Her Majesty the Queen - v. -, 2015 SKPC 173

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 173 Date: December 11, 2015 Information: 44407997 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Paul Anthony Burke Appearing: L. E. Morelli For the Crown B. R. Pfefferle For the Accused SENTENCING DECISION Q. D. AGNEW , J Introduction [ 1 ] We, the courts, seem to quickly run out of adjectives in describing child pornography.

Words such as “horrific” [1] , “vile”, “shocking and horrible” [2] , “degrading, dehumanizing” [3] , “filth” [4] , “shocking . . . sickening” [5] , “abhorrent” [6] ,“disgusting” and “indescribable” [7] appear in the caselaw. I have sat on a number of child pornography cases, and can endorse all of those descriptions. However, they leave little room for verbal escalation. When a case arises which goes far beyond the “normal” child pornography

situation, there is little more that can be said to express the increased level of revulsion and disgust. [ 2 ] Paul Burke’s case is such a case. Like many other persons convicted of child pornography offences, Mr. Burke has devoted a considerable amount of effort to finding child pornography. He has obtained a large number of computer files of child pornography. However, Mr. Burke is unique in my experience. In addition to “normal” child pornography, Mr. Burke has a particular interest. He likes to watch small children be tortured.

Facts [ 3 ] Paul Burke pled guilty on November 26, 2015 to one count of possession of child pornography. [8] A sentencing hearing was held, during which the Crown made certain factual representations, and called Detective Sergeant Darren Parisien as a witness. The accused did not call any evidence, although factual representations were made on his behalf by his counsel. [ 4 ] The accused describes himself as a “sophisticated” computer user.

The facts bear out that assessment. [ 5 ] It is usual to see peer-to-peer filesharing programs in child pornography cases: it seems that many, perhaps most, collectors of such material use such programs to find child pornography on the internet. The accused had such programs. It is not uncommon for peer-to-peer networks to have viruses masquerading as normal files, so frequently collectors will have one or more anti-virus programs; the accused had four. The accused was also running software to mask his online activity.

Unusually, the accused had almost all of his computer files encrypted with a very robust encryption program: heavy encryption is both cumbersome and not typically encountered. Even more unusually, the accused had installed on his computer a specialized piece of software which allowed him access to a very large, very sophisticated, and completely encrypted peer-to-peer network. [ 6 ] Unlike the more common peer-to-peer networks, where file names are visible to anyone with the appropriate software and files can be requested by any user, within this encrypted network no files are immediately available.

A user has to locate bulletin boards which appear to cater to their particular interest, and interact with other users within that bulletin board. A file can be obtained by someone like the accused only by persuading another user of that bulletin board to provide the software “key” to decrypt that particular file. The network software hides portions of the files on individuals’ computers, where the file fragments may well be invisible to the computer owner themselves. The security and encryption protocols are so extensive that, according to Det. Sgt.

Parisian, a file which might take a few hours to download on one of the more usual peer-to-peer networks could take a week to download on this network. [ 7 ] The names of the bulletin boards which Paul Burke was interested in make it clear that their themes are child pornography and pain. One of them was described by Det. Sgt. Parisian as being devoted to extremely violent assaults on children. [ 8 ] A review of the unencrypted portions of Mr. Burke’s computer revealed traces of his activities.

Although almost all of the files themselves were either deleted or encrypted, the computer retained “thumbnail” files, remnants of files and temporary cached files sufficient to show that the accused had downloaded 4,905 child pornography files. Of these, just eight were found intact on the accused’s computer; the downloading of the other 4,897 was deduced from these other traces left by their passage. Mr. Burke does not dispute possession of these 4,905 separate examples of child pornography. [ 9 ] The Crown filed a DVD of samples of Mr. Burke’s collection.

I have directed it to be sealed on the court file, to be opened only by court order, and to be returned to the Saskatoon Police Service upon the expiration of all applicable appeal periods. Det. Sgt. Parisian also played for me a sample video which Mr. Burke had downloaded from the encrypted network, which is also to be found on the DVD. [ 10 ] The video which was played for me does not show any overt sexual activity. A woman wearing a mask, her breasts naked, is shown on a bed with an infant girl. The girl’s age is not obvious, but she seems previously have been wearing a diaper and has not yet learned to speak.

