R. v. Tremblay Date:, 2017 BCPC 375

Citation: R. v. Tremblay Date: 20170920 2017 BCPC 375 File No: 49312-2-C Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ERNEST MICHEL TREMBLAY ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G.W. MCKIMM Counsel for the Crown: N. Devji Counsel for the Defendant: J. van der Walle and N. Jacob Place of Hearing: Vernon , B.C. Date of Judgment: September 20, 2017 [ 1 ] THE COURT: Mr. Tremblay, I am going to sentence you to 18 months in custody starting today, and I am going to put you on probation for two years after that.

I do not want you to have to sit and listen to lengthy reasons and anguish anymore. You have anguished long enough in your answering to these very serious charges. [ 2 ] So, Counsel, I am also, just for your benefit, I intend to have these reasons published and at this stage they are going to be an oral judgment, subject to any editing I might make during the course of the publishing process. You have raised interesting issues, which in my view, other members of my Court may well find helpful.

History of the Proceedings [3] The accused is charged by indictment on information for two counts of possessing and accessing child pornography. Count 1, Ernest Michel Tremblay, between the 1st day of August, 2014 to the 23rd of October, 2014 inclusive, at or near Vernon in theProvince of British Columbia, did possess child pornography, contrary to s. 163.1(4) of the Criminal Code.

Count 2, Ernest Michel Tremblay, between August 1, 2014, and September 9, 2014 inclusive, at or near Vernon in the Province ofBritish Columbia, did access child pornography contrary to s. 163.1(4.1) of the Criminal Code. [4] On November 20, 2014, the accused elected trial by Provincial Court Judge and pled not guilty to both counts. Trialproceedings continued for the following 13 months. The trial proceedings involved a number of unsuccessful challenges to the series ofwarrants issued, which ultimately led to the seizure of the material in question.

None of these challenges were successful. [5] On December 11, 2015, the accused entered pleas of guilty to both counts on the information. At that time a PresentenceReport was ordered, and the matter adjourned for sentencing.

On January 6, 2016, a Psychiatric Assessment was ordered. [6] On April 4, 2016, the accused filed an application pursuant to the Charter to strike down the mandatory minimum sentence ofsix months imprisonment, which applies to these charges. (Subsequent to the date of these offences, the mandatory minimum penaltywas increased to 12 months imprisonment.) [7] Arguments on the Charter motion began on July 28, 2016, and were set for two days.

On the second day of the Chartermotion, the accused made a further application to withdraw his guilty plea on the grounds that the Crown had recently disclosed that thegravamen of the offence was far worse than the Crown had previously alleged.

The accused argued that he had recently been advisedthat the Crown intended to allege that the size of the collection was in excess of 30,000 images and videos, although the accused hadbeen led to believe from an earlier disclosure package that the Crown alleged that he only possessed 455 videos and 1,552 images. [8] As a result of that application, the matter was adjourned again from time to time to allow the accused to prepare the materialsnecessary for such an application and to make further argument with respect to the challenge to the mandatory minimum sentence. [9] The application to strike the guilty plea was originally set for December 7, 2016.

That date had to be adjourned because thedefence had not provided the Crown with their materials in support of that application, in a timely way. [10] In February 2017, as a result of discussions between Crown and the defence, the defence agreed to abandon its application towithdraw the guilty plea, and the Crown agreed to proceed to sentencing only on the basis of the smaller collection. [11] In the face of these protracted proceedings, on March 8, 2017, the accused brought an application for a judicial stay ofproceedings pursuant to s. 11(

b) of the Charter. Arguments on these applications were heard on May 17, 2017 and May 19, 2017. [12] On July 19, 2017, submissions were made with respect to sentence by the Crown and the defence. The Crown sought asentence of two years less a day, and the defence sought a sentence less than that to be served in the community as a conditionalsentence. Issues 1. Should the Court enter a Judicial Stay because the accused's rights to be tried within a reasonable time as required by s. 11(

b) of theCharter have been violated? 2. Should the Court decide whether or not the mandatory minimum penalty, as it was at the time of the commission of this offence,constituted cruel and unusual treatment or punishment violating s. 12 of the Charter, and therefore should not apply in this proceeding? 3. What is a fit and appropriate sentence for this offender for these offences? Discussion 1) The Application for a Stay as a Result of Delay [13] There is no question that this matter has a long, protracted history. On October 23, 2014, the accused was arrested for thesevery serious crimes.

