Her Majesty the Queen - v. -, 2017 SKPC 87

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 087 Date: November 14, 2017 Information: 991008556 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Philip Michael Chicoine Appearing: Lana Morelli For the Crown Valerie Harvey For the Accused Note: Pursuant to s. 486.4 of the Criminal Code , the Court made an order directing that the identity of the complainant or a witness, and any information that could disclose the identity of the complainant or witness, shall not be published in any document or broadcast in any way. SENTENCING DECISION V.L. MONAR ENWEANI , J Introduction

[ 1 ] I heard evidence and submissions regarding sentencing in this matter on June 19 and June 29, 2017. The matter was reserved to today’s date for my decision. Factual Background [ 2 ] The facts were presented to the Court over the course of a two-day sentencing hearing. The Court heard testimony from Corporal Clarke, viewed a representative sample of the accused’s child pornography collection, and received several exhibits filed by the Crown. The Court also had the benefit of a Pre-Sentence Report and written submissions from counsel.

As counsel were generally in agreement regarding the circumstances of the offences, I will only briefly review the facts. [ 3 ] On April 28, 2017, Mr. Chicoine pleaded guilty to 40 offences on Information #991008556 as follows: Count(

s) Charge ( Criminal Code ) 1 s. 163.1(4) Possess child pornography 6, 10, 20, 25, 26, 27, 30, 31, 32, 34, 46, 51, 56, 59 s. 163.1(3) Distribute child pornography 57 s. 163.1(2) Make child pornography 5 s. 163.1(4.1) Access child pornography 37, 40, 42, 45, 62 s. 171.1(1)(

a) Make sexually explicit material available to a child 17, 36, 41, 43, 61 s. 172.1(1)(

a) Lure a child to make child pornography 18, 39 s. 172.1(1)(

b) Lure a child to commit a sexual assault 3, 7, 11 s. 172.2(1)(

a) Agreement to make child pornography 8, 15 s. 172.2(1)(

b) Agreement to commit a sexual assault against a child 50, 54 s. 465(1)(

c) Conspiracy to commit a sexual assault 49, 52, 55, 58 s. 465(1)(

c) Conspiracy to make child pornography

[ 4 ] The offences occurred between the time period of January 7, 2011 and March 9, 2017. [ 5 ] Mr. Chicoine was found to be in possession of a relatively large collection of child pornography. He accessed child pornography and used peer-to-peer file sharing programs to share or distribute child pornography to 14 separate individuals/groups. [ 6 ] Mr. Chicoine made child pornography, primarily by taking screen shots from Skype chats, and paid others to make child pornography for him.

Generally speaking, he communicated with adult offenders in Romania and the Philippines, paying these individuals to sexually abuse children, often directing them specifically what to do. The adult offenders would then live stream the abuse via Skype or send pre-recorded videos. Typically, these live streamed shows involved children between the ages of four and nine years old and adult females, displaying their genitalia and engaging in oral sex.

This is the conduct giving rise to the charges of making child pornography, agreeing and conspiring to make child pornography, and agreeing and conspiring to commit sexual assault. [ 7 ] Mr. Chicoine also communicated with children directly, giving rise to the charges of luring a child and making available sexually explicit material to a child. Specifically, he communicated with children as young as nine years old, sending them images of his erect penis, and asking them to make and/or send him child pornography. Over a period of approximately six months, Mr.

Chicoine sent 14 year old J.C. sexually explicit images of himself, and violent and sexually graphic chat messages. He asked her to send him pictures of her vagina and to give his Viber account to her classmates. He also sent her money in exchange for child pornography. J.C. sent Mr. Chicoine child pornography, including images of her six year old sister’s vagina. In the case of M., Mr. Chicoine again sent money in exchange for child pornography, and asked for his Viber account to be sent to other little girls. [ 8 ] In the case of J.T., Mr.

Chicoine sent sexually explicit material and J.T. sent pornographic images in return. While the communication lasted for only a brief period of time, Mr. Chicoine attempted to meet with J.T. in person. [ 9 ] In the cases of K., S., and A. H., Mr. Chicoine communicated with the child victims over a period of either several days or just over a month, sending them sexually explicit images of himself and asking them to send him images in return. He received images from K. and A.H. [ 10 ] The exact number of child victims impacted by Mr. Chicoine’s actions will never be known.

