R. v. Bartley, 2021 ONCJ 360

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. Bartley , 2021 ONCJ 360 DATE: 2021 06 28 COURT FILE No.: Toronto – Old City Hall 18-15001143 BETWEEN: HER MAJESTY THE QUEEN — AND — DWAINE ALBERT BARTLEY

Before Justice Beverly A. Brown Heard on January 2, March 2, December 11 of 2020 and May 19 of 2021 Response to Constitutional Challenge and Reasons for Sentence released on June 28, 2021 Mr. Nathan Kruger.............................................................................. counsel for the Crown Ms.

Leah Shafran............................................................................ counsel for the accused BROWN, B., J.: Introduction: [ 1 ] The defendant, Dwaine Albert Bartley entered guilty pleas on January 2, 2020, to on Sept 23, 2017, without lawful excuse, make available child pornography, contrary to s. 163.1(3), and on the same date, possession of child pornography, contrary to s. 163.1(4) , of the Criminal Code . The Crown proceeded by indictment, and Mr. Bartley elected trial before this court.

Although the court had the recollection that the court had made an order banning publication on a previous date, this order was not properly endorsed on the information. Accordingly, this court made a s. 486.4(1) Criminal Code order banning publication. An agreed statement of facts was filed in evidence. [ 2 ] The investigation commenced after a child pornography image had been uploaded on Sept. 23, 2017 by Mr. Bartley via Kik, with his email address. Later investigation led the police to Mr. Bartley’s address, where a search warrant was executed. Police officers seized two Samsung phones, a tablet and disks.

The images which are before this court were located on one of Mr. Bartley’s cell phones. The second cell phone of Mr. Bartley was seized, but was password protected. This phone has been unable to be accessed by the police. [ 3 ] Essentially, there were images of child pornography on one of Mr. Bartley’s phones, together with videos, on the Kik application of his cell phone. Those images were admitted in evidence, and sealed as an exhibit. With respect to the charge of make available child pornography, there was one image.

On the other count relating to possession of child pornography, there were 39 images and 55 videos. [ 4 ] Submissions related to sentence were commenced on that date. The matter was put over for sentence, and subsequently adjourned on various dates during the Covid 19 pandemic. Subsequently, while the applicant has been awaiting sentence and as the court contacted the parties to impose the sentence, the applicant brought an application to challenge the mandatory minimum penalties for the offences in this case.

Counsel have filed facta, and put before the court authorities, on this point. [ 5 ] On a recent court date, the court advised the parties orally of the nature of its response to the constitutional challenge to the mandatory minimum penalty on the make available child pornography offence, and received further submissions from the parties regarding sentence. [ 6 ] These reasons set out the court’s response to the constitutional challenge and as well the sentence imposed by the court upon Mr. Bartley. Issues : 1.

Mandatory Minimum Penalty for Possession of Child Pornography: [ 7 ] The Court of Appeal for Ontario has ruled, in its judgment in R. v. John, 2018 ONCA 702 , that the mandatory minimum penalty for possession of child pornography, where crown proceeds summarily, is unconstitutional. Extending the reasoning of the Court of Appeal for cases where the Crown proceeds by indictment, this court would find that the mandatory minimum penalty of 12 months incarceration is unconstitutional, as it considers sentence for this offence. Both parties have agreed that this is the law following this judgment.

This means that there is no mandatory minimum penalty for this offence, and the range of sentence extends to a maximum of 10 years incarceration. The court will consider the imposition of sentence related to this count, which relates to 39 images and 55 videos, later in the reasons.

2. Mandatory Minimum Penalty for Make available Child Pornography: [ 8 ] In this case, there is a mandatory minimum sentence of imprisonment for this offence before the court, of 12 months jail, and a maximum punishment of up to 14 years jail pursuant to s. 163.1(3) for the offence of making available child pornography. There is no doubt that this is a more serious offence than the offence of simply possessing child pornography.

The process of making available to other people the child pornography which an accused possesses, is at the heart of the evil that has concerned the courts over the years, where children are re-victimized each time new people see child pornographic images. [ 9 ] For the offence of make available child pornography, there has been no appellate ruling which is binding upon this court.

Before dealing with this constitutional challenge, it is to be noted that as a judge of the Ontario Court of Justice, also known as a Provincial court, this court is not empowered to make formal declarations that a law is of no force or effect under s. 52(1) of the Constitution Act, 1982 ; only superior court judges of inherent jurisdiction and courts with statutory authority possess this power. However, this court has the power to determine the constitutionality of a law where it is properly before them. ( See R. v. Lloyd , 2016 SCC 13 ).

However, as set out in para. 16 of Lloyd , this court has the power to determine the constitutional validity of mandatory minimum provisions “when the issue arises in a case” that is before the court. In particular, the court stated, at para. 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 [page147] 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. [ emphasis added] [ 10 ] As a result, prior to any consideration by this court of the applicant’s constitutional challenge to the mandatory minimum penalty for the make available child pornography offence, this court must deal with the question as to the lower end of the sentencing range applicable to Mr. Bartley.

As directed by the Supreme Court of Canada in Lloyd , if the mandatory minimum penalty of 12 months jail does not materially exceed the bottom of the sentencing range applicable to Mr. Bartley, the court can decline to consider the constitutionality of the provision. [ 11 ] This case is somewhat complicated in that both the Crown and defence have taken a global sentencing position, that there be one sentence imposed, and that it be concurrent on the other count.

Originally, before the defence raised the challenge to the constitutionality of the 12 month minimum incarceration for the make available count, the defence had submitted that the 12 month minimum term of incarceration was appropriate for both counts, again, concurrent on the second count. The Crown had submitted that a 16 month term of incarceration was appropriate, concurrent on the second count. [ 12 ] After the defence raised the constitutional challenge to both counts, the defence submitted that the sentence that should be imposed on Mr.

Bartley is one of a 3 month intermittent sentence, after reducing its sentence position of 6 months jail as a result of the Covid 19 pandemic. The Crown maintains its original position at the time of the guilty plea, that there be a 16 month global sentence of incarceration imposed, together with probation and ancillary orders. [ 13 ] The parties are quite far apart as to their sentencing positions at this time. A.

What is the appropriate range of sentence in this case : [ 14 ] Following the guidance of the Supreme Court of Canada, and considering the approach to a global sentence in this case, the court starts its consideration by reviewing relevant facts regarding the sentence. (

i) Circumstances of the offence : [ 15 ] As noted above, the court first considers the admitted facts in this case. The make available child pornography was a colour

image of a little girl, approximately 6 years of age, who was nude. In the image, the girl is looking at the camera as she licks an adult penis. Mr. Bartley uploaded this image to Kik, using his user name, and the email address, on September 23, 2017. [ 16 ] A police investigation was later commenced, and this led to the execution of a search warrant at the accused’s apartment on February 14, 2018, (approximately 5 months later). During that search, the police seized Mr. Bartley’s two Samsung phones. The newer of the two phones possessed by Mr.

Bartley was password protected, and as a result the police have been unable to open the phone or look for images. Other seized devices consisted of a tablet, and discs, on which there were no child pornography images. On the older phone of Mr.

Bartley that was able to be opened, police located the following child pornography: - There were 20 videos of child pornography showing babies (children under the age of 2 years); - Of those 20 videos, 2 videos showed babies subject to bondage who were tied up or wearing a “strap on” device; - There were 35 videos of children over the age of 2 years; - Of those 35 videos, 1 video shows a child engaged in bestiality.