He was released on bail with restrictive conditions. The information was sworn on November 13, 2014, with thefirst trial date being set for June 22, 2015. During the course of the trial proceedings many arguments were brought that the accused'sconstitutionally protected rights were violated by the state in various ways.

None of those arguments were frivolous and all hadsubstantial merit, albeit were ultimately unsuccessful. [14] The accused accepts, however, that the delay between the time of the laying of the information and initial guilty plea does notattract Charter scrutiny, because that delay was primarily as a result of the accused's motions and voir dires.

The accused rather limitshis argument to the delay from the time of the initial guilty plea on December 11, 2015, and the time of the sentencing on September 20,2017, a period of some 21 months. [15] The law is clear, that the accused's right to be tried within a reasonable time applies to sentencing proceedings. In R. v.MacDougall, (SCC), [1998] 3 S.C.R. 45, the Supreme Court of Canada wrote: 32 ... While it is true that the protections conferred by ss. 7 to 14 of the Charter have a more limited scope at the sentencing stage(Jones, supra, per Gonthier J., at p. 286), they nevertheless remain important.

33 I turn first to the interests of the accused that s. 11(

b) was designed to protect. The first interest at stake is the accused's liberty. Care must be taken to separate prejudice to liberty caused by conviction from prejudice to liberty caused by delay in sentencing. This said, delay in sentencing clearly affects the liberty of an accused person who has been found guilty or has pleaded guilty and has not yet been sentenced. The person awaiting sentencing may be in prison. If released, the person is subject to conditions curtailing his or her liberty. At the very least, he or she is under obligation to return and submit to the state's process.

Delay in sentencing extends the time during which these constraints on an individual's liberty are imposed. While the sentencing Judge may take them into account, there is no certainty that this will occur. It follows that delay in sentencing may prejudice the accused's liberty interest. 34 The second interest of the accused protected by s. 11(

b) is the security interest -- the interest in minimizing the effects of exposure to criminal proceedings on the life of the accused. Again, care must be taken to separate prejudice to security arising from the conviction, from prejudice arising from undue delay in sentencing. The fact of conviction inevitably carries with it stress, stigma and opprobrium that render the convicted person's life more anxious and less secure. For this the law offers no recourse. But undue delay in getting on with sentencing may exacerbate these sequelae.

Anxiety about the eventual punishment pending sentencing is normal and unavoidable. But when sentencing is unduly delayed, this anxiety may be suffered for a longer period of time than justified. Equally seriously, the delay may prevent the convicted person from beginning the process of rebuilding his or her life, whether in a prison or in the community. Not only is the person's present liberty curtailed; but he or she lives with the knowledge that it may further be curtailed and in a more permanent way upon sentencing.

The person lives in suspense, uncertain of his or her fate, unable to get on with his or her life, and faced with all the stress and anxiety that this entails: Rahey, supra, per Lamer J., at pp. 610-11. In a very real sense, the "trial" that will determine the convicted person's fate is not over until sentence has been passed. 35 The third interest of the accused protected by s. 11(

b) is the right to a fair trial while the evidence remains available and fresh. Evidence is important in sentencing proceedings. The convicted person may wish to call character witnesses or expert witnesses. The passage of time may adversely affect the ability to do so. Added to this is the risk, admittedly small, that the trial on guilt or innocence may be opened up on the sentence proceeding, raising the possibility that delay might also impact negatively on the trial of that issue.

While in many cases the bulk of fair trial interest may dissipate once a verdict of guilt is established, the potential for prejudice arising from delay in sentencing remains alive. 36 Delay in sentencing can also impact negatively on societal interests. Society has a keen interest in ensuring that those guilty of committing crimes receive an appropriate sentence promptly. The appropriate balance between the protection of society and the liberty of the individual can only be ascertained after hearing evidence and submissions on sentence.

The danger of an inappropriate situation continuing due to delay in sentencing is a real one. Delay may result in too much liberty being granted pending sentencing, putting society at risk. Or delay may result in the convicted person not getting the rehabilitative treatment he or she requires at an early stage, putting society at greater risk upon release and dimming the prospects of rehabilitating the person to the status of a productive and responsible member of society. It is in society's highest interest that the Court develop and impose an appropriate sentence as soon as reasonably possible.

