R. v. Butler, 2017 NLCA 69

Robert Butler (applicant/appellant) v. Her Majesty the Queen (respondent) (17/96) Indexed As: R. v. Butler 2017 NLCA 69 2 C.A.N.L.R. 363 Court of Appeal of Newfoundland and Labrador Welsh J.A. November 27, 2017

Summary: The applicant, Robert Butler, applied for judicial interim release pending the determination of his appeal of a total sentence of twelve months’ imprisonment after his guilty plea to a charge of possession of child pornography contrary to

section 163.1(4) (

a) of the Criminal Code and of distributing child pornography contrary to

section 163.1(3) of the Code . Held: Application dismissed. Welsh J.A.: Because this is an appeal against sentence only, Mr. Butler may be considered for judicial interim release only if he first obtains leave to appeal the sentences as per section 679(1) (

b) of the Criminal Code . If leave to appeal is granted, section 679(4) sets out the criteria to be applied in assessing the application for judicial interim release. The test to be applied in determining whether leave to appeal should be granted is whether the appeal is frivolous in the sense of having no arguable basis or sufficient merit. A sentence appeal will be allowed only when the sentencing judge’s reasoning reveals an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor that had an impact on the sentence.

The applicant argued that the judge erred in principle regarding the effect of the mandatory minimum sentences that applied to the offences. The trial judge was aware of mandatory minimums for the offences in the Code , but did not find it necessary to apply them on the facts of this case. That is, he did not take the position that, but for the mandatory minimum sentences, he would have imposed sentences less than the specified minimums. The applicant also argued that the judge erred by refusing to order that the sentence be served conditionally in the community.

However, despite recognizing that individuals who commit such offences may have psychiatric difficulties that should be addressed, the sentencing judge considered purposes and principles of sentencing, the nature of the offences and the degree of responsibility of Mr. Butler, the particular needs of Mr. Butler, and being quite cognizant of the precedents in this and other jurisdictions, was of the view that the range of sentence for Mr. Butler should be from 8 months to 18 months incarceration for the possession of child pornography charge.

Then applying the principle of totality, the trial judge ordered the sentences to be served concurrently. He concluded that the total twelve month sentence was fit and proportional. The judge then dismissed Mr. Butler’s submission that it was incumbent on the judge to address the mandatory minimum sentences in the context of

section 12 of the Canadian Charter of Rights and Freedoms by using hypotheticals.

It is clear from the decision of the trial judge that he did not focus excessively on denunciation and deterrence, but understood Mr. Butler’s situation. The judge explained how Mr. Butler’s mental health issues could be addressed in the penitentiary. No specific evidence of available care in prison was required. It was sufficient for the judge to take judicial notice of the fact that prison authorities are required to provide psychiatric care for inmates where necessary. Mr. Butler’s appeal does not meet the threshold for granting leave to appeal because it has no arguable basis or sufficient merit.

Thus the application for leave to appeal was dismissed and so was the application for judicial interim release. Cases cited: R. v. Hillier , 2016 NLCA 21 , 377 Nfld. & P.E.I.R. 121 R. v. Lacasse , 2015 SCC 64 , [2015] 3 S.C.R. 1089 Counsel: Stephen P. Orr, for the applicant/appellant; Iain R. W. Hollett, for the respondent. This application was heard on November 22, 2017 before Welsh J.A.

The following reasons for decision were delivered on November 27, 2017 by Welsh J.A. ______________________________________________________________ Welsh J.A.: [ 1 ] Robert Butler pleaded guilty to and was convicted of one count of possession of child pornography contrary to

section 163.1(4) (

a) of the Criminal Code , for which he was sentenced to ten months imprisonment; and one count of distributing child pornography contrary to

section 163.1(3) of the Code , for which he was sentenced to twelve months imprisonment. The sentences were ordered to be served concurrently for a total of twelve months. Mr. Butler has appealed the sentences. [ 2 ] This is an application for judicial interim release pending the determination of his appeal. However, because this is an appeal against sentence only, Mr. Butler may be considered for judicial interim release only if he first obtains leave to appeal the sentences. Section 679(1) (

b) of the Criminal Code provides: A judge of the court of appeal may, in accordance with this section, release an appellant from custody pending the determination of his appeal if, … (

b) in the case of an appeal to the court of appeal against sentence only, the appellant has been granted leave to appeal; … [ 3 ] If leave to appeal is granted, section 679(4) sets out the criteria to be applied in assessing the application for judicial interim release: In the case of an appeal referred to in paragraph (1)(b), the judge of the court of appeal may order that the appellant be released pending the determination of his appeal … if the appellant establishes that (

a) the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if he were detained in custody; (

b) he will surrender himself into custody in accordance with the terms of the order; and (