This child was blindfolded, naked and bound, with her extremities tied to the bed, showing bestiality (with a dog); - There were 3 images of babies (children under the age of 2 years); and - There were 36 images of children over the age of 2 years [ 17 ] The bondage in one image involved white rope binding the child’s extremities, to facilitate a sex act being anal and vaginal intercourse, after which there was ejaculation on the child’s stomach, which is an example of heightened depravity. [ 18 ] It is the Crown’s submission that the image of the child who was bound and involved in bestiality, a sex act with a dog, is at the extreme end of the range of depravity. [ 19 ] Another video submitted by the Crown to be particularly horrific shows the child being either anally or vaginally penetrated from behind while hunching over, while her face was in the toilet.

It is unclear as to whether there was water or other contents in the toilet. In any event this is another example of heightened depravity. [ 20 ] There was also an image of a fairly young pre-pubescent boy involved in forced fellatio with an adult male, who appears to express some amount of discomfort, another example of violence and depravity.

One image was of a baby in a crib, with the diaper removed, where an adult male was involved in vaginal stimulation, by touching the baby with the fingers and licking the baby, which the Crown submits is potentially at the lower end of the range of images in this collection. Many videos of pre-pubescent females showed oral sex on adult males, anal penetration of the child by a male penis, and oral sex on the girl.

One of the images depicted a pre- pubescent female involved with 3 nude adult males. [ 21 ] The characterization of the child pornography material relating to children who were not babies (children under the age of 2 years), was that generally the gender of the subjects is female, and the general age range is between 6 and 11 years. [ 22 ] A further examination of the cell phone which contained these images, revealed that some videos and images which were child pornography had been manually deleted, however some were still able to be recovered forensically.

A representative sample of the images and videos were shown and played in court, prior to those being sealed by the court. This court would note that many of those images showed the faces of the children. [ 23 ] It is to be noted, by this court, that these images were not classified pursuant to what has been referred as a classification system in the U.K. caselaw in Oliver & Ors, R. v. Oliver, Hartrey and Baldwin, [2003] 1 Cr App R 28, [2002] EWCA Crim 2766 . Some of the cases which have referred to this classification approach in Canada are set out below in the reasons.

However, this court would note as it has reviewed the consideration of that approach, that there were images in the case at bar in categories I, iii, iv and v, including the bestiality in the most extreme category of this classification system. [ 24 ] Overall, the Crown takes the position that in the spectrum of child pornography images in the case law, the images at the lower end are those of children modelling, potentially with the image focusing on a sexual organ or area, as opposed to a sexually explicit act.

The collection in this case was not at the lower end of the spectrum, but more towards showing overt sexual activity, and as well heightened depravity arising from the many images and videos relating to babies, bestiality, bondage, causing pain or heightened

degradation. While the image of bestiality appears to show the child laughing, the Crown submits that it is not clear as to whether the child was being tickled at the time, and that the laugh should not be interpreted as the child having a good time or experience. (ii) Circumstances of the offender : [ 25 ] The defence did not want a pre sentence report for Mr. Bartley. At that time the parties agreed as to a range of sentence, 12 months by the defence, and 16 months by the Crown. Accordingly, no presentence report was ordered by the court. [ 26 ] The court obtained fulsome information relating to Mr.

Bartley from the report of Dr. Mark Pearce, a forensic psychiatrist who did a very thorough report, and as well provided an addendum to that report, relating to some residual issues. The court also has additional information from the defence which is before the court. [ 27 ] Mr. Bartley is approximately 36 years of age. He also has a 9 year old son, whom he has not seen since his arrest. [ 28 ] Mr. Bartley’s parents, Beatrice and David, are still alive. He has a twin brother and a half brother. His family is supportive of him.

However, he described that his relationship with his parents “really isn’t much of a relationship”. He indicated they were very hands off, very strict. He explained he thought there was resentment, from being thrown out of the home at the age of 16 years. It appeared that his parents had become separated at one point, although appeared to continue living together. There were issues in their relationship. He and his twin brother had been asked to leave the family home “sometimes for the smallest things”. Some of this information came from the report of Dr.

Pearce, the contents of which are also noted below. [ 29 ] Mr. Bartley stopped school in grade 12, when he and his brother moved out of the family home, and he commenced working. At one point he worked as a security guard, and also at a grocery store. He later had a position working at Shopper’s Drug Mart, where he worked for 8 years before losing that job after there was a press release related to the subject charges. In that sense, he has suffered the loss of what was for him a long term position of employment, as a result of these charges.

While on bail, he attended George Brown College, the HVAC program, which he completed. [ 30 ] Mr. Bartley has worked, as noted by the exhibits, at Food Basics and Chicken Fil A. The defence provided to the court evidence relating to his prior employment positions, from Chicken fil A, from the fall of 2019, and from Food Basics, from May of 2019. [ 31 ] The defence has also filed a letter to Mr. Bartley from the Family Responsibility Office, with respect to his agreement to pay towards support arrears for his child, effective Nov. 8, 2019. [ 32 ] The defence submits that Mr.

Bartley submitted himself to a voluntary and invasive procedure relating to this assessment by Dr. Pearce. This report, dated April 30, 2019, was filed in evidence. [ 33 ] There is no indication of Mr. Bartley suffering from any disabilities or addictions. However in Dr. Pearce’s report, Mr. Bartley indicated he had been diagnosed with ADHD, although he was not prescribed any medication. He was not diagnosed with a learning disability. According to Dr. Pearce’s report, he has average intellectual abilities. [ 34 ] Mr.

Bartley reported that he started smoking marihuana at the age of 15 years, and began smoking 1 to 2 grams a day after that, that he came to rely on it, but he did not think it was involved in the offences. He described having used cocaine on a handful of occasions, and last used it a year or so prior to the interview with Dr. Pearce. Mr. Bartley reported that he suffered from depression. He self-harmed between ages 9 and 10, and 16 years. He also reported suffering from social anxiety. He is medically healthy except for suffering from mild asthma. [ 35 ] When asked to describe himself, by Dr. Pearce, Mr.

Bartley stated “I don’t really like myself to be honest with you”. He indicated he did not really have any friends. He indicated he has had a problem with his temper, and that his self esteem is very low. His mother described him as someone who needed treatment for depression, but not pedophilia.

[ 36 ] He saw Dr. Halman, a psychiatrist at Mt. Sinai Hospital, in August 2018. He reported a persistent depressed mood since he was the age of 10. He stated he got caught up in social media as an adult and was ashamed of the charges, and suffered from low self esteem. [ 37 ] When asked questions about the offence by Dr. Pearce, Mr. Bartley denied an attraction toward children, and had trouble explaining why he had sent child pornography. He said he “wanted to belong” and that perhaps that was why he “traded” the material. He spoke about depression, he knew it was wrong and he “fucked up”.

He also stated that he had made a horrific mistake and that it would never happen again. He indicated he was amenable to treatment. [ 38 ] He reported that he viewed internet pornography as an adolescent, including his fetish of wanting women to urinate on him. He also engaged in cross-dressing from time to time, once or twice a month, but stated he had not done so since he had enrolled in school. He had posted images of himself dressed up as a woman. He had an altar name, “Nicole”. [ 39 ] Mr. Bartley admitted he had first viewed child pornography on Kik n 2015 or so.