Delay in sentencing frustrates this goal. [ 16 ] I would add to those considerations, that since the decision in MacDougall , the Courts have been increasingly tasked with ensuring the victims of offences are actively engaged in the sentencing process and the delay in sentencing clearly leads to a substantial and significant stress and anxiety for those victims. [ 17 ] In R. v.

Jordan , the Court imposed a presumptive cap on trial Courts that matters needed to proceed within eighteen months, failing which, the burden fell to the Crown to establish why the accused's rights to trial within a reasonable time had not been violated. The Court specifically declined to answer the question as to whether that eighteen months included the time to sentencing. See Jordan at footnote 2. [ 18 ] Based on the analysis contained within MacDougall , all of the factors that militate in favour of a presumptive ceiling, beyond which the Crown must satisfy the Court that the accused's s. 11(

b) rights have not been violated, should properly apply to the sentencing process. It is reasonable to assume that most sentencings will take several months to complete. If Presentence Reports are ordered or Psychiatric Assessments are ordered, it is reasonable to assume that it will take two months for those reports to be prepared, and the parties to have an opportunity to prepare for sentencing, having reviewed those reports.

As a result, if eighteen months constitutes a reasonable time in which a complete trial ought to be conducted, at a minimum, twenty months would constitute a presumptive ceiling for a trial to be completed in Provincial Court and sentencing to be completed. There is no analysis by which the presumptive ceiling for any matter would extend to twenty months from the date of plea or conviction to the date of sentencing if the trial process has occurred in an appropriate fashion.

It is reasonable to anticipate that the trial and sentencing would all be completed within eighteen months, but if for extraordinary reasons or as a result of delay which is appropriately ascribed to the defence, the matter takes more than eighteen months to get to the sentencing process, then a presumptive ceiling of three months seems reasonable for the sentencing process alone. [ 19 ] In this case, Counsel for the accused conceded that the delay from the laying of the information to the entry of the guilty pleas falls at the feet of the defence.

They argue, however, that the delay from the time of the plea to the actual sentencing violates the accused's Charter rights.

In my view, it is appropriate, given a delay of twenty months between the plea and the sentencing that the Crown bears the burden to rebut the "presumption of reasonableness." Jordan , at paragraph 105, that is, they must show that in the circumstances of this case, the delay between guilty plea and sentencing is caused by exceptional circumstances, that the delay is for reasons that lay outside the control of the Crown and that the reasons for delay are unforeseen, unavoidable and cannot easily be remedied. [ 20 ] There is no material before the Court to suggest that the Crown was not at all times ready, willing and able to proceed to sentencing.

The preparation of a Presentence Report and Psychiatric Assessment added several months to the process, but that is a reasonable circumstance in the course of any sentencing on a serious matter. The true cause of the delay is as a result of the application by the accused to challenge the mandatory minimum sentence of six months imprisonment, to argue that the accused's rights under s. 11(

b) of the Charter were violated and to apply to withdraw the guilty plea. It is not possible, as is often the case, to attribute certain months of the time period, between the guilty plea and the passing of sentence to any one application or another. A more accurate review of the record shows that a number of the applications were occurring simultaneously, and in my view, an appropriate categorization is to ascribe all delay, other than the time required to prepare the Presentence Report or the psychiatric report, is solely as

a result of the need to prepare and respond to the applications brought by the accused. Each of those applications was brought by the defence. None of those applications was frivolous. [ 21 ] The Supreme Court of Canada wrote in Jordan , paragraph 65: [65] To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the Court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence.

We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused's right to make full answer and defence. While this is by no means an exact science, first instance Judges are uniquely positioned to gauge the legitimacy of defence actions. (Emphasis added) [66] To summarize, as a first step, total delay must be calculated, and defence delay must be deducted. Defence delay comprises delays waived by the defence, and delays caused solely or directly by the defence's conduct.

Defence actions legitimately taken to respond to the charges do not constitute defence delay. There is a curious tension between the two concepts found in those two paragraphs. While it is true that the delays in question here, caused by the application to strike down the mandatory minimum, the application to withdraw the guilty plea and the application for a judicial stay are not frivolous, in the sense that they clearly have merit, but on the other hand, nor can they be understood to be reasonable actions taken in the course of a regular criminal trial process.

