend generally.

While he has demonstrated some remorse for his actions, the PSR notes that he lacks insight into his offending behaviour and appears to blame his offending on his drug and alcohol abuse and mental health issues. [ 70 ] Mr. Brown also does not appear to have made any efforts at rehabilitation. The PSR recommends a period of supervised probation to follow if incarceration is ordered so that Mr. Brown will be required to participate in suitable treatment programs and develop relapse prevention plans to address risk. [ 71 ] Mr.

Brown has a number of health issues; however the indication in the PSR is that such health care needs are not unique to the correctional centre. Nursing staff is available as is a medical unit if close monitoring is required. A general practitioner runs a clinic three times per week at the center and an escort is available to take individuals to medical appointments. It appears that the correctional centre is able to adequately address Mr. Brown’s health concerns. David Stout [ 72 ] In Mr. Stout’s case, the aggravating circumstances include: i. The size of the collection.

While not as large as in some other cases, 67 images and five videos is not an insignificant or trivial collection;

ii. The nature of the content. The material collected from Mr. Stout includes a range of content involving children shown nudeor partially nude, including focused images of children’s anus and genital areas with anus and legs spread by an adult or thechild. Particularly aggravating is the content that depicts penetrative activity with objects, with other children or adult men; and iii. Mr. Stout was viewing child pornography in a public library, which meets the definition of a community centre for thepurposes of s. 161 orders to restrict access to children.

This made the child pornography visible to at least one other individual who complained to police. This is especially aggravating. [73] The mitigating circumstances include: i. The guilty plea; ii. Lack of criminal record; and iii. Mr. Stout has expressed remorse for his actions. He has shown insight into his behaviours and is willing to takeprogramming if required. [74] Mr. Stout has the support of his fiancé and has a good relationship with his brother. [75] According to the PSR, Mr. Stout is at low risk to reoffend generally.

While he has shown insight into his offendingbehaviors, he lacked realistic intervention strategies and so would benefit from appropriate programming to develop relapse preventionplans and address risk. Parity [76] In deciding on a fit and proportionate sentence, consideration should also be given to parity of sentences.

Section 718.2(

b) ofthe Criminal Code states that sentences should be similar to sentences imposed on similar offenders, for similar offences, committed insimilar circumstances. A number of cases are of assistance in this regard. [77] In R v O’Brien, 2019 ONCJ 470 [O’Brien], a 59-year-old first-time offender was sentenced to seven months of imprisonmentplus three years of probation. At the time, the mandatory minimum for

summary conviction offences was six months of imprisonment.He was in possession of 400 unique images and four videos, which depicted children as young as toddlers to prepubescent girls in sexualposes or in explicit sexual activity with adults. He was assessed by a psychiatrist for sexual offending and, despite having psychiatricdisorders, was assessed at low risk to reoffend. [78] R v Clouthier and Mitchell, 2018 ONCJ 933 [Clouthier and Mitchell], involves two separate first-time offenders who weresentenced to ten months and nine months respectively followed by two years of probation.

The applicable mandatory minimum was sixmonths. Mr. Mitchell, who received ten months, was in possession of 193 images and 164 videos that depicted various acts of childrenwith other children and children with adults. Mr. Mitchell was 55 years old and paraplegic. He had serious health needs and challenges.The Court gave him a reduction in sentence for the length of time he spent on bail conditions of house arrest. [79] Mr. Clouthier was in possession of 138 images and 35 videos. These images and videos included a focus on genital areas andexplicit sex acts with adult males. The content was described as hardcore.

He was 31 years old and working as an apprentice to a butcher.Mr. Clouthier lacked insight into his offending behaviour. The judge gave him credit for a lengthy period of time spent on strict bailconditions of house arrest. [80] In R v M.O.C., 2016 BCPC 273 [M.O.C.], a 70-year-old first-time offender was sentenced to ten months of imprisonment. The Crown proceeded by indictment and the applicable mandatory minimum was six months of imprisonment. The offender possessedone image and 58 videos, including some of young children, and some involving penetrative activity of children by adults.

He had poorhealth, which included high blood pressure, polymyalgia, and diabetes. Along with his age, the Court considered his health to be amitigating factor. He was at low risk of reoffending, but he lacked insight into his offending behaviour. [81] In R v John, 2018 ONCA 702, 366 CCC (3d) 136 [John-CA], a 29-year-old first-time offender was sentenced to ten months ofimprisonment after the Ontario Court of Appeal declared the six-month mandatory minimum of no force and effect.