c) his detention is not necessary in the public interest. Leave to Appeal [ 4 ] The test to be applied in determining whether leave to appeal should be granted is whether the appeal is “frivolous in the sense of having no arguable basis or sufficient merit” ( R. v. Hillier , 2016 NLCA 21 , 377 Nfld. & P.E.I.R. 121 , at paragraph 7 ). [ 5 ] In order to determine whether the threshold for leave to appeal is satisfied, it is necessary to consider the law regarding sentence

appeals. The principles are discussed in R. v. Lacasse , 2015 SCC 64 , [2015] 3 S.C.R. 1089 . In particular, Wagner J., for the majority, explained: [43] … I agree that an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor can justify the intervention of an appellate court and permit that court to inquire into the fitness of the sentence and replace it with the sentence it considers appropriate.

However, in my opinion, every such error will not necessarily justify appellate intervention regardless of its impact on the trial judge’s reasoning. … [44] In my view, an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor will justify appellate intervention only where it appears from the trial judge’s decision that such an error had an impact on the sentence. This provides the context within which to consider whether leave to appeal should be granted. [ 6 ] Turning to Mr.

Butler’s appeal, I begin with the submission that the judge erred in principle regarding the effect of the mandatory minimum sentences that applied to the offences. At the time the offences were committed, between October 2011 and June 2013, the Criminal Code provided for mandatory minimum sentences of forty-five days for possessing and one year for distributing child pornography. The trial judge was aware of these minimums, but did not find it necessary to apply them on the facts of this case.

That is, he did not take the position that, but for the mandatory minimum sentences, he would have imposed sentences less than the specified minimums. [ 7 ] At the hearing of this application, Mr. Butler indicated that he was not seriously challenging the length of sentence, but that the judge erred by refusing to order that the sentence be served conditionally in the community. This submission is consistent with his position at trial where the judge explained (unreported decision): [34] While counsel for Mr.

Butler does not dispute the general range of sentences imposed, he takes the position that because of the lower number of files in this case, as well as the special circumstances of Mr. Butler, pursuant to the sentencing provisions of the Criminal Code , a court would, absent the mandatory minimums, impose a non-custodial sentence for Mr. Butler. The defence argues that the accused is a first time offender. He is a young man who had been the subject of a sexual assault which has gravely affected him.

He has struggled socially since that event, and according to the evidence from his parents has become more reclusive and depressed. His psychologist has testified that Mr. Butler has severe feelings of hopelessness, is severely depressed, and has had suicidal ideation. She expressed concern that if he were incarcerated that the possibility of suicide becomes more possible. He has attended several counselling sessions with his psychologist from 2013 onward, but it had only been in the spring of this year [2017] that she recommended that he seek psychiatric assistance for his issues.

To the date of the conclusion of hearing evidence in this matter, Mr. Butler had not availed of any psychiatric intervention. The defence argues that in particular because of the risk that Mr. Butler may attempt suicide if incarcerated, that to sentence him using the mandatory minimums would be cruel and unusual punishment, and therefore contrary to

section 12 of the Charter . … [36] In my view Mr. Butler was searching for child pornography for some time during the offence period, and was active in doing so. He had during the time period covered by the charges in his possession a total of 110 images of child pornography and 16 child pornography videos. To me this shows his interest in such activity and his willingness to cruise the internet to find such material. In addition 5 of the videos that were classified as child pornography were at some point or points made available for sharing with other like- minded individuals.

This shows not only the nature of the offences but the degree of responsibility of Mr. Butler in these offences. The nature of the offences and the degree of responsibility of the offender are the aggravating factors in this case. [37] The mitigating factors include the guilty plea, the fact that Mr.

Butler has no prior record, the fact that he had been the subject of a sexual assault at a younger age, his remorsefulness, and the present psychological difficulties which he is experiencing. … [ 8 ] The judge recognized that individuals convicted of these offences may have psychological or psychiatric difficulties that need to be addressed. He accepted: [37] … The evidence presented in this matter is that while the psychologist in this matter has concerns with respect to Mr.

Butler harming himself, she also recognized that with proper treatment that risk could be substantially reduced. … What I take from the report of the psychologist and from her testimony is that appropriate treatment from psychiatric services could alleviate many of Mr. Butler’s mental health issues. Unfortunately to the court’s knowledge he has not as yet availed of such intensive counselling.

While I have no evidence of the types of psychiatric treatment available in the prison settings in this province, I am aware that psychiatric services are available, once psychiatric concerns are raised. (See below my comments on the court’s intention in this regard.) In addition, as noted by Crown counsel, Mr. Butler would be under much more stringent supervision in a prison setting than presently exists for him in the community, also reducing the risk of suicidal concerns. [ 9 ] After recognizing Mr.