The Application to Strike Down the Mandatory Minimum Sentence [ 22 ] On April 4, 2016, five months after the accused pled guilty, and simultaneously with the receipt of the Presentence Report and the Psychiatric Assessment, the accused filed an application for a ruling that the mandatory minimums imposed by the applications of s. 163.1(4) (

a) and 163.1(4.1) (

a) unjustifiably infringed the accused's rights under s. 12 of the Charter , to be free from cruel and unusual treatment or punishment. He further sought a declaration that the sections were of no force and effect. [ 23 ] As will be discussed below, there is much merit to this application, although overstated. It is an application however, which challenges Parliament's desire to affect a result and go to the very core of our constitutional democracy.

It cannot be said that an application such as this, regardless of the fact that it is meritorious, could possibly be understood to be the kind of application the Supreme Court of Canada envision as being part of the usual fabric of the criminal litigation process. Rather, this is an application which must be seen and understood as extraordinary. There is no reason that the Crown could reasonably have anticipated that such an application would arise during the course of this litigation.

There was certainly nothing that the Crown could have done to prepare or minimize the consequences, from a delay perspective, arising as a result of this application being brought, and certainly there is nothing that could be done to remedy the delay attendant on such an application. [ 24 ] As a result, with respect to the delay caused by the Charter application to strike down the mandatory minimum, I am satisfied that any delay caused by that application is extraordinary and does not support a violation of the accused's rights under s. 11(b).

Application to Withdraw the Guilty Plea [ 25 ] There is no question that many months of the presentence delay, are as a result of the accused's application to withdraw his guilty plea. In my view, there is little merit in this application, even accepting the defence's characteristics of the reason for the application to withdraw the plea. [ 26 ] Counsel for the defence argues that in an early package of disclosure, the Crown advised Counsel for the defence, the accused was alleged to possess 455 videos and 1,552 images which fell under the rubric of child pornography. This information came by way of an executive

summary of an initial report which clearly indicated that only a portion of the various hard drives, computers and memory devices possessed by the accused, had been examined at the time of the preparation of that report.

Shortly prior to the trial, complete disclosure was made in digital form in which there was a handwritten note from the investigating officer indicating that the collection of offending pornographic material was on the order of 30,000 images. [ 27 ] Counsel for the accused, a highly experienced and a well-respected member of the criminal bar, canvassed the description of the confusion in his affidavit as follows: (2) ...that I advised the applicant, that besides the child pornography collection he was alleged to have possessed was 455 videos and 1,552 images. (3) ...that I base this belief on the material disclosed to me by Crown, particularly an "executive report" dated April 2015 by an Alexia, which clearly and succinctly states that the size of the collection was 455 videos and 1,552 images.

(4) THAT on June 18th, 2015, four days prior to the commencement of the trial of this matter, I was provided with further disclosure in digital form. Upon recent review, this disclosure did contain the handwritten notes by Cst. Pollock [the investigating officer] which indicated that the size of the collection was much larger - roughly 30,000 items.

(5) THAT when I initially reviewed this disclosure, while preparing the Charter arguments with which the trial would begin, I did not see the note that indicated the Applicant's alleged collection of child pornography was much larger than previously alleged.

(6) THAT I think I glanced at the notes, but the significance of the notations about the size of the collection was completely lost on me. I certainly did not advise my client that the Crown was now alleging that he possessed 30,000 images. [ 28 ] It is understandable that the significance of the new disclosure may not have been at the front of Counsel's mind at the time the disclosure was received. However, that is not an adequate reason to lay the delay caused by the application to withdraw the guilty plea

at the feet of the Crown. The quantity, nature and breadth of the pornographic collection is clearly material to any sentencing in a matterinvolving an allegation of possession of or accessing child pornography. While it may not have been front of mind while preparing thedetailed and comprehensive pre-trial Charter applications, it clearly should have been prior to the entry of a plea. There is no burden onthe Crown, subject to having specifically articulated aggravating circumstances, to do more than simply disclose the breadth of theCrown's case.

If there is, or could be an issue with respect to how serious the charges are, then it is incumbent on Counsel for theaccused to make reasonable enquiries in that regard. [29] Furthermore, the application to withdraw the guilty plea was overstated. There is no suggestion the accused did not know howmany images were in his possession, or was in some way confused by the Crown disclosure. The disclosure was initially inaccurate orpartial with respect to the size of the accused's collection.