I would estimate her age to be one to two years. The woman takes what appears to be ice and, after rubbing it on the infant’s skin, inserts it into the little girl’s vagina. The woman then ties infant’s ankles to a bar which is fitted to an apparatus to hold the child suspended upside down with her legs spread. What appears to be duct tape is placed across the infant’s mouth, although it does

little to muffle the screaming. The woman repeatedly slaps the infant’s vagina with heavy blows. She then places what look like clothes pins on the infant’s nipples and vagina, and continues to slap her. The screaming continues. The Crown’s description indicated that later in the video, flame is applied to the little girl’s skin; I concluded that I did not need to see that portion of the video. [ 11 ] The video which was shown to me is unusual in child-pornography terms, in that no explicit sexual activity is shown, although at one point the woman brings her tongue near to the infant’s vagina.

However, the accused does not take issue with the proposition that this video falls within the terms of the charge to which he has pled guilty. That charge, as indicated above, refers to (

a) a child “engaged in explicit sexual activity”, or (b) “the depiction, for a sexual purpose, of a sexual organ or the anal region of [a child]”. The toddler is not engaged in any explicit sexual activity. The accused, by his guilty plea and by not objecting to use of that particular video in his sentencing on that charge, must therefore be taken as admitting that it falls under (b). That is, Mr.

Burke has by necessary implication acknowledged the sexual purpose of this video. [ 12 ] The evidence, with which the accused did not take issue, is that he also downloaded and had, unencrypted on his computer, at least one other video depicting what was described as “very violent abuse of a two- to three-year-old girl.” [ 13 ] Through his lawyer, the accused asserted that he was not aware of the contents of the video which I have described in detail above. I do not accept that contention.

There is no doubt but that if the accused made a deliberate decision to download this video, knowing or suspecting the nature of its contents, that would be an aggravating factor for sentencing. Accordingly, the Crown must prove those facts beyond a reasonable doubt. [9] The accused chose not to call evidence on the sentencing hearing, and instead to rely on unsworn statements via defence counsel. That is his right. I have to weigh his allegation through counsel against the sworn evidence, tested on cross-examination, of Det. Sgt. Parisien. [ 14 ] Det. Sgt.

Parisien testified as to the nature of the bulletin boards to which the accused had subscribed on the encrypted network. Their names leave little to the imagination, and apparently those names are accurate descriptions: they are for people interested in child sexual abuse and pain. These are not the types of places one could wander into by mistake, or be surprised by the content of. He also testified as to the difficulty of obtaining files from the encrypted network, and the corresponding dedication required of anyone seeking files from that network. [ 15 ] Det. Sgt.

Parisien also testified that the accused’s computer had logged over 40 requests for this specific file, over a significant period of time: that is, the accused (there is no suggestion that anyone other than the accused was involved, or that these requests were generated automatically) deliberately, and with an amazing degree of perseverance, sought out this particular file. It is beyond belief that the accused would have done so without a clear idea that he wanted, very badly, what was contained in that file.

If this was just random searching, it is hard to imagine that the accused would have continued to try to obtain that file rather than going on to another.

The fact that another video file with similar content was found on the accused’s computer further undermines the credibility of his bare denial. [ 16 ] In the end, the evidence satisfies me that the accused at the very least knew of the contents of the video, and sought it out specifically for that content. [ 17 ] At this point, I should indicate that I draw no conclusions from the fact that the accused had computer files which were heavily encrypted, nor from the fact that he has refused to give the police the passwords which would allow them access to those files.

There could be a variety of legitimate reasons why the accused might do so, and he is not required to justify his decision to me or to anyone else. I did, however, emphasize to the accused that I was sentencing him only on the basis of the videos and images which the police have found to date, and that if his encryption is eventually broken and more child pornography is found, then more charges could be laid.

