2019 QCCQ 3824, 2019 QCCQ 3824

Translated from the original French R. c. Lavigne-Thibodeau 2019 QCCQ 3824 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ST-FRANÇOIS LOCALITY OF SHERBROOKE “Criminal and Penal Division” No.: 450-01-102149-171 DATE: June 26, 2019 ______________________________________________________________________ PRESIDING: THE HONOURABLE ÉRICK VANCHESTEIN, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v. RÉMY LAVIGNE-THIBODEAU Accused and ATTORNEY GENERAL OF QUEBEC Impleaded Party ______________________________________________________________________ SENTENCING JUDGMENT AND JUDGMENT ON THE CONSTITUTIONALITY OF

SECTION 163.1(4.1)(

b) OF THE CRIMINAL CODE (

Section 12 of the Canadian Charter of Rights and Freedoms ) ______________________________________________________________________ OVERVIEW [ 1 ] The accused pleaded guilty to the offence of accessing child pornography between December 28, 2016, and May 16, 2017. [ 2 ] The evidence shows that the accused admitted having accessed child pornography one single time for no more than two minutes. [ 3 ] The Crown has requested the minimum sentence set out in s. 163.1(4.1) (

b) of the Criminal Code , which is imprisonment for a term of six months when the offence is punishable on

summary conviction. [ 4 ] The accused challenges the constitutionality of this minimum sentence, claiming that it infringes his constitutional right not to be subjected to any cruel and unusual treatment or punishment, as provided in s. 12 of the Charter . [ 5 ] He suggests that the fit and proportionate sentence in his case is to suspend sentence and put him on probation for a two-year period with supervision and community work.

In the event that the Court considers that a sentence of imprisonment is appropriate, it should not exceed 90 days so that he can serve his sentence intermittently and continue rebuilding his life and pursuing his education. [ 6 ] The Attorney General intervenes to support the constitutional validity of this minimum punishment. Given the nature and seriousness of this type of offence, she maintains that it is important to act on Parliament’s intention to take strong action to eradicate child pornography in Canada.

The minimum punishment provided may seem harsh, but it is not so disproportionate as to infringe s. 12 of the Charter . [ 7 ] After analysis and consideration of all the relevant factors, the Court finds that in the specific case of the accused, the minimum punishment is disproportionate. The just and appropriate sentence is to suspend sentence and put him on probation for a two-year period with supervised probation and 240 hours of community work.

BACKGROUND [ 8 ] On December 30, 2016, the company Pinterest lodged a complaint with the National Centre for Missing and Exploited Children after detecting an image that it believed to be child pornography. This image had been uploaded to its website on December 28, 2016. [ 9 ] The investigation led the police to conduct a search at the accused’s home on May 16, 2017. During this operation, the accused was arrested.

[ 10 ] At the police station, the accused cooperated and made an incriminating statement to the effect that he had viewed child pornography out of curiosity. He therefore acknowledged having accessed child pornography one single time. [ 11 ] There is no other evidence establishing that the accused accessed sites of this kind multiple times or that he possessed child pornography. ISSUES [ 12 ] This case raises the following issues: 12.1. Does the mandatory minimum punishment of six months’ imprisonment set out in s. 163.1(4.1) (

b) of the Criminal Code violate the right of the accused under s. 12 of the Charter not to be subjected to any cruel and unusual treatment or punishment ? 12.2. If it does, is this mandatory minimum punishment justified under the principles in s. 1 of the Charter ?

EVIDENCE PRESENTED AT THE SENTENCING HEARING [ 13 ] The investigator in the case explained that analysis of the computer seized at the accused’s home made it possible to find a single photo or graphic file of child pornography in the unallocated space of the hard drive, as well as traces of browsing with the word “preteen”. [1] [ 14 ] Concerning this file and the traces of browsing, the investigator could not indicate the viewing date or length of time, or the number of times viewed.