He stated he located it through the groups where he used to post pictures of himself. He used a cell phone when using Kik. He stated he probably should have been more disgusted with it than he was, that it just seemed so commonplace after a while. He admitted to trading the images, in the groups. He sent it because he felt other users wanted to see it. His alternate explanations for doing what he did including seeking attention online, maybe it was to be accepted by those people, that he really did not have any good explanation for doing it. He saved the images and videos to his phone.

When asked if he has an attraction to children, by Dr. Pearce, he responded he likes to think he does not but the fact he was involved in trading it worries him. He was involved in several chat groups. When asked, as noted on pg 11 of the report of Dr. Pearce why child porn is problematic, Mr. Bartley replied : “because it is morally reprehensible. They’re exploiting innocence and especially in this world, we need all the innocence we can get. It is just wrong to take advantage of someone who doesn’t know any better”. It was “definitely harmful” to the victims, physically and psychologically.

He planned to avoid viewing CP ever again; he stated “I’ll never have anything to do with it.” [ 40 ] In terms of relationships, he indicated he has had 2 or 3 serious relationships, but not been married or engaged. He had lived with 2 partners. He had had about 5 sexual partners, one of which had been a male, although he reported being of heterosexual orientation. A little over a month ago, defence counsel advised the court that Mr. Bartley is in a relationship with a woman, and the two are expecting a child in October of 2021.

He has been living with this woman, and the plan is for him to resume living with her after he serves his sentence, and the baby is born. [ 41 ] Overall, in terms of diagnosis, Dr. Pearce indicated in his report that it does not appear that Mr. Bartley suffers from a major mental illness, such as schizophrenia or bipolar disorder. He likely suffers from persistent depressive disorder, and alternatively could be suffering from an adjustment disorder. As well, Dr. Pearce opined that he suffers from a mild cannabis use disorder.

He has admitted to an interest in transvestism and autogynephila, and may also suffer from urophilia. He has no personality disorder. [ 42 ] A very key aspect of the report of Dr. Pearce relates to testing and risk. Phallometric testing directed by Dr. Pearce was uninterpretable. A diagnosis of pedophilia or hebephilia could not be excluded. Dr. Pearce indicated that it is not clear what risk he presents if any for committing a hands-on sexual offence. Nonetheless Dr. Pearce opined that Mr. Bartley is at a low risk for re-offence (future possession of child pornography charges).

The court is somewhat of a loss in having carefully read, multiple times, the report of Dr. Pearce and the addendum, in terms of understanding the basis for this opinion of low risk. Nonetheless, Dr. Pearce recommended sexual offender treatment programming, geared to those with possession of child pornography charges. If Mr. Bartley is permitted to use a computer, Dr. Pearce opined that his online activities should be routinely and randomly monitored to ensure he does not re-offend. It is notable that despite the low risk opinion of Dr.

Pearce, there is a suggestion that there be treatment and that monitoring of computer use by Mr. Bartley be performed. Dr. Pearce also indicated that Mr. Bartley would benefit from ongoing counselling to deal with his mood and proclivity towards marihuana. An antidepressant would help with his mood. [ 43 ] The defence has put before the court numerous character references, which include letters of support from his mother (Beatrice Bartley), his father (David Bartley), his brother (David Bartley), and his sister in law, Stephanie Gowlett. [ 44 ] Mr. Bartley has no prior criminal record. [ 45 ] Mr.

Bartley has also expressed remorse to this court.

(iii) Impact on victim and/ or community: [46] Pursuant to s. 718.2(a)(iii.1) of the Criminal Code, after January 14, 2013, the court must consider the impact of a crime on thevictim, and as considered by the Court of Appeal for Ontario, in R. v. A.G., 2015 ONCA 159 at para 69, and R. v. Taylor, (ON SC), [2004] O.J. No. 3429 at paras 41 and 42. In Taylor, the court held that a victim impact statement helps the judge tounderstand the circumstances and consequences of the crime more fully, and to apply the purposes and principles of sentencing in a moretextured context.

Specifically, s. 718.2(a)(iii.1) provides that the sentence should be increased or reduced to account for any relevantaggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, includingtheir health and financial situation. [47] The Crown has submitted that in the vast majority of child pornography cases, children who are depicted in the images are notidentified, and therefore there is no ability to obtain victim impact statements from them.

In this case, while many of the images of thechildren show their faces, their identities are not known to law enforcement and to the Crown. As a result, the Crown is not in a positionto obtain victim impact statements from the victims shown in the pornographic images. [48] The Crown has proceeded to tender community impact statements, which have been entered in evidence as Exhibits. 3 and 4.

This is permitted, pursuant to s. 722.2(1) of the Criminal Code, which provides : When determining the sentence to be imposed on an offender or determining whether the offender should be discharged undersection 730 in respect of any offence, the court shall consider any statement made by an individual on a community’s behalf that wasprepared in accordance with this

section and filed with the court describing the harm or loss suffered by the community as the result ofthe commission of the offence and the impact of the offence on the community. This evidence was not contested by the defence. [49[ In the community impact statement, prepared by the Canadian Centre for Child Protection Inc., by its General Counsel, MoniqueSt. Germain, it is noted that many victims of this exploitation have not been identified by police. Some may still be experiencing sexualabuse, some may not. Some may still be children and some may now be adults. Some may be deceased.

The creation of child sexualabuse material has a lasting impact on the community of victims, because the imagery is a permanent record of that abuse, and thoseawful moments can be and are often seen by others. Once created, images and videos are permanent in nature as they are often storedelectronically or converted to electronic format. Many victims struggle with the knowledge that the content is permanent. There is oftenno way for a victim to know who might have a copy of it, or to prevent it being seen by others. In that way, the abuse continues, aspeople want to see the child abused.

The online exploitation of sexual abuse exists in perpetuity and is limitless given the internet. [50] This statement describes some of the impacts experienced by victims who have been the subjects in child pornography. Thisgroup is described as the Phoenix 11. In the

summary of this report, it was noted that when the hands-on sexual abuse began for themembers of this group, 56% were under the age of 4 years, and 31% were between 5 and 11 years of age. Some 12% in the group wereover the age of 12 years. Other aspects of the demographics of this group were disclosed in great detail in the

summary. [51] Of the victims in the group, many have difficulty later in life with their own children as the victims suffer from post traumaticstress disorder. They have issues with respect to their online identity. Victims develop social anxiety, and difficulty encounteringstrangers fearing that a stranger might have seen their sexual abuse online. Some victims never want to have their picture taken for anypurpose, even including participating in a group picture.

Some cannot enjoy social media or being in public places. (iv) Evolution of sentencing for offences related to child pornography : [52] Both parties have submitted case law from many years ago for sentences which have been imposed for possession of childpornography, and make available child pornography. The court must be mindful however of the changes in law, both statutory andcommon law, over the last 10 years or so. [53] In 2003, Parliament provided that both possession and make available child pornography offences were hybrid.

For the offenceof make available child pornography, the penalty provisions were either as a

summary conviction offence, or if a procedure by

indictment to a maximum of 10 years incarceration. [54] For the offence of make available child pornography, two years later, in 2005, Parliament amended the sentencing provisions toprovide that where there was a

summary election, a minimum penalty of 90 days, and a maximum of 18 months incarceration. If theCrown proceeded by indictment, Parliament also introduced a minimum punishment of 1 year, and kept the maximum punishment at 10years incarceration. [55] Seven years later, in 2012, Parliament increased the penalty for this offence where the Crown proceeded summarily, being aminimum punishment of 6 months, and an increased maximum punishment of 2 years less a day incarceration.