The accused's application is not an application based on new evidenceindicating that the accused's guilt is placed in question; rather the application was to re-assert his right to require the Crown to proveevery element of the offence, because his jeopardy was now greater than he had originally anticipated. [30] For these reasons, this application was also not an application in the usual course of the conduct of a criminal trial. It couldnever have been anticipated, nor responded to by the Crown, nor could the Crown have done anything to alleviate the delay caused as aresult of this application.

The accused had all of the information on which the Crown hoped to rely, in his possession many monthsbefore the guilty plea was entered. The fact that he did not turn his mind to the consequences of the detailed disclosure, does not makethis application anything other than extraordinary, and certainly not one contemplated by the Supreme Court of Canada when theycrafted the presumptive deadlines. [31] In my view, any delay caused by this application, falls squarely at the feet of the defence and is extraordinary, and as a result,the Crown has met their burden to overcome the presumptive time limits.

Application for a Stay of Proceedings as a Result of Delay [32] It would be a curious thing indeed that delay caused by application brought for a stay of proceedings as a result of delayrequires the Crown to rebut a presumption in favour of the stay. However, this too is not a frivolous application; indeed, has significantmerit, but in my view, any delay caused by such an application in this case is relatively minimal, and the work done to bring and answerthe application was carried out in an effective and efficient and expedited way.

It is impossible to precisely describe any amount of delayto the application to stay the proceedings. It is not an extraordinary application. It has merit, and I view it as reasonable to ascribe amonth of delay to this application, which month I would find, the Crown has not met the burden of satisfying me that it wasunreasonable. [33] In the result, there were four months following the guilty plea, necessary for the preparation of the Presentence Report and thePsychiatric Assessment.

I will ascribe an additional month of delay necessary to enter the application for a judicial stay, and as a resultof delay making the period of the entering the plea to the passing of sentence, five months. [34] I am satisfied that this delay in the circumstances is not unreasonable. As a result, the application for a judicial stay as a resultof delay is dismissed. Application to Strike Down the Mandatory Minimum Penalties [35]

Section 12 of the Charter provides that no one should be subjected to any cruel and unusual punishment or treatment. There aretwo ways in which the Courts can test whether or not any particular form of punishment violates this section. The first is whether or notimposition of the mandatory minimum sentence would be grossly disproportionate relative to the case before the Court. If it is grosslydisproportionate, then it is prima facie in violation of the Charter and requires justification under s. 1 of the Charter; R. v. Goltz, (SCC), [1991] 3 S.C.R. 485.

Even if the application of a mandatory minimum sentence would not be grossly disproportionateon the facts of the case at bar, the Court must still review the impugned

section in terms on whether a reasonably foreseeable set of factswould produce a grossly disproportionate result; R. v. Nur, 2015 SCC 15. [36] The mandatory minimum sentence for the case at bar is six months imprisonment. This has subsequently been changed to amandatory minimum penalty of twelve months imprisonment. The offence in question can be committed in an enormous variety ofways, including everything from a single image between teenagers to a more elaborate and comprehensive collection of childpornography.

In my view, it is relatively easy to envision a hypothetical on which a sentence of six months imprisonment would begrossly disproportionate to the offending behaviour. Regardless of that, the Crown argues that I should not deal with this issue becauseon the facts of this case it is moot. The Supreme Court of Canada in 2016 wrote: [18] To be sure, it does not follow that a Provincial Court Judge is obligated to consider the constitutionality of a mandatory minimumprovision [which would] have no impact on the sentence in the case at issue.

Judicial economy dictates that Judges should not squandertime and resources on matters they need not decide. But a formalistic approach should be avoided. Thus, once the Judge in this casedetermined that the mandatory minimum did not materially exceed the bottom of the sentencing range applicable to Mr. Lloyd, he couldhave declined to consider its constitutionality. To put it in legal terms, the doctrine of mootness should be flexibly applied. If an issuearises 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 thecase.

To compel provincial Court Judges to conduct an analysis of whether the law could have any impact on the offender's sentence, asa condition precedent to considering the law's constitutional validity, would place artificial constraints on the trial and decision-makingprocess. R. v. Lloyd, 2016 SCC 13 para 18. [37] The Crown argued that this Court should not decide on this issue because the application of the six-month mandatory minimumis well below the appropriate range of sentence for an offender in the accused's position, having committed this offence.

They furthersay that given the limited precedential value of decisions of this Court, that the exercise of deciding this important constitutional questionis not an efficient use of scarce judicial resources.