He found no sophisticated filing system on the computer, no hidden files of the same type and no conversations that could involve minors or sharing sites. The accused [ 15 ] The accused provided a statement when he was arrested by the police on May 16, 2017, the transcript of which was filed as R-3. He also testified before the Court.

There was no major discrepancy between the statement given to the police and his testimony before the Court. [ 16 ] From the whole, it emerges that the accused acknowledges having accessed child pornography one single time. [ 17 ] During his adolescence, he had started to become interested in the profile of pedophiles, chiefly by reading newspaper articles about them, since his father had committed sexual abuse … . He was trying to understand why an adult could be sexually attracted to children. [ 18 ] At the time of the events, the accused was going through a more difficult period in his life.

He felt depressed and visited websites where he accessed videos depicting acts of violence. [ 19 ] One of the violent sites he viewed led him to a discussion forum where he was sent a link to a website. [ 20 ] From the comments that appeared below this link, the accused suspected that the website in question contained child pornography. He nonetheless decided to go ahead and visit the site out of curiosity since he was trying to understand what would motivate an adult to be sexually attracted to children. [ 21 ] The accused confirmed that this site featured child pornography.

He did not like what he saw and even said that he was disgusted.

He quickly closed the web page. [ 22 ] Regarding the handwritten list of sites found in his room during the search, the accused said that the addresses probably came from suggested websites he visited, including sites with adult pornography, but he could not remember when he wrote them down and never tried to access them. [ 23 ] As for the photo uploaded to the Pinterest website and the photo found in the unallocated space on the computer’s hard drive, the accused stated that he had never seen these photos, nor had he downloaded them and he did not recall having them in his possession. [ 24 ] The same was true for the list of sites visited found in the unallocated space on the computer hard drive.

The accused stated that he had never visited those sites. At the time, he had no idea what the English word “teen” meant and did not make the connection between that word and the child aspect. [ 25 ] Even though he has not had any significant relationships, the accused states that he has never felt attracted to minor children. [ 26 ] He is now 23 years old, and he was 21 at the time of the events.

He has no criminal record. [ 27 ] He acknowledges that he has low self-esteem, a lack of confidence related to his father’s absence for most of his life. [ 28 ] His parents separated when he was a child, after his father committed sexual touching involving [...]. [ 29 ] The accused is dealing with a serious anxiety disorder, which has already caused him to suffer irrational fears. He has also had thyroid problems that affect him emotionally. These problems greatly slowed his education. [ 30 ] Since his arrest, he has been trying to take back control of his life. He is followed by his doctor and a social worker.

He is trying to complete his high school diploma at an adult education centre. He wants to gain the skills needed to join the army or obtain a trade

diploma in certain areas of interest. [ 31 ] He expresses sincere remorse and a deep sense of shame for what he has done. He genuinely feels bad about viewing child pornography and recognizes all the impacts related to this type of criminal activity. [ 32 ] The short time he spent in prison at the time of his appearance was enough to convince him that it was not where he wanted to be. [ 33 ] He has complied with all the strict conditions imposed by the Court over the past two years.

He has not been charged with any breach of his conditions. [ 34 ] If the Court sentences him to a term of imprisonment, this would have a very negative impact on his development, since he is in the process of rebuilding his life and he would probably have to start all over again. Mrs. Line Thibodeau [ 35 ] Mrs. Thibodeau is the accused’s mother. She describes her son as calm, introverted, kind and pleasant. In terms of being sociable, she finds that he is doing better and better; before, he was much more withdrawn. [ 36 ] The accused has a good relationship with her and with his brother and sister.

They see each other regularly. [ 37 ] He was monitored for depression because he had a very high level of anxiety, and this has naturally risen since his arrest. However, he is not an aggressive individual. [ 38 ] He has not had a relationship with his father for the past five years. Before that, he saw his father only rarely; it was left up to the father.