However, with respect to the charges of child luring, there are a total of six known child victims, living in Australia, the Philippines, the United States, and in Saskatoon, Saskatchewan. [ 11 ] Mr. Chicoine chatted with like-minded adult offenders and with children on various messaging apps including Skype, Kik, Free Tone, Text Free, Yahoo Messenger, and Viber. In his communications with both adults and children he comes across as callous, exploitative, and boastful of his ability to manipulate young children. A total of approximately $21,000.00 was paid by Mr.

Chicoine in exchange for child pornography/live streamed shows. [ 12 ] Mr. Chicoine’s child pornography collection included 4,132 unique images of child pornography and 582 unique videos of child pornography. Corporal Clarke, an experienced ICE investigator and instructor, testified that although this was not the largest collection he had ever encountered, it was in fact the worst collection he had ever seen in terms of its violent and graphic content. On cross-examination, Corporal Clarke agreed Mr. Chicoine did not ever try to minimize his involvement or divert blame.

He was cooperative with police and disclosed to them additional devices at his home. Position of the Parties

[ 13 ] The Crown submits that, as many of the offences should receive consecutive sentences, an appropriate disposition is 77 years incarceration. However, adjusting for the totality principle and all relevant factors, the Crown seeks a sentence of 17 years incarceration (less remand credit), a lifetime s. 161 order, and an order delaying parole pursuant to s. 743.6 of the Criminal Code . [ 14 ] Defence counsel argues that a sentence of 7 years incarceration is a fit sentence, that there should be no order delaying parole, and that a s. 161 order for a duration of 5 years is appropriate. Issues 1.

What is a fit and proportionate sentence? 2. Should parole eligibility be delayed pursuant to s. 743.6 of the Criminal Code ? 3. What are the appropriate ancillary orders? Analysis 1. What is a fit and proportionate sentence? [ 15 ] My task is to determine the appropriate sentence for Mr. Chicoine. Sentencing is always difficult, and is even more so in this case where Mr. Chicoine, a young man with no criminal record and a supportive and loving family, has committed horrendous crimes against numerous children, often conspiring with other adult offenders to do so. The Offender [ 16 ] Mr. Chicoine is 28 years old.

He has one sibling, and loving and responsible parents. [ 17 ] Mr. Chicoine was a socially awkward and sensitive child who was often picked on. He struggled with learning in school and was treated for Attention Deficit Disorder. He kept to himself in high school. A Psycho-educational Report prepared at the time Mr. Chicoine was in Grade 11 concluded he had a learning disability which affected his working memory and the processing of verbal information. Potential behavioural and emotional difficulties were also noted, and further assessment by a psychiatrist was recommended. As an adult, Mr.

Chicoine suffers anxiety in social settings and largely spends his time alone. He is single and has never been married. The Pre-Sentence Report notes that he had his first sexual experience with a woman when he was approximately 26 years old. He started viewing child pornography in excess in 2011. His use escalated to the point where he did not know how to stop. [ 18 ] Mr. Chicoine has worked as a scaffolder since 2009. At the time of the offences, he was living with his parents. He was put on suicide watch upon being charged and remanded to the Saskatoon Correctional Centre.

The Pre-Sentence Report indicates that he has been assessed as a low risk to re-offend generally and is in the moderate to high risk category for re-offending in a sexual manner. He is interested in sex offender treatment and would like to see a psychiatrist or psychologist to be assessed for potential anxiety disorder. Relevant Legal Principles [ 19 ] As noted by Kalmakoff, J (as he then was) in R v Macri, 2012 SKPC 94 , 400 Sask R 130, the circumstances of the offender cannot be my sole focus in determining the appropriate sentence. My decision must be guided by the provisions of s. 718 to s. 718.2 of

the Criminal Code, RSC 1985, c C-46 [ Criminal Code ].

Section 718 sets out the fundamental purpose of sentencing and the objectives which the sentence should attempt to achieve: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 20 ] As set out in s. 718.1 of the Criminal Code , the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The gravity of the offence lies in its nature, comparative seriousness, and in the harm caused in its commission. The degree of responsibility relates to the offender’s moral culpability in committing the offence. As Mr.