[ 38 ] In answer to the mootness challenge, Counsel for the accused argues that a considered decision of this Court is a useful decision for other trial Courts considering this important question. They further argue that striking down the mandatory minimum sentence as it applies in this case, would open up the possibility of the accused serving a sentence in the community as a conditional sentence order.

It may also be suggested that because all mandatory minimum sentences necessarily raise the floor of the range of sentencing, that whether or not the mandatory minimum sentence withstands constitutional scrutiny, is always relevant in sentencing. [ 39 ] In my view, the Crown is bound to succeed on this question. Decisions of this Court have limited precedential value. Furthermore, the sentence to be imposed in this case is far in excess of the mandatory minimum sentence contained in the legislation.

I am equally satisfied that this offence requires a statement of denunciation and deterrence both specific and general that renders the sentence served in the community inappropriate. For these reasons, I agree with Crown Counsel and that I ought not to decide this particular question and I decline to do so. Sentencing The Offender [ 40 ] Mr. Tremblay has pled guilty to two counts of possessing and accessing child pornography in the summer of 2014. Mr. Tremblay has no prior criminal history. He is 57 years of age and has otherwise led an entirely pro-social life.

He has served his country for 21 years as the member of the Royal Canadian Navy and has done so in arenas of war. He suffers from depression and subsists on a modest pension from the Canadian Forces, together with income from his savings and investment accounts. He hopes to return to the work force in the near future in the field of Environmental Sciences. The Offences [ 41 ] As indicated above, Mr. Tremblay possessed 455 video images and over fifteen hundred and fifty-two still images, which constituted child pornography.

These images were of the most deplorable nature and it is difficult to describe the depravity and the scope of this offensive material, but the very captions of the images and videos are chilling. They involved images of violence against children younger than 10, subjugation of young girls both teen and pre-teen, and degradation of the worst imaginable kind, of children. These are images to which any right-thinking person would reject, and from which any civilized person would retreat with revulsion. The Courts have come to recognize this offence is very serious. This is not a victimless crime.

Every child captured by those almost 2,000 images or videos in the accused's collection, has been victimized in the most savage way and is re-victimized every time this material is viewed or possessed. [8] To be sure, offences involving child pornography are particularly insidious. They breed a demand for images that exploit vulnerable children, both economically and morally. Understandably, offences of this sort evoke a strong emotional response. They generate widespread condemnation and intense feelings of disapprobation, if not revulsion. R. v.

Morelli , 2010 SCC 8 . [ 42 ] The steady increase in mandatory minimum sentences is a clear statement of Canadian Society's rejection of this behaviour. It is hard to know whether the constant stream of child pornography cases in this registry is the result of an increase in the behaviour, or rather more sophisticated, investigative techniques for ferreting out offenders. What is apparent, is that this vile behaviour is continuing and continues throughout this community.

It is behaviour which demands a strong statement of denunciation and deterrence. [ 43 ] Considering the mandates of s. 718 of the Criminal Code , all of the factors articulated, including the need to rehabilitate the offender, mandate a lengthy period in prison.

Section 718.01 mandates that in a sentence for offences involving the abuse of persons under the age of 18 years, the primary objective must be denunciation and deterrence. Of course, this reflects the case law dealing with sentencing in child pornography cases. See R. v. John , 2017 ONSC 810 . [ 44 ] The images in question were found in an array of different hard drives and memory devices and were categorized and organized. The offending behaviour had been going on for many years.

In the Presentence Report, the accused admitted to having started to view and save pornography as early as 2000, 14 years prior to the offence in question. This is not a questionable misguided dabbling in child pornography; rather this is a serious commission of this pernicious offence. The Range of Sentence [ 45 ] Because the scope of offences captured by s. 163.1 is so broad, it is difficult to articulate with precision, the range of sentences for this offence. One must consider the nature of the offending behaviour and the nature of the accused to determine a fit and proper range for sentence. In R. v.

John , 2017 ONSC 810 the accused was also a first offender and had a collection of pornographic images comprised of 89 videos and 50 unique images of child pornography. The collection was comprised of very young children, as young as two years of age, but also, the children were depicted as engaged in invasive and inherently violent activity. They depicted vaginal and anal penetration of children by adults as well as fellatio. The accused had some insight into his criminal behaviour. He received a sentence of 10 months in custody. [ 46 ] In R. v.