This created anger in the son toward his father, and he claims that his father has never done anything for him. [ 39 ] She confirmed that the accused had no interest in minor girls and that he was trying to start a relationship with women his own age. [ 40 ] She was informed of the present charges on the day of his arrest.

In her opinion, a term of imprisonment would devastate her son, since he is still fragile and it would have a major impact on all the efforts he has been taking. [ 41 ] The accused was dealing with a learning disorder but was now improving thanks to medication and the work he has done with the social worker.

THE ATTORNEY GENERAL’S EVIDENCE [ 42 ] The Attorney General submitted a notebook with extrinsic evidence of the damaging effects of child pornography on children. [ 43 ] This evidence also shows the extent of the phenomenon of online child sexual exploitation and the social consequences of this crime, which justify the use of effective methods to fight it, including the passing of harsh sentences. ANALYSIS [ 44 ] The accused challenges the sentence of six months’ imprisonment set out in s. 163.1(4.1) (

b) of the Criminal Code because it violates s. 12 of the Charter , in both his own personal situation and in the case of “reasonably foreseeable” situations. [ 45 ] The Attorney General maintains that this sentence may seem harsh, but it is legitimate and constitutional, given Parliament’s objectives. Citing the decision in Régnier , [2] the prosecution submits that the Court of Appeal recently stated that it is “time to give the legislative intent its full effect”: [3] [39] Obviously, the numerous legislative amendments to the child pornography provisions over the past 12 years tend towards harsher penalties.

They reveal Parliament’s clear intention to provide increased protection to children and to impose strict sentences on offenders who gravitate around this increasingly harmful industry, given the increasingly easy online access. [4] [ 46 ] How does this apply to the present case?

PRINCIPLES OF s. 12 OF THE CHARTER [ 47 ] The analytical framework of s. 12 of the Charter was defined by the Supreme Court of Canada in Smith [5] and has recently been clarified in Nur [6] and Lloyd . [7] [ 48 ] In regard to the applicable test, the Court of Appeal of Quebec describes it as follows in Caron-Barrette : [8] [ translation ] [68] To determine whether a sentence violates this provision, a two-step analysis with a specific component and a general component is necessary: [77] In

summary, when a mandatory minimum sentencing provision is challenged, two questions arise. The first is whether the provision results in a grossly disproportionate sentence on the individual before the court. If the answer is no, the second question is whether the provision’s reasonably foreseeable applications will impose grossly disproportionate sentences on others. … [69] The Supreme Court teaches that a “law will violate s. 12 if it imposes a grossly disproportionate sentence on the individual before the court, or if the law’s reasonably foreseeable applications will impose grossly disproportionate sentences on others.”

[70] The first step is to determine the fair and appropriate sentence to impose on the individual before the court, setting aside theminimum punishment. To do so, McLachlin C.J. shows that the principles of sentencing must be applied: … [71] Once the just and appropriate sentence has been determined, it must be considered whether the mandatory minimum punishmentis grossly disproportionate in comparison with a just sentence. The Supreme Court defines “grossly disproportionate” as follows: [24] This Court has established a high bar for finding that a sentence represents a cruel and unusual punishment.

To be “grosslydisproportionate” a sentence must be more than merely excessive. It must be “so excessive as to outrage standards of decency” and“abhorrent or intolerable” to society: Smith, at p. 1072, citing Miller v. The Queen, (SCC), [1977] 2 S.C.R. 680, at p.688; Morrisey, at para. 26; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 14.