Justice Lebel explained in R v Ipeelee , 2012 SCC 13 at para 37 , [2012] 1 SCR 433, proportionality is the hallmark, or essential ingredient, of a just sanction. Regardless of the emphasis given to the various sentencing objectives, the resulting sentence must respect the principle of proportionality. [ 21 ]

Section 718.2 of the Criminal Code requires a sentencing judge to also take into consideration aggravating and mitigating circumstances, parity, totality, and the need to consider all available reasonable sanctions other than imprisonment. Proportionality: gravity of the offence and degree of responsibility of the offender [ 22 ] The offences committed by Mr. Chicoine are very serious. The objective gravity of the offences is evident from the fact that all carry mandatory minimum sentences of incarceration. As noted by Crown counsel, with only two exceptions, the offences Mr.

Chicoine pleaded guilty to carry mandatory minimum sentences of one year incarceration, and maximum sentences of fourteen years. [1] [ 23 ] Further indication from Parliament of the objective gravity of the offences is found in s. 718.3(7) which was added to the Criminal Code in 2015 with the passage of the Tougher Penalties for Child Predators Act, SC 2015, c 23. Although Clayton C.

Ruby in Sentencing , 9 th ed (Toronto: Lexis Nexis, 2017) at 604 [ Sentencing ] notes this provision is relatively new and has not yet been the subject of meaningful judicial analysis, it appears to mandate that consecutive sentences be imposed where an offender is sentenced at the same time for a child pornography offence and another sexual offence committed against a child, or for sexual offences (other than child pornography offences) committed against more than one child.

It reads as follows: 718.3(7) When a court sentences an accused at the same time for more than one sexual offence committed against a child, the court shall direct (

a) that a sentence of imprisonment it imposes for an offence under

section 163.1 be served consecutively to a sentence of imprisonment it imposes for a sexual offence under another

section of this Act committed against a child; and (

b) that a sentence of imprisonment it imposes for a sexual offence committed against a child, other than an offence under s. 163.1, be served consecutively to a sentence of imprisonment it imposes for a sexual offence committed against another child other than an offence under s. 163.1. [ 24 ] The Saskatchewan Court of Appeal noted in R v McLean , 2016 SKCA 93 [ McLean ] that the focus of a sentencing hearing for persons who have exploited children must be on the harm caused to the child by the offender’s conduct and the life altering consequences that flow from it.

Denunciation, deterrence and the need to separate sexual predators from society take the forefront. [2] Ottenbreit, JA further noted that the gravity of these kinds of offences is evident is ss.718.01 and 718.2 (a)(ii.1) of the Criminal Code ,

which direct a court to give primary consideration to the objectives of denunciation and deterrence, and deem abuse of a person under theage of 18 years an aggravating circumstance. [25] The offences in this case involve children who are inherently vulnerable. Mr. Chicoine lured children to send himpornographic images of themselves and others. He also paid adult offenders living in Romania and the Phillippines to sexually abusechildren. That sexual abuse was then live streamed via Skype.

The harm caused by child pornography was discussed by the SupremeCourt of Canada in R v Sharpe, 2001 SCC 2, [2001] 1 SCR 45, and the seriousness of luring as an offence was recently discussed in R vMiller, 2016 SKCA 32, 476 Sask R 150. There are six named child victims in the luring counts to which Mr. Chicoine has pleadedguilty, but countless others affected by his possession, distribution and making of child pornography. [26] Mr. Chicoine has entered guilty pleas in relation to offences covering a time period between January 2011 and March 2017.

The Crown says this a period of offending of 6 years.[3] However, as noted by defence counsel, the offending behaviour appears to haveoccurred primarily in the year 2011, and then again between the years 2014 - 2017. This is nevertheless a significant period ofoffending. [27] Mr. Chicoine had a relatively large child pornography collection. The depravity of the collection is almost incomprehensible. Corporal Clarke described the collection as the worst he has ever seen, one that caused him nightmares and to seek professional help. Mr. Chicoine’s actions were not inadvertent.

They were calculated and planned. [28] Unlike many of the cases cited by the Crown, Mr. Chicoine was not in a position of trust with respect to the childvictims. Further, Mr. Chicoine did not engage in hands-on sexual offending of children. However, he lured children over the Internetand made child pornography by taking screen shots from Skype chats. And he facilitated the hands-on sexual abuse of children and themaking of child pornography by providing others with monetary incentive and by directing them to perform certain acts on children. Considering all of the circumstances, Mr.