I also pointed out, as defence counsel was advising (in mitigation) that the accused said that he had not kept these files but rather had deleted them, that if his encryption was broken and this claim found not to be true, this allegation could be an aggravating factor in a subsequent sentencing. Although I offered the accused and his counsel an opportunity to discuss that issue before proceeding, they declined and chose to go ahead on the basis of that representation. Analysis

[ 18 ] As with any sentencing under the Criminal Code , a determination of the appropriate sentence begins with consideration of sections 718 through 718.2. The basic purposes of any sentence, as set out in s. 718 , is to contribute to respect for the law, and to contribute to maintenance of a just, peaceful and safe society.

Those purposes are accomplished by sentences which address denunciation, general and specific deterrence, rehabilitation of offenders (including fostering a sense of responsibility in them for their crimes), reparation to victims and communities, and the separation of the accused from society where necessary.

Principles which the Court is to take into account in addressing those objectives include proportionality (both as to the offender’s culpability and the gravity of the offence, as well as to other sentences given to similar offenders for similar offences), totality and various other factors, some of which may be aggravating and some of which may be mitigating.

Offences involving children are given special mention in two different sections: s. 718.01, which specifically states that for an offence which involves the abuse of a child, the primary consideration in sentencing should be the objectives of denunciation and deterrence; and s. 718.2(a)(ii.1), which specifies as an aggravating factor that the offender in committing the offence abused a child. [10] [ 19 ]

Section 718.01 (offences involving children) is applicable to the present offence, while s. 718.2(a)(ii.1) (offences in which the offender abused a child) is not. As Mr. Burke is not alleged to have physically committed any abuse of any of the children in his pornography collection, it is not obvious that s. 718.2(a)(ii.1) applies. It is a given that even viewing child pornography constitutes a renewed abuse of that child: see the comments of the child victim quoted in Kwok , below.

However, as child pornography by definition involves the abuse of a child, the fact that a child was abused cannot be an aggravating factor: no more than, in sentencing a murderer, can the victim’s death be an aggravating factor. The “aggravating factor” is part of the definition of the offence, and the “aggravating factor” has already been taken into account by Parliament in creating the offence and setting out the available punishments for it.

In line with this analysis, s. 718.01 does not refer to the abuse as an aggravating factor (i.e. one which would move a sentence upward), but instead shifts the sentence’s objective to focus more on one specific area. [ 20 ] The Court in Kwok [11] offered a partial list of aggravating and mitigating factors in child pornography cases: aggravating : (

i) a criminal record for similar or related offences; (ii) whether there was also production or distribution of the pornography; (iii) the size of the pornography collection; (iv) the nature of the collection (including the age of the children involved and the relative depravity and violence depicted); (

v) the extent to which the offender is seen as a danger to children (including whether he is a diagnosed pedophile who has acted on his impulses in the past by assaulting children); and (vi) whether the offender has purchased child pornography thereby contributing to the sexual victimization of children for profit as opposed to merely collecting it by free downloads from the Internet. mitigating : (

i) the youthful age of the offender; (ii) the otherwise good character of the offender; (iii) the extent to which the offender has shown insight into his problem; (iv) whether he has demonstrated genuine remorse; (

v) whether the offender is willing to submit to treatment and counselling or has already undertaken such treatment; (vi) the existence of a guilty plea; and (vii) the extent to which the offender has already suffered for his crime (for example, in his family, career or community). [ 21 ] The aggravating factors present in Mr. Burke’s case are just three of the six, namely the nature of his collection, the size of his collection and whether or not Mr. Burke may be a danger to children. I will discuss each of these in turn, and then deal with the

mitigating factors. Aggravating factors The nature of the collection [ 22 ] There are a variety of types of child pornography. Earlier this year, a British Columbia court offered the following analysis: Courts have recognized a five-level categorization of child pornography to assist in assessing the levels of seriousness of the violations inflicted on children in the images and video material.

Those levels are briefly described as follows: first, images which depict erotic posing with no sexual activity; second, sexual activity between children or solo masturbation by a child; three, non-penetrative sexual activity between adults and children; four, penetrative sexual activity between children and adults, and the fifth level is briefly described as sadism or bestiality. (R. v. Oliver, [2002] EWJ No. 5441) [12] [ 23 ] This description appears to be new in Canadian caselaw.