Bock , 2010 ONSC 3117 , the accused had a substantial collection of pornographic videos in excess of 1,000. He too had no prior criminal history and had complied with the terms of his bail for two and a half years. He showed a lack of insight unfortunately, with respect to the seriousness of his behaviour. For the offence of possession of child pornography, he received a sentence of one year in custody, albeit that he received a sentence of two years and nine months in custody for the more serious offence of making available child pornography. [ 47 ] In R. v.

Pelich , 2012 ONSC 4100 , involves a 45-year-old first time offender with a previously pro-social life, possessing and downloading over 4,000 images of children between six and ten, images of children being violated orally and vaginally, and having sex with adult males. Aggravating in that case was also that Mr. Pelich had made his pornographic library available to third parties for

which he received four years for making child pornography available, but he also received two years concurrently for possessing thischild pornography. [48] In R. v. Saliba, 2013 ONCA 660, the Ontario Court of Appeal upheld the sentence of two years and six months for simplepossession of child pornography, which pornography was violent, involving the victimization of several young children. [49] Similarly, in R. v. Tweedle, 2016 ONCA 983, the accused was found with 29 videos and 431 pictures of child pornography.

The collection was described as organized in a sophisticated manner with explicit file names and the Court of Appeal upheld the sentenceof 20 months. [50] I am satisfied that the range of sentence for this offender is between 18 months and three years. I am also satisfied that aconditional sentence order, regardless of the fact that the sentence I am about to impose is within the range of such an order, it is notappropriate given the pronounced need to reflect the principles of denunciation and deterrence. Justice Molloy in R. v. Kwok, (ON SC), [2007] O.J.

No 457, puts the issue succinctly when she writes: [58] I do not arrive at a sentence of imprisonment easily, particularly for a first time offender. I recognize the dehumanizing aspectsof prisons and I am aware of the statistics demonstrating that, as a general proposition, the deterrent effect of imprisonment is largelyoverrated. However, for some crimes and for some offenders, the prospect of imprisonment can have a strong deterrent effect. It is mybelief that possession of child pornography is one of those offences. It is too easily seen as harmless.

People persuade themselves that itis not really bad, that they are not the ones hurting anybody. They do not see themselves as criminals, just as drunk driving was not seenas truly criminal conduct in decades gone by. A message must be sent to those people, before they start down the path of accessing childpornography, that police are becoming more sophisticated, that society is becoming less tolerant, that more and more people are beingcaught, and that if caught, they stand a very good chance of going to jail.

In my view, these factors are all in operation here and support aterm of imprisonment rather than a Conditional Sentence to be served in the community. [51] There are some factors that are clearly mitigating in this matter. Mr. Tremblay has pled guilty and has accepted responsibilityfor these offences. Mr. Tremblay has suffered the shame and rejection of his community that would be expected from publication ofthese charges. Mr.

Tremblay articulated in the Presentence Report that he now begins to understand the seriousness of these offences,that they are not victimless crimes, but do in fact involve the abuse of children, but it must be noted that his expression of remorse andunderstanding is limited by other comments found in the Presentence Report and the Psychiatric Assessment which are instructive. [52] In that report Mr. Tremblay reported that he has owned a personal computer since 1986 and began viewing online pornographyaround 1994 through a "bulletin board system".

At this time, he was mainly viewing nude pics of adult females. [53] In 1997 he began accessing "user net groups" which he described as university and college online bulletin boards. [54] Around 1999 he inadvertently stumbled into child pornography. Mr. Tremblay described his initial reaction as one of surprise. He stated that the first pictures he came across were photos taken at nudist camps. He remarked that he had no problem with these typesof photos and didn't feel attracted to kids in any way. [55] Eventually Mr. Tremblay regressed to downloading pornographic photos onto his computer.

He described these photos ofpictures from modeling agencies of children in bathing attire or undergarments, because the children were not nude, he was uncertain ifthese photos constituted child pornography. [56] However, he did go on to download nude photos. Mr. Tremblay stated that at first, he deleted those images. He questionedthem and felt they were not right. He went on to remark that he found the photos and videos depicting sexual acts between adults andchildren repulsive. [57] Mr.