The offender was inpossession of 50 images and 89 videos of child pornography that included images depicting children as young as four years old and someperhaps two or three years old, in penetrative activity with objects and adult men. The Court commented that were it not for his veryextensive rehabilitation efforts, the sentence could have been much higher. [82] In R v Kwok, (Ont Sup Ct), a 29-year-old offender was sentenced to one year in prison plus three years ofprobation after he was found in possession of 2,000 images and 60 videos of child pornography.

The offender had no record and pledguilty, but the Court noted that it was a late guilty plea. The Court also determined that the appropriate sentence for a first-time offencewas six to 18 months of imprisonment. [83] In R v Karlenzig, 2013 SKPC 48, 415 Sask R 262 a 57-year-old first-time offender was sentenced to one year when theapplicable mandatory minimum was 45 days. He possessed 192 videos and 683 images of nude or partially clad children, with genitaliaand/or anal regions exposed. Some of the films depicted children being penetrated anally.

He spent approximately $2,700 over a two andone-half year period acquiring the material online. He had two homemade DVD’s of young boys playing in his residential complex. Hewas an educated person. He quit his job upon arrest to avoid embarrassing his employer. He had not taken any steps to deal with hisissues, but expressed remorse and a desire to take treatment to gain insight into his behaviour.

[ 84 ] In R v Dansereau , 2014 ONCJ 250 , a 56-year-old first-time offender was sentenced to 15 months in prison when the applicable mandatory minimum was 45 days. He was in possession of 535 images and 31 videos of young girls and penetrative activity was involved. The offender pled guilty. He was working as a shift boss at a mine at the time of the offence.

The Court noted, however, that the offender was more concerned about his own situation and losing his job than he was for taking responsibility for his behaviour. [ 85 ] In R v Mollon , 2019 BCSC 423 , a 50-year-old first-time offender was sentenced to 15 months in prison for one count of possession of child pornography, followed by three years of probation, and six months concurrent for one count of transmission (a single transmission of two images online). At the time, the mandatory minimum sentences were six months by

summary conviction for possession and one year for the transmission offence. He was found in possession of about 1,600 images and 70 videos, which “traverse[d] a spectrum of depravity” and included a video of a baby being sexually abused (at para 32). He was assessed as a low risk offender and had mild cerebral palsy, a personality disorder, and psychological effects from childhood trauma. The Court found the correctional facilities were able to address these conditions.

He had not sought any treatment for his issues related to the offences. [ 86 ] In R v MacDonald , 2018 SKQB 18 [ MacDonald ], a 73-year-old first-time offender was sentenced to 16 months in prison after he was found in possession of 4,512 images and 52 videos with content ranging from nudity to hardcore sex acts. He was assessed at low risk to reoffend, was remorseful and undertook voluntary, post-charge attendance with counsellors. He had poor health.

The aggravating factors were the size of the collection, the length of time engaged in collecting it (almost a decade), the young age of the children (some were toddlers), the violent acts on children depicted in the material, a lack of understanding that his behaviour was wrong and that he manipulated images to place himself in sexually graphic situations with children.

The Court also considered the appropriate range for a first-time offence to be the mandatory minimum sentence (six months at the time if proceeded with by indictment) to two years in prison. [ 87 ] In R v Burke , 2015 SKPC 173 , 482 Sask R 13 [ Burke ], a 34-year-old first-time offender was sentenced to three years in prison when the applicable mandatory minimum was six months when proceeded with by indictment. The collection of material consisted of 4,905 child pornography files, some highly encrypted, including videos. Major efforts were undertaken by the offender to acquire it.

The material itself was exceptionally aggravating and included torture of a one- to two-year-old child. The offender was married and had worked as a realtor. He seemed to have no insight into his problem, nor did he express genuine remorse. Due largely to the nature of the content, the sentence imposed exceeded the upper end of the sentencing range, namely, two years’ imprisonment, cited by the Court. [ 88 ] In R v Swaby , 2018 BCCA 416 , 367 CCC (3d) 439 [ Swaby ], an appeal by the Crown of the offender’s conditional sentence order (CSO) for a s. 163.1(4) (

b) offence was dismissed by the British Columbia Court of Appeal. The mandatory minimum sentence at the time was 90 days’ imprisonment. Although the Court held the minimum to be unconstitutional and upheld the CSO, this case can readily be distinguished from those of Mr. Brown and Mr. Stout. Mr. Swaby pled guilty to possession of a large collection of child pornography – 400 videos and 480 images. The Court found that the mandatory minimum was unconstitutional as it applied to Mr. Swaby (as well as to reasonable hypothetical offenders). This was because Mr.