In cases involving large collections, it may not be helpful to use such a framework, as larger collections seem to encompass several of the levels described. The hierarchy is of some use in the present case, however, as outlining the degrees of seriousness ascribed to the levels of activity depicted. Clearly, the video described earlier in these reasons is of the highest level of severity. Furthermore, the evidence shows the lengths to which Mr.

Burke had to go to get it, the very specific interests of some of the bulletin boards to which he subscribed related to that video’s content, and that it was not the only one of that nature found in Mr. Burke’s possession. [ 24 ] The video I have described and a similar one were two of just eight videos found on Mr. Burke’s computer equipment; evidence of possession of all of the others comes only from records left by their passing. For whatever reason, these eight were left intact. Thus, of the videos which Mr.

Burke chose to keep readily on hand, one quarter are of horrific child torture. [ 25 ] I do not wish to be taken as believing that this video is an example of the worst that can be found. No doubt there is worse somewhere. However, I can say that the video is the worst that I have ever seen in cases I have dealt with; furthermore, it is the worst I have seen described in any case I have read. [ 26 ] I accordingly find the nature of the collection at the very high end of aggravating circumstances.

The size of the collection [ 27 ] In addition to the severity of the material, another factor in sentencing for possession of child pornography is the amount of material possessed.

A very large amount is typically seen as aggravating, for a number of reasons. [ 28 ] Firstly, if possession of any illegal substance is an offence then possession of a large amount is, logically, worse. [ 29 ] Secondly, as I mentioned in R v Stupnikoff , the volume of material collected speaks to the degree of interest, or obsession, which an accused has regarding child pornography. [13] [ 30 ] Thirdly, the size of the collection is a reflection of the harm done by the collector.

That harm is initially done by the persons who created the child pornography, but it is compounded by those who view it, by perpetuating the abuse. As was eloquently stated by

one of the child victims in the much-cited decision of R v Kwok : The absolute worse ( sic ) thing about everything that happened to me was that Matthew [her abuser] put my pictures on the internet. He traded them with other people like baseball cards. What kind of people want to see pictures of a little girl being abused in this way? ... I know that these pictures will never end and that my "virtual abuse" will go on forever. Usually when someone is raped and abused, the abuse ends. But since Matthew put those pictures on the Internet, my abuse is still going on. Anyone can see them.

People ask for them and are downloading them. Day after day. People want to see me abused. I want every single person who downloads my picture to go to jail and be really punished as much as possible. They are as evil as Matthew. They want to see me suffer. They want to see me starved and hurt and sad and abused. Child pornography is not a victimless crime. I am a victim and I still suffer everyday and every time someone sees me being abused. [14] [ 31 ] Fourthly, the harm done by collecting is not specific to the children seen in those videos themselves.

The Supreme Court of Canada has determined that the law of supply and demand operates with respect to child pornography: as demand increases, supply increases to fill it. In other words, collectors by collecting cause the creation of more child pornography. [15] [ 32 ] The size of the collection is therefore relevant in at least the following ways: (

a) just as with any illegal substance, possession of more is worse than possession of less; (

b) it provides information about the extent of the accused’s interest in, or obsession with, child pornography; (

c) it is a gauge of the additional harm done to the victims, by their re-victimization; (

d) it shows the degree to which the collector has personally contributed to the creation of new child pornography, by creating increased demand for the type of photos or videos collected. [ 33 ] In the case of Mr. Burke, this final point is particularly compelling. It is horrible enough that he has, through his interest, contributed to the rape, degradation and physical and psychological torment of new victims of “normal” child pornography; it is stomach-turning to consider that because of him, more toddlers have been tortured. [ 34 ] As indicated above, Mr.

Burke was found to have possessed 4,905 child pornography files. This is not by any means the largest number of such files: so far as I am aware, the largest reported Canadian collection continues to be the one in R v Allen [16] , at 880,000 child pornography files. Mr. Burke’s is roughly one-twentieth the size of the largest Saskatchewan collection of which I am aware, the 80,000 files in Stupnikoff . It is, however, a large number. The danger posed by the accused to children [ 35 ] There is no evidence that Mr.