Parliament did notchange the sentencing range for an indictable election for this offence. [56] In 2015, Parliament passed Tougher Penalties for Child Predators Act., which raised the penalty for this offence to make it astraight indictable offence, with a maximum penalty of 14 years and a minimum penalty of 1 year incarceration. [57] For the offence of possession of child pornography, from 2003, the offence was subject to the

summary conviction range ofpunishment, or if by indictment to a maximum of 5 years incarceration. In 2005, Parliament increased the penalty for

summaryconviction election to a minimum punishment of 14 days incarceration, and a maximum of 18 months incarceration. Where the Crownproceeded by indictment, the range was a minimum punishment of 45 days incarceration, and a maximum of 5 years incarceration. In2012, Parliament again sent a signal by increasing the minimum penalty, for both

summary and indictable elections. For a

summaryelection, an offender was subject to the similar maximum of 18 months incarceration, but the minimum punishment was increased to 90days incarceration. Where the Crown proceeded by indictment, the minimum penalty was increased to 6 months incarceration, and themaximum was kept at 5 years incarceration. In 2015, Parliament passed the Tougher Penalties for Child Predators Act, which amendedthe penalty provision for this offence.

Although it remained a hybrid offence, where the Crown proceeds summarily, the maximumpunishment remained at 2 years less a day, and the minimum punishment was increased to 6 months incarceration. Where the Crownproceeds by indictment, the penalty was increased to a maximum of 10 years, with an increase to the minimum penalty of one yearincarceration. [58] Parliament has sent recurring very strong signals, that it seeks to have higher sentences imposed for make available childpornography, and possession of child pornography, over the many years that these offences have been in existence.

There is no doubtthat Parliament has by the amendments indicated that these offences must be considered for the imposition of greater penalties as a resultof increased penalties. There is no doubt that deterrence and denunciation are the paramount principles in relation to sentencing for theseoffences. [59] Similarly, there is no doubt that the Court of Appeal for Ontario and the Supreme Court of Canada have also by theirpronouncements sent a clear message to courts that the penalties for these offences should reflect the seriousness of these offences.

Implicitly the message is that prior sentences were not sufficient to address the paramount sentencing principles of deterrence anddenunciation. [60] The Court of Appeal for Ontario considered the quantum of sentence for offences related to child pornography in R. v. Inksetter,2018 ONCA 474 , [2018] O.J. No. 2702 (C.A.).

On May 23, 2018, in that judgment, the Court made a very strong declarationregarding the nature of penalties for make available and possession of child pornography, regardless of any subsequent declaration ofunconstitutionality of mandatory minimum penalties, stating at para. 24, and following : I am aware that there is an appeal pending in this Court in R. v. Cristoferi-Paolucci, 2017 ONSC 4246, [2017] O.J. No. 4341,challenging the constitutionality of the mandatory minimums for possession of, and making available, child pornography.

However, evenif the mandatory minimums are declared of no force and effect, Parliament's legislative initiatives signal Canadians' concerns regardingthe increasing incidence of child pornography. Sentencing decisions that precede these amendments must be viewed with some caution. … 27 A longer sentence on the count of "make available" child pornography than for the count of "possession" is warranted because bymaking images and videos he downloaded available to others via the internet, the respondent contributed to the further victimization ofthe children depicted in the pornographic images.

In my view, a sentence of three years imprisonment on the count of "possession" ofchild pornography and three and one half years imprisonment on the count of "make available" child pornography, to be servedconcurrently is fit in these circumstances, which include the early guilty plea and other mitigating factors identified by the trial judge. The size of the child pornography collection in Inksetter was far beyond that in the case at bar.

The Court allowed a Crown appeal froma provincial sentence to a penitentiary sentence for the offences. [61] It is interesting to note that the Court of Appeal for Ontario had before it in 2018 the case of R. v. John, 2018 ONCA 702, whichwas released on September 4, 2018. In this case, the court ruled that the mandatory minimum penalty of 6 months jail for possession ofchild pornography, where the Crown proceeded summarily, was unconstitutional.

The court considered a reasonable hypothetical relatedto an 18-year-old's friend who forwards to him a sext from the friend's 17-year-old girlfriend without her knowledge, and the 18-year-oldkeeps the sext on his phone but does not forward it, in making that declaration. The court held that most members of the communitywould consider a six-month jail sentence a substantial interference with individual liberty and would find it intolerable that such apunishment could be applied to this behaviour, especially given the number of images/videos involved (one single image), the nature of

the image in question (lawfully self-created), the manner of acquisition (passive recipient) and the nature of the offender (young adult). The court struck down the mandatory minimum of 6 months jail for the offence in the Criminal Code . It is interesting to note that the circumstances of the offence before that court were quite different from the reasonable hypothetical.

The court upheld the 10 month incarceration sentence imposed in that case, where the crown had proceeded summarily, and the collection consisted of 89 unique videos and 50 unique images of very young children being subjected to anal and vaginal penetration. The sentence was proportionate to the gravity of the offence and the accused's degree of responsibility without regard to the mandatory minimum and, but for his considerable efforts at rehabilitation, the Court indicated that the sentence could have been much higher.

It is also notable that the court stated in para 41: The mandatory minimum is entirely unnecessary. This court has recently emphasized the importance of denunciation and deterrence for any offence involving abuse of a child, and that those principles are the primary principles of sentencing applicable for such offences involving child pornography: R. v. Inksetter (2018), 141 O.R. (3d) 161 , [2018] O.J. No. 2702 , 2018 ONCA 474 , at para. 16 .

The court also stated in relation to the sentence appeal which it dismissed, at paras 44 and 45 : [44] …He has suffered from serious mental health problems for which he was inadequately treated. At times he was suicidal. He has pursued a course of psychotherapy with a view to dealing with his problems. The appellant is employed and is continuing counselling. He is remorseful, and no risk factors have been identified requiring further treatment. [45] Despite these mitigating factors, the size and nature of the appellant's collection is a seriously aggravating factor.

The appellant had possession of 89 unique videos and 50 unique images of child pornography. He actively sought out these images and videos. His collection included images of children as young as four years old, and some perhaps as young as two or three years old, subjected to anal and vaginal penetration with sex toys and adult penises. This is terrible abuse of young children. In R. v. Lynch-Staunton , [2012] O.J.

No. 313 , 2012 ONSC 218 (S.C.J.) , at para. 57 , Ratushny J. pointed out that 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, that viewing and possessing them encourages new child victims, and that as a consequence, jail terms will result. [page682] The Court further stated : [46] But for the appellant's very considerable efforts at rehabilitation, the sentence imposed could have been much higher. [47] The sentence imposed was fit and proportionate to the gravity of the offence and the degree of responsibility of the offender without regard to the mandatory minimum.

The court dismissed the appeal from sentence. [ 62 ] This court would note that the nature of the collection in that case was comparable to the case at bar. However, in the case at bar there are what appear to be more types of depravity in images and videos which also relate to babies, being children under the age of 2 years. As well, there is bestiality in relation to a child older than 2 years, but relatively quite young. Rather than repeat the nature of the images, reference can be made to paragraphs [16] through [20] above.