Swaby, who was 23 at the time of the offence and 28 at the time of the appeal, suffered from a significant level of cognitive impairment. This impairment contributed to Mr. Swaby’s commission of the offence and reduced his moral culpability. Mr. Swaby knew that his actions were wrong, but because of his impairment, he was unable to appreciate the gravity of his actions. The special personal circumstances of Mr. Swaby set this case apart from those of Mr. Brown and Mr.

Stout. [ 89 ] While all of the foregoing cases are helpful, they appear to reflect a wide range of sentences for a first-time offender in cases generally similar to those before the Court, albeit with some variations. [ 90 ] O’Brien , Cloutier and Mitchell , M.O.C. , and John-CA , which imposed sentences of less than one year’s imprisonment, are out-of-province court decisions and, except for one, at the provincial court level. These cases are distinguishable in that they do not involve the additional aggravating factors of the nature present in the cases before the Court: for Mr.

Brown it is the online sharing of images, and for Mr. Stout it is the viewing of videos in a public library rendering them visible to a member of the public. [ 91 ] O’Brien is also distinguishable in that there was an offence-specific risk assessment finding the offender to be of low risk; the risk assessments for Mr. Brown and Mr.

Stout are not offence specific, leaving their offence-specific risk undetermined. [ 92 ] In Cloutier and Mitchell , the offenders both received reductions in their sentences for having spent significant periods of time on strict bail conditions of house arrest. [ 93 ] In M.O.C. the Court treated the offender’s age and poor health as mitigating factors.

The case was also decided when the mandatory minimum and maximum sentences were lower than at present. [ 94 ] In John-CA the offender received credit for his extensive rehabilitative efforts, and the Ontario Court of Appeal commented that were it not for such efforts, the sentence could have been much higher. Neither Mr. Brown nor Mr. Stout have undertaken any rehabilitative programming. [ 95 ] With respect to first-time offenders, the Saskatchewan cases of MacDonald and Burke cite a sentencing range spanning from the mandatory minimum of six months if proceeding by indictment, to a maximum of two years.

These cases were decided when the applicable mandatory minimum and maximum sentences were lower than the current ones if proceeded with by indictment, which are now one year and 10 years in prison respectively. [ 96 ] All of the above-mentioned cases predate Friesen and a number of them predate the 2015 increase in the maximum sentence for a

section 163.1(4) offence when proceeded with by indictment. [ 97 ] The Supreme Court provides guidance in Friesen to ensure that sentences for sexual offences against children correspond to Parliament’s legislative initiatives and society’s contemporary understanding of the gravity and harmfulness of such offences. Courts are

justified in departing from dated precedents that do not reflect these considerations. At paragraph 110, the Supreme Court states that upward departure from prior precedents and sentencing ranges should occur for sexual offences against children. [ 98 ] Therefore, while considering the sentences imposed in previous cases, this Court must bear in mind that the current sentencing regime for the offences before the Court is more severe than what was in place for many of the previous cases and the Court considers this as, in the words of the Supreme Court, “shifting the distribution of proportionate sentences for the offences”. Sentence [ 99 ] In

summary, the offences of possession of child pornography before the Court are serious, constituting sexual offences against children. The moral culpability of each offender is high. Incarceration is required to address the seriousness of the offences and the high degree of responsibility of the offenders.

It is also required to meet the objectives of denunciation and deterrence, while taking into account relevant sentencing principles, including parity, and considering the aggravating and mitigating circumstances. [ 100 ] There are both aggravating and mitigating circumstances for each offender as outlined previously. [ 101 ] The cases of Mr. Brown and Mr. Stout are comparable on balance. Considering the sentences imposed in the cases reviewed earlier, and in light of the pronouncements in Friesen , I am satisfied that a fit and proportionate sentence for each of Mr. Brown and Mr.