Burke has personally abused children, nor is there any medical evidence of a propensity for him to do so. It is of considerable concern to me, however, that he reports that his wife is currently pregnant.

[ 36 ] Mr. Burke was charged almost a year and a half ago. Obviously, his wife conceived their child well into the process of him dealing with these charges. I do not know of the extent to which she is aware of these charges, or of Mr. Burke’s specific interest in the torture of toddlers. I do not know whether or not he has concealed those details from her. I do not know the extent to which arrangements have been made or will be made to protect this child. Whatever steps may be taken by the courts or other authorities, Mr.

Burke will soon be in a much closer relationship than would be a stranger, to a child at its most vulnerable stage in life; a stage, in fact, at which Mr. Burke likes to see children tortured. Mitigating factors [ 37 ] In terms of the mitigating factors identified in Kwok , I will review them each in turn with respect to the accused. Youthful age [ 38 ] This factor does not apply to the accused, who is 34 years old. Otherwise good character [ 39 ] The accused seems to have a good character, other than the issues which have him before me. He is apparently married, and has been employed throughout.

Insight [ 40 ] The accused does not seem to have any insight into his problem. Remorse [ 41 ] I am not aware of any genuine remorse demonstrated by the accused. Treatment and counselling [ 42 ] Despite the fact that the accused was charged almost a year and a half ago, I am not aware that he has taken any treatment or counselling. Guilty plea [ 43 ] The accused entered a guilty plea, albeit at a very late date in the proceedings and in circumstances where there seems to have been little prospect of being found not guilty.

However, he is entitled to credit for giving up whatever hope he may have had of an acquittal: there is never a certainty of conviction in any criminal case, and the accused would have been well within his rights to require the Crown to proceed to trial and have its evidence tested in court. Previous effects on the accused

[ 44 ] The accused had trained as a realtor, and was working as such. When these charges came to light, he was asked to withdraw from that occupation by his governing body, which he agreed to do. He has since had to find employment in an unrelated field. Position of the Crown and defence [ 45 ] Defence argues that all sentencing objectives can be adequately addressed through a sentence of 12 months incarceration, and three years’ probation.

The proposed length of incarceration is double the minimum sentence. [ 46 ] The Crown proposes a sentence of two years less a day, followed by three years’ probation. [ 47 ] The terms of probation are not controverted. They largely involve sex offender programming, no access to the internet, no computer access except under strict conditions related to employment, and similar terms.

Although the details may vary, the conditions are not unlike those imposed in other sentences for child pornography. [ 48 ] The typical range of sentences for a first-time conviction for possession of child pornography was recently discussed in R v Kroeker . [17] After considering almost twenty decisions, many of them from Saskatchewan courts, Keene J concluded that for a first-time offender, the range of sentences for possession of child pornography “should be from the minimum imposed by Parliament to about two years depending on the circumstances.” [18] In that case, the accused had been collecting child pornography for six to eight years, and had amassed a collection of over 150,000 photographs and over 6,000 videos.

He was described as a sophisticated internet user. The only mitigating factors noted were his guilty plea and a lack of a criminal record. The types of activities found were of sexual activity between or with children.

The accused was sentenced to two years’ imprisonment, or the upper-most level of the range found by Keene J. [ 49 ] The sentencing positions put before me, then, are both squarely within the range identified by Keene J: the Crown seeking one day less than the upper end of the range (and thus provincial incarceration rather than penitentiary time), and defence seeking 12 months, or approximately the middle of the range (the minimum having been 6 months at the time of the offence). [ 50 ] Sentencing ranges are useful for helping keep similar sentences for similar offences by similar offenders.

It is expected that most sentences for a certain offence will fall within the accepted range. The Saskatchewan Court of Appeal referred to the reasons for sentencing ranges in R v Bethke [19] : Still, it falls to all of us -- meaning all of the judges of all the courts in the Province -- to strive to achieve a reasonable degree of consistency in the application of these provisions, however inherently difficult this may be on occasion because of the inevitable variation in circumstances.