The wider the range of conduct andcircumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whomthe sentence would be grossly disproportionate. [72] Following this exercise, if the court considers that the sentence imposed on the accused is grossly disproportionate, then inprinciple the analysis must stop there. (Footnotes omitted.) (Emphasis added by the Court.) WHAT IS THE APPROPRIATE SENTENCE IN THE PRESENT CASE? [49] To determine the just and appropriate sentence, the Court must consider the purpose and principles set out in ss. 718 to 718.2 ofthe Criminal Code, while ensuring that the sentence is proportionate to the seriousness of the offence and the degree of responsibilityand moral blameworthiness of the accused. [50] Concerning this type of offence, in Sharpe,[9] the Supreme Court explains Parliament’s intent in this regard: [34] Parliament’s main purpose in passing the child pornography law was to prevent harm to children by banning the production,distribution and possession of child pornography, and by sending a message to Canadians “that children need to be protected from theharmful effects of child sexual abuse and exploitation and are not appropriate sexual partners”: House of Commons Debates, 3rd Sess.,34th Parl., vol.

XVI, June 3, 1993, at p. 20328. … [72]

Section 163.1(4) of the Criminal Code evinces a clear and unequivocal intention to protect children from the abuse andexploitation associated with child pornography. It criminalizes the possession of a substantial range of materials posing a risk of harm tochildren. [51] In R. c.

Régnier,[10] our Court of Appeal stated that the sentencing range for crimes of this nature should be revised upward. [52] Furthermore, s. 718.01 of the Criminal Code provides that the Court must give primary consideration to the objectives ofdenunciation and deterrence when an offence involves the abuse of a person under the age of 18 years. [53] These are without question objectives to be considered when the time comes to determine the appropriate sentence.

However,this sentence must be proportionate and individualized. [54] Therefore, the Court must balance all these principles and objectives in determining a fair sentence for the accused in this case. [55] The offence committed by the accused was to have accessed a child pornography website one single time for no more than twominutes. [56] The Crown attempted to show more frequent usage than that reported by the accused by filing a list of websites found in hisroom and in the unallocated space of the hard drive of the computer.

This evidence does not convince the Court because it merelyconjures up vague suspicions and it is denied by the accused. [57] The accused explained that he had no knowledge of the image found.

Moreover, there was no evidence that the Internetaddresses indicated on the list or those found in the unallocated space of the hard drive were necessarily for child pornography websites.The Court has nothing tangible to dismiss the accused’s version, which it believes. [58] For sentencing purposes, the Court accepts only the offence admitted by the accused, which could not have been proved had henot made his statement to the police officers in May 2017. [59] The offence was committed in rather special circumstances, as the accused was affected by being abandoned by his father, whohad assaulted his sister.

He wondered about himself and whether he had inherited inclinations or deviances from his father’s side. [60] It was during a bout of depression that he had had done this exploration and quickly discovered that he had no sexual interest inminors and that he obtained no personal satisfaction from visiting this type of website.

[61] December 28, 2016 is identified as the date of the offence. This fact makes the accused’s version more plausible because it iscommon knowledge that the holiday season heightens depression in people who, like the accused, are experiencing personal difficultiesand feel abandoned by their father. [62] Furthermore, the accused expressed sincere remorse and was ashamed of having committed this act. [63] The file therefore contains numerous mitigating factors.

The accused: - Agreed to cooperate with the police officers at the time of his arrest, and the evidence would have been insufficient without hisincriminating statement; - Entered an unequivocal guilty plea in a timely manner; - Has no other charges of possession or distribution; - Was 21 years old at the time of the offence; - Has no criminal record; - Expressed his sincere remorse concerning his act; - Complied with all his parole conditions; - Started being seen by a physician and by a social worker; - Understands the seriousness of the offence and the impact on the victims; - Has experienced a strong deterrent effect by going through the judicial system; - Presents no risk of re-offending. [64] There are few aggravating factors other than those related to the nature of the offence itself.

However, his actions are at thelowest end of the scale of gravity for this type of offence. [65] Before the introduction of mandatory minimum penalties in 2005, the penalties that courts imposed for this type of offenceranged from discharges to intermittent or conditional sentences. [66] Since the minimum sentences came into effect, the courts have often imposed sentences with less than six months’ imprisonmentfor offences of possession and access to child pornography in cases where there is a much larger number of files and videos than in thepresent case.[11] [67] What objectives should be given priority in this case? [68] In the present case, a special deterrent effect was acquired through his judicialization.