The depravity in the case at bar shows more depravity than appears to be the case in this Court of Appeal case of John . [ 63 ] Most recently, in 2020, the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9 at para. 5 , made a pronouncement with respect to offences relating to children: Third, we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase.

Courts must impose sentences that are proportional to the gravity of the sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large.

Further, the Court reached out to make it clear it intended that its comments be considered in relation to other types of offences involving children, at para. 44, noting : Courts may also draw upon these principles when imposing sentences for child abduction and human trafficking offences where the victim is a child and the factual foundation for the conviction involves sexual violence or exploitation.

The Court specifically considered sexual offences against children in the age of technology, where there has been a proliferation of child pornography offences. The court specifically noted, at para 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 ). [ 64 ] Following the Supreme Court of Canada’s comments in Friesen , which echoed its earlier comments in 2001 in Sharpe , the Court has sent strong signals that for offences relating to child pornography, such as make available and possession of child pornography, sentences where children’s vulnerability are exploited, and which cause profound harm, should reflect those circumstances.

In Friesen , the Court noted that sentences must be proportionate to the gravity of the offences and degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives. Courts must take into account the wrongfulness and harmfulness of sexual offences against children in applying the proportionality principle, as it impacts on the gravity of the offence and degree of responsibility of the offender. The court reflected upon the wrongfulness of treating children not as persons with equal dignity, but as sexual objects to be used by adults, as they are exploited (see para 78).

The court noted that Parliament’s recognition for this profound harm has led to increases to sentencing for these offences, as it has determined that sentences for such offences should increase to match Parliament’s view of their gravity (see para 95). Parliament has shown that it wants such offences to be treated as more grave and punished more harshly than in the past (paras 96-97, and see also Lacasse , at para. 7). It has addressed this by increasing maximum sentences and prioritizing denunciation and deterrence in sentencing.

The Court was very clear as to the need for sentencing judges to respond to the increases in maximum penalties for these offences : 100. To respect Parliament's decision to increase maximum sentences, courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences.

As Kasirer J.A. recognized in Rayo in the context of the offence of child luring, Parliament's view of the increased gravity of the offence as reflected in the increase in maximum sentences should be reflected in [TRANSLATION] "toughened sanctions" (para. 175; see also Woodward , at para. 58). Sentencing judges and appellate courts need to give effect to Parliament's clear and repeated signals to increase sentences imposed for these offences. The Court explicitly directed that it was providing guidance to courts.

In that regard, it stated that there should be upward departure from prior precedents and sentencing ranges in order to impose a proportionate sentence. Relying upon Lacasse, the Court stated that sentences can and should depart from prior sentencing ranges when Parliament raises the maximum sentence for an offence and when society’s recognition for the harm arising from the offence has increased. Courts should not feel bound to adhere to a range that no longer reflects Parliament’s view of the gravity of the offence.

To be clear, the guidance provided is that sentences should increase as a result. (see paras 108-110). [ 65 ] Parliament has further prioritized denunciation and deterrence for offences that involve the abuse of children by enacting s. 718.01 , of the Criminal Code and as well by stating that where offences involve the abuse of a person under the age of 18 years, the court must give “primary consideration” to the objectives of denunciation and deterrence of such conduct when imposing sentence.

At the same time, the sentencing judge still has discretion to attach significant weight to other factors, including rehabilitation and Gladue factors, in determining a fit sentence, in light of the overall principle of proportionality. [ 66 ] The message from Parliament and appellate courts, quite clearly, is that the sentences imposed for offences of make available child pornography, and as well possession of child pornography, need to properly reflect the increases to the sentencing regime in the Criminal Code , and the gravity of these offences.

Sentences must also address the primary principles of denunciation and deterrence.

Sentences imposed many years ago did not properly address those factors. [ 67 ] And yet, where sentences have been imposed for the offence of possession of child pornography, where the Crown proceeded by indictment and there was a 12 month sentence of imprisonment, concerns have been raised in decisions (although not the Court of Appeal for Ontario or Supreme Court of Canada), that those cases might have “raised the floor” for low level types of possession offences, and that in subsequent cases the court should be concerned to not rely on those cases as they might have resulted in lower sentences had the unconstitutionality been decided earlier. [ 68 ] There is somewhat of an inconsistent theme.

Appellate courts have sent a strong signal that sentences be sufficient to address the greater gravity of the offences, as reflected by increasing the maximum penalties by Parliament in the Criminal Code for these offences. In addition, the primary principles of deterrence and denunciation, must be considered in crafting a proportionate sentence. On the other hand, as courts are guided by the range of sentence imposed in the past, courts look to historical decisions.

A concern has been raised that if a sentencing court was guided by a mandatory minimum penalty later determined to be unconstitutional, the sentence imposed at

that time may have effectively raised the lower level of sentencing range for that offence. In other words, had there been no mandatory minimum sentence in place at that time, the sentence imposed might have been notably lower. [ 69 ] In terms of considering reported cases as a backdrop for determining a sentencing range, this court considers the Supreme Court of Canada judgment in R. v.

Lacasse , 2015 SCC 64 , at para. 57 , which stated that “sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives.” It is important to bear in mind that sentencing ranges should not function as straitjackets on a trial judge’s discretion, but rather as “historical portraits” for the use of sentencing judges, who must still exercise discretion in each case.

Ranges must sometimes be expanded. [ 70 ] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Pursuant to s. 718.2 (

b) of the Criminal Code , a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. For that reason, the court looks to sentences imposed by other courts, and considered at appellate courts, to comply with this sentencing principle. Although that is a goal which this court strives to achieve in imposing sentence, it is sometimes difficult to compare cases before the court with reported cases.

Nature of offence : [ 71 ] In crafting a proper sentence suitable for the offence and the offender, this court first considers the nature of the offence before the court. [ 72 ] As noted above, although two phones of Mr. Bartley were seized, only one was opened and was the subject of the two charges before this court. The phone which was the subject of the images in this case was the older phone of Mr. Bartley. The newer phone has not been able to be opened.

The child pornography content on this older phone was far less in quantity than in the vast majority of reported cases of child pornography possession and make available child pornography offences. There are simply not a lot of decided and reported cases dealing with collections similar to the number in this case. The Crown takes the position that the nature of the collection in this case was of heightened depravity, and that as a result this should be reflected in a higher sentence than if the images and videos were of less depravity.

The images also contain many related to babies, which are not often before the court for these types of offences. [ 73 ] By and large, there are numerous key components this court would note, in comparing the nature of the offence in this case, with other reported sentencing cases. Those are as follows : (

i) Does the case have an offence of make available child pornography? The case at bar includes that offence, and it is important to note that of the two offences, it is clearly the most serious, being a straight indictable offence with a 14 year maximum term of incarceration. The offence of possession of child pornography, where the crown has made an indictable election, provides for a maximum of 10 years incarceration .

If the reported case does not involve a sentence for the make available offence, it is potentially less serious as an offence; In addition, the Court of Appeal for Ontario in Inksetter , supra, stated at para 27 : A longer sentence on the count of "make available" child pornography than for the count of "possession" is warranted because by making images and videos he downloaded available to others via the Internet, the respondent contributed to the further victimization of the children depicted in the pornographic images. (ii) What is the size of the collection, or in other words the number of images and/or videos ?