But, unless we treat like cases more or less alike, we run the risk of undermining the integrity of the administration of justice and, hence, public confidence in the administration of the criminal law. This ties in, of course, with the long-accepted recognition of sentencing ranges, and the desirability, in the absence of the extraordinary , of sentencing within the established ranges of sentence for this offence or that, moving up and down the range as the circumstances and faculty of judgment commend. [emphasis added] [ 51 ] As noted in those comments, the range is not a straight-jacket.

It can and should be deviated from, in extraordinary circumstances. The question is whether or not Mr. Burke’s situation is extraordinary. [ 52 ] His mitigating factors are minor, and similar to many defendants in child pornography cases. It is sadly common for defendants not to understand the harm they have done, not to feel remorse for the victims, and not to seek any help or treatment until forced to do so by the courts.

[ 53 ] The number of Mr. Burke’s downloads, at slightly under 5,000, is far from the largest. It is, however, sizeable. The magnitude of Mr. Burke’s obsession can be demonstrated simply by considering the amount of time it would take to view 5,000 still photographs, let alone video files. [ 54 ] It is the nature of Mr. Burke’s obsession which is the most concerning. We do not know with any certainty how much time or effort he put into downloading most of those files.

We do know, however, that he had to go to extraordinary lengths, and use considerable perseverance, to find what he found on the encrypted network and then to download it. The nature of what he sought and found there is the worst I have seen. [ 55 ] Additionally, by his interest in such material, Mr. Burke has contributed to the market for it. As set out by the Supreme Court of Canada in Sharpe , by seeking out videos of the torture of toddlers, he has caused other toddlers to be tortured. Not him alone, and not directly, but by creating demand, he has added to the supply: Mr.

Burke’s interest has caused children to be tortured. [ 56 ] One of society’s most fundamental functions is the nurturing and raising of children. We care for them because they cannot care for themselves. Mr. Burke’s actions strike at the heart of that most basic of concepts in a way that even most child pornography cases do not. Accordingly, I consider that this is one of the extraordinary cases referred to by the Court of Appeal, where the usual range of sentences is not appropriate. [ 57 ] Having considered all of the above matters in detail, I have concluded that the appropriate sentence for Mr.

Burke is three years’ incarceration. He is entitled to credit for his remand time to date, which is 18 days. Crown and defence agree that credit should be given at 1.5 days for each actual day of remand, for a credit of 27 days. Mr. Burke therefore has 2 years, 11 months and 3 days left to serve. [ 58 ] I recognize that the sentence I am imposing in this matter exceeds that suggested by the Crown. I also recognize that there are decisions which have held that the Court ought not to do so, at least not without giving the parties notice of its intention so to do and giving them an opportunity to be heard.

As far as I am aware, there are no decisions in Saskatchewan which take that view. However, in the event that I am incorrect or that any party considers that I am not entitled to take this step, I will explain my reasoning. [ 59 ] The suggestion, particularly developed by the Alberta Court of Appeal in recent years, is that the Court is obliged to give counsel notice, and an opportunity to be re-heard, where the Court is considering giving a sentence outside the range suggested by counsel.

Thus, for example, in the present case where defence suggested 12 months and the Crown suggested two years less a day, I should have recalled counsel, advised them that I was considering a sentence outside their proposed range, and given them an opportunity to address me again on sentence. [ 60 ] The rationale for the doctrine is best summed up in a 2012 decision from the Alberta Court of Appeal, R v Keough [20] . There, the Court identified several factors which it considered to be difficulties with imposing a sentence outside the range proposed by counsel.