Stout is a one year period of incarceration followed by two years of probation. I make this determination without considering the mandatory minimum and based on the considerations previously discussed, including the relevant Criminal Code provisions, the jurisprudence, and the circumstances of the offences and of the offenders, including the aggravating and mitigating circumstances.

Conclusion [ 102 ] Having determined what constitutes a fit and proportionate sentence in the two cases before the Court, I am satisfied that deciding the constitutional question will not impact the sentences and so the constitutional issue is moot.

Adopting a similar approach to that taken in R v G.G., 2018 SKQB 169 , R v T.A.S . , 2018 SKQB 183 , and R v Dirksen , 2019 SKQB 140 , which are decisions of the Saskatchewan Court of Queen’s Bench where mandatory minimums for other Criminal Code offences were challenged based on s. 12 of the Charter , I decline to decide the constitutional question in the interests of judicial economy. [ 103 ] Each offender will therefore be sentenced to one year of incarceration followed by 24 months of probation on the following conditions: 1. Keep the peace and be of good behaviour; 2. Report to court as ordered to do so; 3.

Report to a probation officer within 24 hours of his release from a correctional facility and thereafter as directed and follow all lawful instructions of his probation officer; 4. Live at a residence as approved by his probation officer and not change that residence without the written permission of his probation officer or the court; 5. Present himself on demand at the door of his approved residence to any peace officer monitoring the provisions of any conditions; 6.

Not reside in any residence where there is a computer or internet access except with prior written permission of any other occupants of the residence, who are made aware of these conditions, and so long as any computer or computer-related device is password protected and kept in a secure, separate room; 7. Attend and participate in assessments and complete programming for sexual offending as directed by his probation officer, and not give cause to be discharged; 8. Attend and participate in personal counselling as directed by his probation officer; 9.

Not possess or use any device capable of storing data in a digital format, including but not limited to: computers, cellular telephones, digital cameras, or any device capable of accessing the internet, including a cellular telephone. Except: a. For a standard use cell phone which does not have internet capacity; or b.

Unless he is required by an employer (other than himself) to use a computer or other device that is owned and controlled by the employer, and being used in the course of his employment and only while on the employer’s premises, and with the informed consent of the employer and his probation officer; or c.

Unless he is participating in an educational program at a recognized educational institution, and he is required to use a computer or other device that is owned and controlled by the educational institution, and being used in the course of his studies and only while on the educational institution’s premises, and with the informed consent of the educational institution and his probation officer; or d.

For the purposes of seeking employment and only at an agency, such as Service Canada or similar, which one of the primary purposes is assisting individuals in locating employment, and only while on the premises of that location; 10. Shall not use or access the internet in any way, by any means, nor maintain an account with an internet service provider.

Except: a. Unless he is required by an employer (other than himself) to access the internet on a computer or other device that is owned and controlled by the employer, and being used in the course of his employment and only while on the employer’s premises, and with the informed consent of the employer and his probation officer; or b.

Unless he is participating in an educational program at a recognized educational institution, and he is required to access the internet on a computer or other device that is owned and controlled by the educational institution, and being used in the course of his studies and only while on the educational institution’s premises, and with the informed consent of the educational institution and his probation officer; or c.

For the purposes of seeking employment and only at an agency, such as Service Canada or similar, which one of the primary purposes is assisting individuals in locating employment, and only while on the premises of that location; 11. Shall provide the password, including fingerprint, to any computer or computer-related device that may be found in his possession or under his control, including a cellular telephone; 12. Not possess or access any pornography; 13.

Shall submit to a search of his person, residence, vehicle or computer or computer-related device found in his possession, without reasonable or probable grounds, by any peace officer checking to ensure compliance with the terms of this order; and 14. Attend all medical, psychiatric, and other related appointments and authorize any medical care providers to release records to his probation officer. [ 104 ] I make the following ancillary orders for each of Mr. Brown and Mr. Stout: 1. Pursuant to s. 487.051 of the Criminal Code there is an order to provide a sample of DNA for inclusion in the DNA Data Bank; 2.

Pursuant to s. 490.012 of the Criminal Code , there is an order to comply with the Sex Offender Information Registration Act , SC 2004, c 10 , for a period of 20 years; 3. A forfeiture order pursuant to s. 164.2 of the Criminal Code will be made in the form of the draft order filed with the court; 4. An order pursuant to s. 161 of the Criminal Code in the form of the draft order filed for a period of five years. _____________________ A. Crugnale-Reid, J