The case at bar involves a collection which is smaller than most of the cases submitted by the Crown, although larger than many of the cases submitted by the defence. Although the Crown has submitted that the size of the collection is not an important factor, it is clear that the reported cases, have distinguished the size of the collection as a distinguishing feature; (iii) What is the age of the children depicted in the images ? The case at bar involves babies, being children under the age of 2 years, and as well children in the pre-pubescent age range.

Comparisons of cases seem to distinguish the case being a more serious offence when babies and younger children are depicted;

(iv) Where would the collection, in terms of the nature of the images and videos be placed, on a scale? While there are some of theless serious images, being photos which appear to show poses of children and depicting sexual areas, it appears that the majority of thecollection before this court depicts children involved in sexual acts, including penetrative activity both vaginal and anal, together withoral sex. (

v) Does the collection have elements of heightened depravity, such as bondage, sadism and bestiality? These elements are clearlyaggravating features of the offence if this is contained in the collection. This aspect is clearly present in this case. As noted, although the size of the collection in this case might not be considered as aggravating, there are numerous aggravating factorsin terms of the nature of the collection. It is trite to indicate that each video contains within it the equivalent of many still images. Numerous images and videos in the collection depict babies, under the age of two years.

Other images are of children between 6 and 11years. There are numerous acts of depravity, bestiality and oral sex performed by a young child. Rather than repeat the nature of theimages, reference can be made to paragraphs [16] through [20] above. [74] There are essentially two lines of consideration of types of collections, setting out aggravating features. Justice Molloycommented, in R. v.

Kwok, (ON SC), [2007] OJ No. 457, on the various aggravating factors related to the nature ofthe offence, including whether there was also production or distribution of the pornography, and as it relates to the nature of thecollection, the size of the pornography collection and the nature of the collection (including the age of the children involved and therelative depravity and violence depicted). [75] As set out above, there is a unique approach to classifying child pornography images which has been adopted in the UnitedKingdom in 2002 in the decision of Oliver & Ors, R. v., [2002] EWCA Crim 2766, [2003] 2 Cr.

App. R. (S) 15 (BAILII), and lateradopted in Manitoba. (See, for example, R. v. Brooks (J.C.), 2010 MBPC 61, 263 Man. R. (2d) 186; and R. v. Lague (G.J.), 2013 MBQB32 at paras. 19, 32, 287 Man.R. (2d) 204.) In addition to these cases in Manitoba, there has been reference to this approach in the NovaScotia Court of Appeal case in R. v. Missions, 2005 NSCA 82. More recently, in Ontario, cases have also referred to this approach (SeeR. v. Levin, 2015 ONCJ 290 and R. v. Chislette, 2018 ONCJ 218. This U.K. approach ranks, in increasing order of severity, the contentof images and videos.

It classifies the content of pornographic images into five levels: (

i) erotic posing with no sexual activity; (ii) sexual activity between children or solo masturbation by a child; (iii) non-penetrative sexual activity between adults and children; (iv) penetrative sexual activity between children and adults; and (

v) sadism or bestiality. If one were to consider this classification, the case at bar includes one video of category (v), being sadism or bestiality. There was nocharacterization of subject videos and images using this classification in the case at bar. The court would note however, that in the caseat bar, 2 videos or images included children subject to bondage (tied up or wearing a “strap-on” sex toy). Twenty of the videos depictedbabies under the age of 2 years.

While the case at bar was not subject to any review by an officer or anyone else to see where the imagesand videos in the case at bar might fall within an Oliver classification scale, it is apparent that there are some images or videos of sexualactivity, bestiality and bondage.

Rather than repeat the nature of the images in the case at bar, reference can be made to paragraphs [16]through [20] above. [76] In terms of the size of the collection in this case compared to reported cases, this court would note that many cases submitted bythe Crown over various occasions to this court, include many where the number of images exceeds by a multiplier factor those in thecase at bar, and the sentences imposed were in excess of the sentence sought by the Crown in the case at bar. [77] In Inksetter, the Court of Appeal increased the maximum reformatory sentence imposed to a penitentiary sentence for a collectionbefore the court wherein: Ninety-five per cent of the material depicted actual penetration and other explicit sexual activity.

Some of the images of explicit sexualactivity involved children as young as one-year old. The images included bondage and bestiality. While the collection was significantly larger than the one in the case at bar, the aspects of the images that have been described are in a

similar category of babies, depicting actual penetration or other explicit activity, and including bondage and bestiality. The court repeated the comment of the trial judge that the collection of images was at the extreme end of the spectrum.

There is no doubt that the nature of the collection in the case at bar given the aspects of heightened depravity noted herein, also approaches the extreme end of the spectrum, although the quantity of images is far less than in Inksetter . [ 78 ] The court bears in mind these features and factors relating to the nature of the offence in considering the cases before this court to establish a sentencing range. The court also bears in mind numerous factors which have been outlined by Justice Molloy in Kwok , below, as mitigating factors, in comparing reported cases.

Some of the significant factors are whether there was a guilty plea, the youthful age of an offender, the otherwise good character of the offender, the extent of insight of the offender, any genuine remorse of the offender, whether offender has taken treatment or willingness to take future treatment, and the extent of suffering already in terms of family, career or community occasioned by the discovery of the offence. In this case, there was a guilty plea, which is potentially the greatest mitigating factor in this case. The other factors are addressed in these reasons.

Cases submitted by the defence as to the sentencing range : [ 79 ] The court commences with an examination of the low end of the sentencing range. In that regard, the court reviews carefully and considers the sentencing cases put before the court by the defence. These cases potentially set out a lower end of a sentencing range for this case. They are submitted as a backdrop for the defence submission that the proper sentence should be 3 months jail, intermittent (after reducing from a 6 month sentence due to considerations arising from the Covid 19 pandemic) together with a 2 year probation order.

This court would make the following observations, as to this court’s consideration whether those cases are relevant to a sentencing range for this case. [ 80 ] Firstly, the defence relies upon R. v. Dumoulin , 2013 ONCJ 425 , wherein a 6 month incarceration sentence was imposed.

There were more images in that case than in the case at bar, but this court would heed the comments of the Supreme Court of Canada in Friesen to exercise caution in relying upon such a dated decision, prior to Parliament passing in 2015 the Tougher Penalties for Child Predators Act amending and increasing sentences for the subject offences. [ 81 ] In the cases released later which were submitted by the defence, the court notes the following. In R. v. Morrison , 2019 ONCJ 262 , the defendant was only charged with possession of child pornography.

While the court did find it an aggravating factor that the defendant made available images on 3 occasions, those actions were not the subject of a finding of guilt or conviction. Further, there were only 11 images and they were at the lower end of the spectrum of depravity. Essentially they were “posing” photographs. The defendant was 59 years old, on a disability pension and had participated in counseling. He also suffered from various physical ailments, some of which were relatively serious.

While a sentence of 100 days incarceration was imposed, this court finds that sentence was for a less serious offence than the case at bar, in relation to an offender who was an older man. The offender had also done some rehabilitation and had relatively serious physical ailments. It is not very helpful in considering a sentence for the case at bar. [ 82 ] In R. v. Woolf , 2019 ONCJ 376 , the court considered sentence for the sole offence of possession of child pornography, where there were 65 images. The defendant was 66 years of age, and he was a well-known artist and educator, teaching at college.

His marriage ended, and he lost his career and social status, after the offence was revealed. There was a smaller collection and the images were at the lower end of the extreme, as compared to this case, being “posing” photographs. The age range of the children was 5 years until teenage years. There were no images of babies. One child appeared posed in relation to fellatio. There was absolutely no evidence of making any of the images available. There were numerous mitigating factors. The court imposed a 90 day jail sentence.