Tremblay admitted that eventually he became interested or aroused by the images and commented that, "If you stare intothe abyss long enough, eventually it stares back at you." He stated that he rationalizes his behaviour with thoughts that if childpornography is made available, it can't be that bad. He also reasoned that it was only truly wrong, if actual force was being used. [58] Mr. Tremblay advised that he searched for images depicting children between the ages of 12 and 17, however he laterverbalizes, sexual attraction is for individuals 16 to 24 and emphasized that they need to be sexually mature. Mr.

Tremblay admitted thathe did not consider the concept of a child's inability to give consent. He continued to express poor insight into this issue with thecomment that, "some 12 or 13 year olds are mature enough to give consent to sexual activity and can make competent decisions." [59] And further, Mr. Tremblay says, "I'm a complete hypocrite. I knew that what I was doing was illegal (at the time). If I couldgo back and erase it, I would, but I can't change the past." He stated that, "I acknowledge my guilt and want to take responsibility andpay the penalty." [60] When asked to comment on victim impact, Mr.

Tremblay did not appear to understand the impact on the children depicted inthe images. He did note that his wife was extremely hurt by his actions and it has increased the stress level of other family members. Inmy view, these statements suggest that the remorse that Mr. Tremblay feels is more remorse for the destruction he's brought uponhimself and those he loves, than for the innocent victims of these horrific crimes. See, R. v. Brock, 2010 ONSC 3117. [61] The collection in question was expansive and contained pictures of the most violent depraved sort.

The level of destructionwrought upon the thousands of victims represented in those images is almost unimaginable.

Section 718.01 mandates that principles ofdenunciation and deterrence of this very behaviour is paramount, and in my view on these facts those objectives cannot be met withanything less than a substantial term in custody. [62] This principle is also reflected of course, in 718.2(2.1). In my view, the fit and proper sentence for these matters is eighteenmonths in custody, followed by two years’ Probation. The terms of his Probation will be as follows.

[ 63 ] 2001; You must keep the peace and be of good behaviour. You must appear before the Court when required to do so by the Court. You must notify the Court or your Probation Officer in advance of any change of name or address and promptly notify the Court of any change of employment or occupation. [ 64 ] 2104; You must report in person to a Probation Officer in Vernon, British Columbia, within two business days after your release from custody unless you have, prior to your release, a written permission from the Probation Officer, to report elsewhere within a different time frame.

After that, you must report as directed by your Probation Officer. [ 65 ] 2203; You must reside at a residence approved in advance by the Probation Officer. You must provide your Probation Officer with your phone number and you must not change your residence or your phone number without written permission from your Probation Officer. [ 66 ] 2501; You must attend, participate in and successfully complete any Intake Assessment, Counselling or program as directed by your Probation Officer.

Without limiting the general nature of this condition, the Intake, Assessment, Counselling or program may relate to Sexual Abuse Prevention and Mental Health. [ 67 ] An additional term; you shall advise your Probation Officer of any and all electronic devices to which you have private access that are capable of accessing the internet. [ 68 ] Number 2; You must not access the internet at any time other than to conduct lawful and legitimate business.

You must not delete any images, URLs or websites from your computer, except with the express written permission of your Probation Officer or a peace officer which permission must only be given after your Probation Officer or a peace officer has been given access to and an opportunity to review the entire contents of all your electronic devices. [ 69 ] You will provide your Probation Officer or any peace officer, at their request, with access to all electronic devices which you have used and which are capable of accessing the internet, and provide him or her with all passwords, security codes, or other measures necessary to provide complete access to every part of your electronic device. [ 70 ] There will be a 490.013 Order for 10 years. [ 71 ] There is also a DNA Order which attaches as a primary designated offence; 487.051. [ 72 ] Ms.

Devji: One other thing that was brought up last time, I believe the accessing is Kienappled with the possession. I am asking for a Judicial Stay on that. [ 73 ] He is sentenced to 18 months on each count to be served concurrently. In my view, accessing child pornography involves a separate element from simply possessing child pornography. The actus reus requires an active action by the offender to get material.

Possession of child pornography can be an entirely passive event that the material is simply, for example, someone takes possession of a laptop that belonged to their brother and becomes aware that it contains child pornography. They have never accessed the child pornography. In my view, accessing child pornography, the actus reus is to go out actively and seek it, download it, whatever. I do not think it means simply that I go onto my computer and unbeknownst to me, there it is. That would be possession. So, I think they each have separate elements.

I think they are essentially the same offence in this case, and so it should have no consequence on the sentence, but I do not think it is Kienappled . (REASONS CONCLUDED)