Chicoine’s degree of responsibility is very high. Purpose and Objectives of Sentencing [29] As already noted, the sentencing objectives of denunciation, deterrence and the need to separate sexual predators fromsociety, must be given primary consideration. A lengthy period of incarceration is clearly warranted. There is no sanction other thanimprisonment that is reasonable in the circumstances. [30] Having said that, the sentence should also further the objective of rehabilitating the offender. This is an objective that mustbe given some emphasis on the particular facts of this case as Mr.

Chicoine is a relatively young man with strong family support, noprior criminal record, and a willingness to engage in treatment. Relevant aggravating and mitigating factors [31] As noted by Judge Agnew in R v Burke, 2015 SKPC 173, a partial list of aggravating and mitigating factors in childpornography cases was set out by Molloy J. in R v Kwok, (ON SC), [2007] OJ No 457 (QL) (Ont Sup Ct) at para 7: Not surprisingly, each case turns on its own particular facts. However, an analysis of the case law does reveal an emerging consensus onthe relevant factors to be taken into account: see, in particular, R. v.

Parise, [2002] O.J. No. 2513 (Ont.C.J.); R. v. Mallett, [2005] O.J.No. 3868 (S.C.J.). Generally speaking, any of the following are considered to be aggravating factors: (

i) a criminal record for similar orrelated 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) theextent to which the offender is seen as a danger to children (including whether he is a diagnosed pedophile who has acted on hisimpulses in the past by assaulting children); and (vi) whether the offender has purchased child pornography thereby contributing to thesexual victimization of children for profit as opposed to merely collecting it by free downloads from the Internet. Generally recognizedmitigating factors include: (

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

v) whether the offender is willingto submit to treatment and counseling or has already undertaken such treatment; (vi) the existence of a guilty plea; and (vii) the extent towhich the offender has already suffered for his crime (for example, in his family, career or community).

[ 32 ] I consider the following to be aggravating factors in this case: ∙ there was production and distribution of child pornography by Mr.

Chicoine; ∙ the child pornography collection was large at 10,126 images and videos, of which 4,714 were unique (4,132 unique images and 582 unique videos); ∙ the nature of the collection is extremely aggravating - it involves very young children including infants, and contains a significant portion of violent material depicting the torture and bondage of children; ∙ although the Court did not have the benefit of a current psychiatric or psychological assessment of the accused to indicate whether he is a diagnosed paedophile, the Pre-Sentence Report indicates that a Sexual Offender Risk Assessment was conducted and Mr.

Chicoine is in the moderate to high risk category for being charged or convicted of another sexual offence; ∙ Mr. Chicoine purchased child pornography, thereby contributing to the sexual victimization of children for profit, by paying the sum of approximately $21,000.00 to other adult offenders or directly to children; ∙ Mr.

Chicoine’s actions have had a significantly negative impact on an immeasurable number of child victims - the six child victims that he made sexually explicit material available to and lured, the children that were impacted when he agreed or conspired with adult offenders to make child pornography or to commit sexual assaults against those children, and countless others depicted in the child pornography that he accessed, possessed, and distributed. [ 33 ] I consider the following to be mitigating factors: ∙ Mr.

Chicoine’s relative youth - he was between the ages of 21 to 27 when the offences were committed; ∙ the otherwise good character of Mr. Chicoine; ∙ the entering of guilty pleas at the earliest opportunity; ∙ the genuine remorse demonstrated by Mr. Chicoine for his offences, demonstrated through his cooperation with the police in their investigation of both his offences and those of other adult offenders; ∙ Mr. Chicoine’s willingness to submit to treatment and counselling; and ∙ Mr. Chicoine has suffered for his crimes in the sense that he knows his conduct has devastated his loving and supportive family members.

Aggregate sentence before totality [ 34 ] In discussing the totality principle, Ruby in Sentencing states the following: The sentencing judge should fix appropriate individual sentences to arrive at a total sentence, and then adjust the total sentence in one of the ways referred to above to make sure it does not exceed what would be just and appropriate in light of the culpability and prospects of the offender.

The judge should set out, with respect to each count, what the initial appropriate sentence would have been, subject to the application of the totality principle, and what change in that sentence or its consecutive nature is necessary to give effect to the totality principle.

If this is done, the public will be able to see that the sentence does bear a relationship to the offence and the offender, and this procedure will allow an appeal court to properly review the fitness of any particular sentence, and to adjust the sentence properly if an appeal against conviction on one or more counts is allowed. [4] [ 35 ] The approach outlined by Ruby was endorsed by the Saskatchewan Court of Appeal in McLean and R v Leroux , 2015 SKCA 48 , 460 Sask R 1, where the Court of Appeal rejected the practice of doing the totality analysis backwards by arriving at a global sentence first and then distributing that sentence amongst the various offences.