This case is not helpful to the court in determining a range of sentence for this case. [ 83 ] Finally, in R. v. Doucette , 2021 ONSC 371 , the court considered a charge of accessing child pornography where 4 images had been streamed in a zoom room on one occasion. There was evidence of possession of 9 other images, although they were not the subject of a charge or conviction. He did not distribute child pornography. The images were described as depicting adults engaging in sexual acts with children, including oral and anal sex.

There was no indication of any heightened depravity, or the involvement of babies, such as in the case at bar. The defendant was 53 years of age, and had been diagnosed with bipolar affective disorder, together with generalized anxiety disorder and substance abuse disorder. He was addicted to methamphetamine and HIV positive. The offences appeared tied to his mental disorder, and the trial judge found that he had made progress in relation to his mental disorder and drug use. On a

summary conviction appeal, the court found the 6 month incarceration mandatory minimum penalty to be unconstitutional, and held that a 4 month incarceration sentence would have been appropriate. However, in the circumstances at the time of the appeal, in light of credit for custody, and his physical condition and the ongoing Covid 19 pandemic, the court converted the sentence to a conditional sentence for the remaining number of days of what would have been the 4 month sentence. This court finds that this case is quite different in terms of the nature of the offence, and the circumstances of the offender, such that it is not helpful in setting a range of sentence for the case at bar.

[ 84 ] The case of R. v. Alexander, 2019 BCCA 10 , involved only possession of child pornography. There was no offence of make available child pornography. The offence was committed prior to the 2015 Criminal Code amendments to the sentencing provisions for child pornography. There was a larger collection, and the predominant age of the children was 8 years and older, although there was one image of a child between 1 and 3 years of age. There was one image that involved bondage. The images ranged from posing images, to the penetrative sexual activity between children and adults.

The content of the videos was sexual assault of female children by vaginal and anal intercourse. The Court of Appeal upheld an 8 month incarceration sentence as appropriate. This court would note that the sentence was considered in relation to the prior sentencing regime for the offence, and that the collection appeared to have less images of babies and images of depravity and bestiality, as compared to the case at bar. [ 85 ] On an earlier occasion, the defence initially relied on a different series of cases which included the following reported sentencing cases. [ 86 ] In R. v Dawkins, [2019] O.J.

No. 5802 , it appears that there were 3 images on a laptop, and one video on a USB in a backpack which was of a 2 to 4 year old child being vaginally, anally and digitally penetrated by a male. An 8 month incarceration sentence was imposed. This collection was much less serious than the case at bar. [ 87 ] In R. v. Wang , [2016] OJ No. 5582 , the court considered only the offence of possession of child pornography committed in 2010, in relation to 5 videos and 3 images on a desktop computer, which related to girls aged 7 to 14 years engaged in sexual acts including intercourse with adults and children.

A 9 month incarceration sentence was imposed. Obviously the collection in that case was far less serious than the case at bar, and the offence was prior to 2015. [ 88 ] The case of R. v. Bools , [2015] OJ No. 2979 , related to a 2011 offence of possession, one offence of make available child pornography, and one of make child pornography. There were 58 images located, and it appears there were 26 accessible to others. There were no videos. There were no images of violence and no images of children engaged in sexual acts with adults.

A large majority of the images were in the nature of posing images, which is at the lower end of the spectrum for child pornography. Being prior to the 2015 Criminal Code amendments, and relating to the low end of the spectrum for images, this case is not helpful in establishing a relevant sentencing range. [ 89 ] In R. v. Covert , [2015] OJ No. 3488 , the court considered a 2014 offence of only possession of child pornography. There were 27 images and 256 videos.

Thirty percent of the children were between 7 and 13 years of age, the remainder were between 14 and 16 years of age, although there were some with children as young as 5 to 6 years of age. There were no babies. Approximately 30 to 40% of the materials involved children engaged in explicit sexual activity, including vaginal and anal sex, oral sex and masturbation. There was no mention of any acts of depravity, bondage or bestiality or any images with babies. The Crown proceeded summarily on the charge, which was covered by the sentencing provisions prior to the 2015 Criminal Code amendments.

This case is not particularly helpful in setting a relevant sentencing range for this case. [ 90 ] By and large, this court finds that the above cases submitted by the defence are less serious in terms of the nature of the collection, and most if not all of the earlier cases submitted were governed by the sentencing provisions prior to the 2015 Criminal Code amendments. The sentences imposed, this court would find, would be below what this court would find appropriate for the sentencing range for this case.

Cases put before the court by the Crown as to sentencing range: [ 91 ] In reviewing the cases provided to the court by the Crown, the court would note that many of them are very different in terms of the size of the collection, by a multiplier factor.

The court is not summarizing the vast majority of those cases in the reasons as they do not add to the court’s consideration of the appropriate sentencing range for the offence in this case, for this offender. [ 92 ] This court is of the view, after reviewing all of the cases put before the court by the defence and Crown, on multiple occasions, before and after the constitutional challenge was raised, that most of the cases are not very helpful in setting a relevant sentencing range.

This arises from the differences in the size of the collection in this case, which is somewhat smaller in size than many other cases put forward by the Crown. At the same time, the collection in this case includes greater depravity than many of the cases put forward by the Crown. [ 93 ] This is a classic situation where there are not many cases similar to the one before this court.

This court is mindful of the principle of disparity, but also the cautionary statements of the Supreme Court of Canada in Friesen as it relates to potentially relying upon earlier sentencing cases which are out of step with the recognition of the greater gravity of the offence and need to consider increased sentences. The court also considers the comments of the Supreme Court of Canada in Lacasse as far as prior sentencing ranges not being “straightjackets”.

This court is mindful of the clear signals of Parliament, the Court of Appeal in Inkster and the Supreme Court of Canada in Friesen , to properly address proportionality in sentencing. It is not a simple exercise. Cases which set out the proper sentencing range :

[94] Overall, the court finds the following cases to be of assistance in considering a range of sentence for this offence and thisoffender. [95] In R. v. John, 2018 ONCA 702, the Court considered both a conviction and sentence appeal. The case involved only the offenceof possession of child pornography, which consisted of 50 unique images and 89 unique videos amounting to child pornography, storedon the appellant's computer. The Court held that the mandatory minimum penalty of 6 months incarceration, which was in effect at thetime of this offence, was unconstitutional.

Nonetheless, the Court upheld a 10 month term of incarceration imposed by the SuperiorCourt trial judge after the trial. The Court noted that the appellant was 29 years old at the time of the offence and 31 years old at thetime of sentencing. He had suffered from serious mental health problems for which he was inadequately treated. At times he wassuicidal. He had pursued a course of psychotherapy with a view to dealing with his problems. The appellant was employed and continuedcounselling. He was remorseful, and he had no risk factors that had been identified requiring further treatment.

The court held thatdespite these mitigating factors, the size and nature of the appellant's collection was a seriously aggravating factor. The appellant hadpossession of 89 unique videos and 50 unique images of child pornography. He actively sought out these images and videos. Hiscollection included images of children as young as four years old, and some perhaps as young as two or three years old, subjected to analand vaginal penetration with sex toys and adult penises. This is terrible abuse of young children.