Butler’s distress, the judge continued: [38] … However, I am of the view that, as the psychologist recommends, intense counselling intervention will go a long way to assist in Mr. Butler coping with his present situation. This recommendation should be a strong focus for Mr. Butler’s rehabilitation. However, looking at the purposes and principles of sentencing, the nature of the offences and the degree of responsibility of Mr. Butler, the particular needs of Mr. Butler, and being quite cognizant of the precedents in this and other jurisdictions, I am of the view that the range of sentence for Mr.

Butler should be from 8 months to 18 months incarceration for the possession of child pornography charge. Should his mental issues reduce that sentence to a non-custodial one? I am of the view it should not. The expert opinion provided from Ms. Boland is that with proper counselling coupled in my view with proper supervision Mr. Butler should be able to cope with any setting, including an institutional setting. Communication to the prison authorities respecting Mr. Butler’s issues, including concerns for harming himself, should address the noted concerns.

Once the mental health issues are at least addressed, the argument for a non- custodial sentence dissipates. I am therefore of the view that Mr. Butler should, in the normal course, be subject to a cumulative

sentence of 12 months incarceration. … [ 10 ] Having imposed sentences of ten months imprisonment for possessing and twelve months for distributing child pornography, applying the principle of totality, the trial judge ordered the sentences to be served concurrently. He concluded that the total twelve month sentence was fit and proportional. [ 11 ] Finally, the judge dismissed Mr. Butler’s submission that it was incumbent on the judge to address the mandatory minimum sentences in the context of

section 12 of the Canadian Charter of Rights and Freedoms by using hypotheticals.

Section 12 of the Charter provides: Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. The judge explained: [40] … The [provincial] court does not have authority to declare a particular

section of the Criminal Code unconstitutional in relation to all matters. Therefore the [Supreme Court of Canada] stated that a provincial court judge may decline to consider reasonable hypotheticals where it has already determined that in respect of the particular case before it the mandatory minimums do not violate

section 12 of the Charter . As I have already determined that with respect to the case of Mr. Butler the mandatory minimums do not violate

section 12 of the Charter , I see no need to delve into the reasonable hypothetical world. It will not affect the sentence of Mr. Butler, and would not affect any other case. [ 12 ] Finally, the trial judge attached to the warrant of committal the report provided by the psychologist together with “correspondence to the head of Her Majesty’s Penitentiary drawing specific attention to the suicidal ideation as set out in that report” (paragraph 48). [ 13 ] In addressing the threshold requirement for the granting of leave to appeal, Mr.

Butler relied on submissions similar to those made before the trial judge to demonstrate that the appeal against sentence is not frivolous in the sense of having no arguable basis or sufficient merit. First, he submits that the trial judge focused on the sentencing principles of denunciation and deterrence to the exclusion of other factors. In particular, Mr. Butler emphasized his mental health issues. [ 14 ] However, it is clear from his decision that the trial judge understood Mr. Butler’s situation, particularly his distress. Based on the report and testimony of the psychologist, the judge concluded that Mr.

Butler’s mental health issues related to the prospect of going to prison. The judge explained how those issues could be addressed in the penitentiary. [ 15 ] In response, Mr. Butler submits that there was no evidence upon which the judge could base that conclusion. I do not accept Mr. Butler’s proposition that it was necessary to have evidence regarding what specific psychiatric assistance was available in the prison. It was sufficient for the judge to take judicial notice of the fact that prison authorities are required to provide psychiatric care for inmates where necessary.

The judge took the step of attaching to the order of committal the psychologist’s report, together with an explanatory letter. The authorities were thereby put on notice regarding Mr. Butler’s condition. Indeed, he has been transferred from the penitentiary to a mental health facility. [ 16 ] Mr. Butler also submits that the judge erred by not considering hypotheticals when addressing his submissions under

section 12 of the Charter . That proposition is without foundation for the reasons set out by the trial judge (paragraph 11, above). [ 17 ] As set out above, the trial judge considered the aggravating and mitigating circumstances, addressed appropriate ranges for the offences, applied the law, and concluded that a fit and proportional sentence was twelve months in prison. He considered the option of a conditional sentence and rejected it, with reasons.

The mandatory minimum sentences for the two offences did not enter into the analysis and determination of an appropriate sentence. [ 18 ] In the result, I am satisfied that Mr. Butler’s appeal does not meet the threshold for granting leave to appeal. Applying the principles set out in Lacasse , the appeal has no arguable basis or sufficient merit. [ 19 ] Accordingly, leave to appeal is denied. Having failed to establish that preliminary but necessary criterion, it follows that Mr. Butler’s application for judicial interim release is dismissed. Application dismissed .