The proper approach is to first determine if consecutive sentences are appropriate and then apply the principle of totality. [ 36 ] Although the recommended approach is easy to understand, it can be difficult to apply in sentence hearings with numerous

offences.[5] The sentencing challenges posed here include the fact that there are 40 offences in total, involving multiple child victims,some of whom are named in more than one count; the offences involve numerous adult offenders with whom Mr. Chicoine shared childpornography, or with whom he conspired/agreed to make child pornography or sexually assault children; and the offences occurred overdifferent periods of time, generally either in the year 2011 or between 2014 to 2017.

Recognizing these difficulties, I now turn to firstdetermining if consecutive sentences are appropriate. [37] In McLean, the Saskatchewan Court of Appeal recognized the difficulty involved in determining whether to imposeconsecutive or concurrent sentences. Ottenbreit JA, stated as follows in relation to cases involving multiple victims: [54] Generally speaking, and subject to the totality principle, multiple offences against multiple victims may result in the lengthening ofthe overall sentence.

In the case of sexual offences on multiple victims, it may be more appropriate to impose consecutive sentences.Some courts have commented that to treat cases with multiple victims in close time proximity as a singular event would allow theoffender to commit crimes “cheaper by the dozen” (R v Maliki, 2005 BCCA 495 , 201 CCC (3d) 524; R v Berry, 2014 BCCA 7, 349 BCAC 76) or result in a “free ride” error (R v P.K., 2012 MBCA 69 , 286 CCC (3d) 112). [38] As noted earlier, s. 718.3(7) of the Criminal Code now mandates that consecutive sentences be imposed for childpornography offences pursuant to s. 163.1 and sexual offences committed against a child, and for sexual offences (other than s. 163.1child pornography offences) committed against more than one child.

In Mr. Chicoine’s case, only some of his offending behaviour occurred after June, 2015.[6] [39] While many offences should receive consecutive sentences, it is also appropriate for a number of offences to receiveconcurrent sentences. The 14 counts of distributing child pornography should attract consecutive sentences, as Mr. Chicoine distributedchild pornography to 14 separate groups/individuals, on distinct occasions, over a period of time from 2011-2017. In order to distributechild pornography, Mr. Chicoine had to possess it, and to possess it, he had to access it. There is a nexus between these offences.

Looking at his conduct as a whole and using a common sense approach, I conclude the sentences for possessing and accessing childpornography should be concurrent to the sentences for distributing child pornography. [40] Making child pornography is a distinct act. It involves conduct different from accessing, possessing, and distributing childpornography, and therefore the sentence should be consecutive. Here, the making of child pornography involved others. Mr. Chicoineagreed and conspired with others to sexually assault children and to make child pornography.

The 11 counts relating to agreement orconspiracy to sexually assault children and to make child pornography are all related to Mr. Chicoine’s conduct in making childpornography, and should be sentenced concurrently with the single count of making child pornography, which spans the time periodbetween 2011 to 2017. [41] Finally, the luring offences are sexual in nature, and involve conduct different from the offences described above.

Thesentences for the offences of luring involving six different child victims, which all occurred after June, 2015, must be consecutive to oneanother, in accordance with s. 718.3(7) of the Criminal Code. In the result, I determine the aggregate sentence to be as follows: Count(

s) Charge (Criminal Code) Sentence 6, 10, 20, 25, 26, 27, 30, 31,32, 34, 46, 51, 56, 59 s. 163.1(3) distribute childpornography 14 years (1 year on each countconsecutive) 1 s. 163.1(4) possess childpornography 2 years concurrent 5 s. 163.1(4.1) access childpornography 1 year concurrent 57 s. 163.1(2) make child pornography 6 years consecutive 3, 7, 11 s. 172.2(1)(

a) agreement to makechild pornography 2 years concurrent

49, 52, 55, 58 s. 465(1)(

a) conspiracy to make child pornography 2 years concurrent 8, 15 s. 172.2(1)(

b) agreement to commit a sexual assault against a child 2 years concurrent 50, 54 s. 465(1)(

c) conspiracy to commit a sexual assault against a child 2 years concurrent 18 s. 172.1(1)(