Those are: 1. the sentencing process is an adversarial one, and if a trial judge “second-guesses or overrides the decisions of counsel”, there is the danger that the judge will become, in appearance or reality, an advocate for one side; 2. if the Crown makes a submission which the accused finds reasonable, the accused may choose not to make any submissions on the point, and a sentence inconsistent with that submission may catch the accused by surprise; 3. an accused who receives a sentence outside the recommended range may harbour a feeling of unfairness and injustice ; 4. failing to seek the input of counsel may cause the judge to overlook something, rely on an irrelevant factor or impose a sentence based on an error in principle. [21]

[ 61 ] To address the last point first, it is of course always a concern that sentencing judges address all relevant factors, not rely on irrelevant ones, and not make errors in principle. It is not clear, however, that the prescription fits the disease. If a sentencing judge tells counsel that he or she is not convinced that the proposed range is appropriate, that statement alone will not prevent any of these errors.

The Alberta Court of Appeal nowhere suggests that the judge must also identify the source of their concern, what factors they are considering and not considering, and what principles they are relying on; yet without such information, this proposed conversation with counsel will not address any of the concerns in point four. [ 62 ] With respect to points one through three, these can be seen as a question of “fairness”, and indeed in a decision given later in 2012, the Alberta Court of Appeal pinpointed “fairness” as the basis for the requirement of notice.

In R v Burback , [22] the Court indicated: Giving notice is a question of fairness, and we agree with the panel in Hood [23] that a sentencing judge should give notice to the parties when he [ sic ] is inclined to sentence outside the range proposed by the parties, and then provide the parties the chance to address his [ sic ] concerns. [24] [ 63 ] This reasoning, namely that it is a question of fairness that gives rise to the need to give counsel a further opportunity to speak to sentence if their first attempt was unconvincing, is further expanded upon in Burback as follows: It may be that discussions between the parties, and the Crown’s agreement to seek a particular range of sentence, were the basis for the guilty plea.

Such an arrangement is not uncommon in circumstances where the Crown and defence cannot agree to a joint submission, but agree to a guilty plea on the basis that each counsel will propose a specific sentence, with the expectation that the sentencing judge will choose on, or the other, or some point in between.

In such a circumstance, an accused agrees to enter the guilty plea, taking some comfort from the expectation that the sentencing judge will not go beyond the maximum time proposed . . . [25] [ 64 ] With the greatest of respect, I do not believe that “fairness” requires counsel be given a second chance to convince the Court if their first attempt fails.

Particularly in a contested sentencing, I expect counsel to give their best arguments in favour of their respective sentencing positions; I do not think it reasonable that if they are unpersuasive, they should be told to come back and try again. [ 65 ] Furthermore, this explanation runs contrary to the concept embodied in s. 606(1.1)(b)(iii) of the Criminal Code , particularly as it as has been interpreted by the courts.

That clause requires that the Court accepting a guilty plea be satisfied that the accused understands “that the court is not bound by any agreement made between the accused and the prosecutor.” [26] It has long been understood that this means, or at least encompasses, the concept that the guilty plea is made without any promise as to sentence, and that sentencing remains the unbridled discretion of the judge regardless of any agreement between Crown and defence. [27] In Canada, an accused pleads guilty without a safety net: there are no guarantees as to sentence. [ 66 ] This rule has been slightly modified by appellate courts in dealing with joint submissions on sentence.

That is, where Crown and defence jointly propose a sentence (as opposed to happening to come up with the same recommendation, or the defence deciding to agree with the Crown’s sentence proposal once it has been put to the Court), the sentencing judge should accept that proposal unless so doing would be contrary to the public interest, or would bring the administration of justice into disrepute. [28] There is a great deal of judicial and other comment as to the reasons for that specific exception. [29] Those reasons do not apply here. [ 67 ] Aside, then, from the special case of a joint submission, an accused and counsel know that the sentencing judge’s decision is unfettered by the submissions of the parties.

An accused should not find it unfair if the judge gives a sentence outside the suggestions of counsel: presumably the accused has been made aware of precisely this possibility. Certainly in the case of a guilty plea, the accused will have been informed of this possibility in accordance with s. 606(1.1). I would expect counsel to have much the same discussion with their client in a contested sentencing; the possibility that some counsel somewhere some day might not do so seems like an inadequate reason to hamstring the sentencing judge.