The court further stated that but for theappellant's very considerable efforts at rehabilitation, the sentence imposed could have been much higher. It is notable that the casebefore this court includes the much more serious charge of make available child pornography, and that was not an offence before theCourt in John. As well, there were aggravating features in the nature of the collection, including many images being of babies, also withpenetration, and also with heightened depravity such as bondage and bestiality, as noted above.

In that respect, the case before this courtwould potentially be the type of offence where the sentence should be in excess of 10 months jail. Given the differences, arising fromthis appellate case, the court would find that the sentence for Mr. Bartley would be in excess of 12 month range, and potentially in the 14month range, depending on a more in-depth analysis of the factors relating to the offender. [96] Next, the court considers the case of R. v. Kingdon, [2020] O.J. No. 1004 (OCJ). In that case, the court considered sentence foran offender for the offence of make available child pornography.

In total, there were 121 images and 61 videos. They included toddlersbeing anally penetrated and a 7 year old girl being leashed and restrained. The other images involved either posed children, or childrenengaged in sexually explicit interaction with adult males. Several images involved children in the 2 to 4 year old age range. In that case,the court considered the U.K. classification set out in Oliver & Ors, R. v. Oliver, Hartrey and Baldwin, [2003] 1 Cr App R 28, [2002]EWCA Crim 2766.

The court noted that categories 3 and 4 of Oliver [(iii) non-penetrative sexual activity between adults and children;(iv) penetrative sexual activity between children and adults ] were engaged. The court noted that there had been a Superior Courtdecision striking down the 12 month mandatory minimum term of incarceration penalty for make available child pornography offence.This court has also considered Superior Court case law put before the court by counsel in the case at bar, considering the constitutionalchallenge. The defendant had no prior criminal record and was a good candidate for rehabilitation.

The court nonetheless imposed a 15month incarceration sentence for the subject offence. The court also made a recommendation that the sentence be served by the offenderat the Ontario Correctional Institute (O.C.I.) for treatment. The offence in this case was committed in 2018. The collection in the case atbar is more aggravating than in that case, although there were many more counts of the offence of make available child pornography. [97] The court has also considered the case of R. v.

Natal Carlos, 2015 ONSC 8085, affd. 2016 ONCA 920, which included chargesof make available child pornography and possession of child pornography. It is important to note that the offences were committed priorto the 2015 amendments to the Criminal Code which increased the sentencing provisions. The offender had a collection of 12 videosand 38 videos of incomplete files. The court upheld a 3 year penitentiary sentence for those offences. The offender had not pleadguilty. He was likely to face deportation following the conviction. Dr.

Pearce had noted that there was no significant arousal to thechildren stimuli, and concluded he did not meet criteria for pedophilia or any other paraphilia (sexual arousal or interest in children) andthat he was at a very low to low risk for re-offending for being in possession of child pornography.

In its review of case law put beforeit by counsel, many of which predated the 2015 amendments to the sentencing provisions of the Criminal Code related to childpornography, the trial judge in the review of cases from counsel, noted a case where it stated that it was an aggravating factor, that anoffender had a child of similar age to the children depicted in the images (see para. 56). The trial judge noted the mitigating andaggravating factors at paras 71 to 83.

Essentially, as listed by the trial judge as mitigating were that of the videos, while some were ofcomplete files, 9 files could not be opened, 38 videos were of incomplete files, and that the videos had been deleted within a 4 weekperiod. Of the images, the videos were more graphic than still images, showed very young children (although the age was not stated),involved in actual intercourse with adult males, with no indication of any heightened depravity, brutality or bestiality. The defendant hadno criminal record, a steady work record, and likely faced deportation.

A 3 year term of incarceration had been imposed. In the appeal,the court did not comment upon whether it is an aggravating factor when an offender has a child of an age similar to the ages of thechildren depicted in the images. At the Court of Appeal for Ontario, before the panel of Feldman, Watt and Huscroft, JJ.A., thispenitentiary sentence was upheld. It is interesting to note that Feldman J.A., who is one of the most senior judges on the Court of Appealfor Ontario, spoke for the Court in the often-quoted case of that court in earlier years, of R. v.

F. (D.G.), 2010 ONCA 27, which statedmany years ago, at paras 21 and 22 : [21] Over the last two decades, courts have been on a learning curve to understand both the extent and the effects of the creation anddissemination of child pornography over the Internet and to address the problem appropriately: see, for example, R. v. Sharpe, 2001 SCC2 , [2001] 1 S.C.R. 45, [2001] S.C.J. No. 3; Kwok.

A number of relatively lenient sentences had been imposed in cases wherechild pornography was downloaded or distributed, there was no sexual abuse or making of child pornography involved, and there weremany mitigating circumstances: see, for example, R. v. Schan, (ON CA), [2002] O.J. No. 600, 155 O.A.C.273 (C.A.); R. v. Weber, (ON CA), [2003] O.J. No. 3306, 175 O.A.C. 138 (C.A.); R. v. Kim,(ON CA), [2004] O.J. No. 119, 181 O.A.C. 88 (C.A.). However, in cases that involved making child pornography and child sexual

abuse, significant custodial sentences were imposed: see, for example, R. v. Jewell; R. v. Gramlick, (ON CA), [1995]O.J. No. 2213, 100 C.C.C. (3d) 270 (C.A.); R . v. W. (R.), [2001] O.J. No. 2810, [2001] O.T.C. 537 (S.C.J.). [page248] [22] Unfortunately, the incidence of this behaviour appears to be increasing and expanding as technology becomes more sophisticated,encouraging the production of child pornography and greatly facilitating its distribution.

The victims are innocent children who becomeprops in a perverted show, played out for an ever-wider audience not only of voyeurs but of perpetrators. [98] The many other cases put before the court by the Crown and defence are not particularly helpful in terms of developing a rangeof sentence for an offence and offender similar to the case at bar, and for that reason, despite the fact that they have all been carefullyreviewed by this court, they are not summarized nor cited.

The court has also noted that many of them were before the 2015 sentencingchanges to the Criminal Code, rendering them potentially less helpful, in light of the Supreme Court of Canada comments in Friesen. [99] Overall, the court finds that the lower end of the range of sentence for the case at bar is above 12 months, potentially at 14months, and runs up from that to a much greater penalty.

For a collection of a similar size, and potentially less depravity than in thecurrent case, but where there was no mitigation of a guilty plea, the Court of Appeal for Ontario has in 2016 upheld a 3 year penitentiarysentence in Natal Carlos.

The Crown submits that the proper penalty is 16 months incarceration, and considering that submission, thecourt is prepared to consider the range as running up to 16 months jail in this case, although it could run higher given Natal Carlos, theprinciples in Friesen, the increasing penalties in the Criminal Code, and the nature of the offence. [100] In this constitutional challenge, the defence has submitted in its reply to the Crown’s written submissions, that the appropriatesentence would be a total sentence (for all offences) of 6 months incarceration, concurrent on additional counts, reduced to one of 3months incarceration that it requests be served intermittently, in light of the Covid 19 pandemic.

The defence also submits that aprobation order of 2 years in length is appropriate. This is a sentence far below that requested by the Crown. In terms of the properrange of sentence for the offences before this court, and this offender, this court would find that the cases submitted by the defence andreferred to above, relate to cases which are less serious and or relate to cases where the blameworthiness or moral culpability of theoffender, or circumstances relating to the offender would justify a lower penalty. Accordingly this court would find that those cases ar

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