As the accused explained, his arrest andinterim detention up to his release had a significant impact on him. In addition, for the last two years, he has complied with stringentparole conditions and has begun to seriously to turn his life around. During this period, he also became aware of his responsibility andrecognizes the harm caused to victims by this type of offence. [69] The objective of denunciation can also be achieved through measures other than imprisonment in certain cases, like that of theaccused.

In this regard, the Court of Appeal recently recalled the relative value of this objective in Lacelle Belec c. La Reine:[12] [translation] Consequently, even if the objectives of deterrence and denunciation are sought, sentencing should not cause the judge to ignore the otherobjectives; only balance will lead to a fair sentence: Harbour c. R., 2017 QCCA 204 at paras. 77-84. I repeat the very apt words of my colleague Doyon that “a sentence that is increased in length for reasons of deterrence without takinginto consideration the proportionality rule constitutes an error of law”: R. c.

Paré, 2011 QCCA 2047, at para. 46 and case law cited. Inaddition, my colleague wisely stated that the search for deterrence to the detriment of evidence that shows the merit of the objectives ofrehabilitation is inconsistent with the principle of individualization: R. c. Paré, 2011 QCCA 2047, para. 48. “Sentencing is an inherentlyindividualized process”: R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500 at para. 92. The teachings in Paré have been repeated time and again by this Court. Like other courts of appeal, it is reminded that the objectives ofgeneral deterrence and denunciation are uncertain and limited: R. c.

Harbour, 2017 QCCA 204 at para. 83; R. c. Brais, 2016 QCCA 356;R. c. Charbonneau, 2016 QCCA 1567; R. c. Fournier, 2012 QCCA 1330; R. v. H. (C.N.) (2002), (ON CA), 170C.C.C. (3d) 253 at para. 35 (O.A.C.); R. v. Biancofiore (1997), (ON CA), 119 C.C.C. (3d) 344 at para. 23 (O.A.C.);R. v. Wismayer (1997), (ON CA), 115 C.C.C. (3d) 18, 36 (O.A.C.) and R v.

Lee, 2012 ABCA 17 at para. 37 (opinionof Berger J.).[13] (Emphasis added by the Court.) [70] The Court must also consider the objectives of rehabilitation and reparations among those to be assessed, given the accused’syoung age, his regaining control over his life and the brevity of the act performed by him for the current offence. [71] The Court recalls that the sentence must be proportionate and individualized. As previously mentioned, the action taken by the

accused is at the lowest end of the scale for this type of offence, and it was committed by a young man during a difficult moment in his life. [ 72 ]

Section 731 of the Criminal Code is intended precisely for offenders like the accused who ask a court to evaluate the possibility of suspending the passing of sentence “having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission”. [ 73 ] The accused meets the criteria set out in s. 731 of the Criminal Code perfectly, and a fair and appropriate sentence in his case would be to suspend sentence, together with two years of supervised probation and 240 hours of community work to also satisfy the factors of reparations and general deterrence. [ 74 ] This sentence also complies with the requirement in s. 718.2 (

d) of the Criminal Code , namely “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances”. IS A minimum SENTENCE OF six moNTHS GROSSLY DISPROPORTIONATE TO THE FIT SENTENCE ESTABLISHED BY THE cOURT? [ 75 ] It seems very clear that there is a huge difference between what Parliament provides as a minimum sentence and what the Court considers to be fair punishment for the accused in the case.

Is this gap one of severity or disproportion? [ 76 ] In Swaby , [14] the Court of Appeal for British Columbia declared a 90-day minimum sentence to be inapplicable to an accused who possessed a large quantity of material but who was also intellectually disabled. This judgment is currently pending before the Supreme Court of Canada. [ 77 ] In R. v .