[ 68 ] Another consideration is simply one of practicality. Summoning counsel back to court to re-argue sentence adds length and complexity to the proceedings, without any obvious benefit. I expect counsel in a contested sentencing to put forward their best arguments; it is not clear what arguments they might be able to advance if told that their initial ones were not persuasive.

Is the Court to ask for poorer arguments where the better have failed? [ 69 ] I have accordingly considered and rejected the need for or desirability of asking counsel for further submissions before sentencing the accused to a term outside the range suggested. Ancillary orders [ 70 ] There is a mandatory $200.00 surcharge to be imposed.

In light of the sentence I have imposed on the accused, I give him three years and three months from today to pay. [ 71 ] The offence is a primary designated offence under s. 487.04, and accordingly I make the mandatory DNA order pursuant to s. 487.051(1). [ 72 ] Pursuant to s. 490.012, I direct the accused to comply with the Sex Offender Information Registration Act for a period of ten years. [ 73 ] Pursuant to s. 161(1), and subject to further order by a court of competent jurisdiction, I prohibit Mr. Burke for a period of three years (commencing as set out in s. 161(2)) from: (

a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre; (

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

c) having any contact - including communicating by any means - with a person who is under the age of 16 years; (

d) using the internet or any other digital network. [ 74 ] I find to be offence-related property pursuant to s. 490.1, and order forfeited to Her Majesty the Queen, the items specified in the draft forfeiture order provided by the Crown at the sentencing hearing. I will execute the draft order and provide it to the parties, rather than specify each item here. ___________________ Q. D. Agnew, J

[1]R v Kroeker, 2014 SKQB 137 at para. 7 (Kroeker). [2]Both this quote and the preceding one are from R v Pinsky, 2011 SKPC 111 at para. 6 (Pinsky). [3]R v Sharpe, 2001 SCC 2 at para. 158 (Sharpe). [4]R v Kwok, (ON SC), [2007] OJ No 457 at paras. 49 and 50 (Kwok). [5]Kwok at para. 48. [6]R v Covert, [2015] OJ No 3488 at para. 36. [7]Both this quote and the preceding one are from R v Ward (October 30, 2013) Saskatoon, Information 37292460 (SKPC), transcriptpage 31, lines 1 and 2. [8]The formal charge is that he did, between April 20, 2014 and June 10, 2014, at Saskatoon, have in his possession child pornography towit: possessing images or videos of a person who is depicted as being under the age of eighteen years engaged in or depicted as beingengaged in explicit sexual activity, or the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or theanal region of a person under the age of eighteen years, contrary to

section 163.1(4) of the Criminal Code. [9]Criminal Code, s. 724(3)(e). [10]I am using “child” to refer to a person under the age of 18. [11]See para. 7. [12]R v SDM, 2015 BCPC 112 at para. 20. [13]See 2013 SKPC 57 at para. 37 (Stupnikoff). [14] (ON SC), [2007] OJ No 457 at para. 51 (Kwok). [15]Sharpe, para. 28. [16]2012 BCCA 337. [17]2014 SKQB 137. [18] See para. 51. [19]2013 SKCA 135.

The paragraphs quoted are 46 and 47. [20]2012 ABCA 14. [21]See paragraphs 19 - 21. [22]2012 ABCA 30. [23]Not footnoted in the quotation, but elsewhere in the decision: R v Hood, 2011 ABCA 169. [24]paragraph 12. [25]paragraph 12. [26]s. 606(1.1)(b)(iii). [27]See, for example: R v Sanders, (BC CA), [1953] BCJ No 99, 8 WWR (NS) 676, (BCCA) at paragraph 23, citedwith approval in R v Porter, , [1994] NSJ No 304,(NS CA) at para. 29; R v T (R)), (ON CA), 10OR (3d) 514, (Ont CA); R v McLeod, 2006 SKPC 47 at para. 38. [28]See, for example, R v Webster, 2001 SKCA 72 and more recently R v DeSousa, 2012 ONCA 254. [29]See, for example, the discussion in “When Race Matters in Sentencing: R. v.

Ramsay and R. v. Hamilton”, 22 C. R. (6th) 86, and thecases cited therein.