John , [15] the Court of Appeal for Ontario, in a case involving an even larger number of documents than here, declared the minimum sentence of six months, which was what was provided in 2014, to be unconstitutional if the offence is prosecuted by way of indictment. [ 78 ] Recently, in Quebec, in R. c. Delage [16] and R. c.

Gangoo-Bassant , [17] my colleagues from the Court of Quebec declared a minimum sentence of one year if the offence is prosecuted by way of indictment, as set out in that provision, to be unconstitutional. [ 79 ] In Lloyd , [18] the Supreme Court states that a grossly disproportionate sentence means that it is more than merely excessive: [24] … It must be “so excessive as to outrage standards of decency” and “abhorrent or intolerable” to society… .

The wider the range of conduct and circumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whom the sentence would be grossly disproportionate. [ 80 ] To paraphrase the Chief Justice in Lloyd , this grossly disproportionate test may also be reflected in the fact that most Canadians would be shocked to find that such a person could receive the minimum punishment provided [19] or, in other words, that an ordinary citizen would not understand this punishment. [ 81 ] The Court is convinced that a citizen who is well informed of all the facts in this case would consider it to be grossly disproportionate to impose six months’ imprisonment on a young man of 21 years who very briefly accessed a child pornography website under the specific circumstances described in this case. [ 82 ] As for the second step concerning reasonably foreseeable situations, the Court will exercise the judicial discretion suggested in Lloyd [20] and will not consider the question, given its conclusion on the impact of a minimum sentence on the accused.

IS THIS mandatory minimum SENTENCE JUSTIFIED UNDER THE PRINCIPLES OF s. 1 OF THE CHARTER ? [ 83 ] The analysis performed by the Supreme Court in Lloyd [21] in this regard adequately answers this question in the situation before us. [ 84 ] Parliament’s objective to protect children from exploitation is rationally connected with the imposition of a minimum sentence. [ 85 ] However, this legal rule does not minimally impair s. 12 Charter rights .

The words of the Supreme Court in this regard can be applied to the present case, with such adjustments as circumstances require: [49] [This sentence] … covers a wide array of situations of varying moral blameworthiness, without differentiation or exemption, save for the single exception in s. 10(5) of the CDSA. The Crown has not established that less harmful means to achieve Parliament’s objective of combatting the distribution of illicit drugs, whether by narrowing the reach of the law or by providing for judicial discretion in exceptional cases, were not available.

Nor has it shown that the impact of the limit on offenders deprived of their right is proportionate to the good flowing from their inclusion in the law. [22] [ 86 ] The Impleaded Party has not demonstrated that the mandatory minimum punishment under s. 163.1(4.1) (

b) of the Criminal Code is a reasonable limit to s. 12 Charter rights as can be demonstrably justified in a free and democratic society. FOR THESE REASONS, THE COURT: DECLARES that the mandatory minimum sentence of six months’ imprisonment under s. 163.1(4.1) (

b) of the Criminal Code is not applicable to the accused. SUSPENDS the passing of sentence and places the accused on probation for a two-year period on the following mandatory conditions

and specific conditions: - Report to the probation officer within 48 hours and subsequently as often as required by such officer; - Follow all the instructions of the probation officer regarding any form of therapy or follow-up with regard to his specific problems; - Perform 240 hours of community work within 12 months from the effective date of this order. ORDERS the accused to comply with the Sex Offender Information Registration Act for a 10-year period.

AUTHORIZES the taking of samples of bodily substances from the accused for the purpose of forensic DNA analysis in accordance with s. 487.051 of the Criminal Code . __________________________________ ÉRICK VANCHESTEIN, J.C.Q. Mtre André Campagna Crown prosecutor Mtre Stéphanie Marcoux Counsel for the accused Mtre Pierre Rogue Counsel for the Attorney General Dates of hearing: April 2 and 3, 2019