b) lure a child to commit a sexual assault (JC) 2 years consecutive 17 s. 172.1(1)(

a) lure a child to make child pornography (JC) 2 years concurrent 39 s. 172.1(1)(

b) lure a child to commit a sexual assault (JT) 2 years consecutive 40 s. 171.1(1)(

a) make sexually explicit material available to a child (JT) 6 months concurrent 36 s. 172.1(1)(

a) lure a child to make child pornography (AH) 2 years consecutive 37 s. 171.1(1)(

a) make sexually explicit available to a child (AH) 6 months concurrent 41 s.172.1(1)(

a) lure a child to make child pornography (S) 2 years consecutive 42 s. 171.1(1)(

a) make sexually explicit material available to a child (S) 6 months concurrent 43 s. 172.1(1)(

a) lure a child to make child pornography (K) 2 years consecutive 45 s. 171.1(1)(

a) make sexually explicit material available to a child (K) 6 months concurrent 61 s. 172.1(1)(

a) lure a child (

M) to make child pornography 2 years consecutive 62 s. 171.1(1)(

a) make sexually explicit material available to a child (M) 6 months concurrent

40 counts total 32 years incarceration Application of Totality Principle [ 42 ] Sections 718.2 (

c) of the Criminal Code provides that where consecutive sentences are imposed, the sentencing court must be mindful that the combined sentence should not be unduly long or harsh. Ruby in Sentencing notes that the totality principle is a particular application of the general principle of proportionality. He writes: It certainly requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender.

A sentence must not be crushing to a particular accused given his age, circumstances and prospects . . . [7] [ 43 ] In my view, a sentence of 32 years incarceration is not in keeping with Mr. Chicoine’s record and future prospects, and in fact would be crushing, serving to extinguish his rehabilitative potential. [ 44 ] Both Crown and defence counsel filed case authorities with the Court in support of their positions on sentencing.

The two ends of the spectrum on sentencing are represented by R v Pitts , (4 February 2015) Kentville (NS Prov Ct) (Tufts, J) [ Pitts ], aff ’ d 2016 NSCA 78 , cited by defence counsel, and R v Snook , 2013 NBPC 17 [ Snook ] , aff ’ d 2014 NBCA 71 , cited by the Crown.

While a consideration of case authorities is helpful, sentences for child abuse offences vary considerably, and I must ultimately determine the appropriate sentence after a full consideration of the aggravating and mitigating circumstances of this case. [8] [ 45 ] In Pitts , the accused pleaded guilty to eleven charges: one count of possessing child pornography, one count of accessing child pornography, one count of making child pornography and eight counts of conspiring to commit the indictable offence of sexual assault on a child.

He received a global sentence of seven years for conduct that was in many respects similar in nature to Mr. Chicoine’s. Mr. Pitts participated in live web streaming where he communicated with women in the Philippines and watched them or others engage in the sexual abuse of children, including directing particular acts to be undertaken for his viewing. He made some modest payment for the live shows. He was found to have collected, accessed and made child pornography. His child pornography collection was larger than Mr. Chicoine’s, at 16,500 unique images.

He was diagnosed as a paedophile and assessed as a high risk to re-offend. The sentencing judge commented that while Mr. Pitts did not touch any of the children, he was directly responsible for the abuse of the children during the live shows, because he was conspiring and agreeing to have them abused. He was not in a position of authority over the children. [9] [ 46 ] In contrast to Mr. Pitts, Mr.

Chicoine’s offending behaviour occurred over a longer period of time, his financial contributions (which led directly to the sexual assault of children and the making of child pornography) were considerably greater, and he pleaded guilty to forty separate counts, including numerous charges of child luring. [ 47 ] In Snook , the 41 year old accused, with no criminal record, pleaded guilty to 46 counts of making, distributing and possessing child pornography, sexual interference, invitation to sexual touching, sexual exploitation, child luring, sexual assault and extortion.

Seventeen young males were sexually abused in various ways by the accused over a period of 12 years. Three of the victims had longer term regular sexual contact with the accused. The majority of the offences were committed at the accused’s residence, and involved children who came into contact with the accused at a programme for children with which he was involved. One of the victims was the accused’s foster son. The accused was in a position of trust with respect to this victim and he was also an elected public official. Mr.

Snook was found to have groomed his child victims, setting a permissive atmosphere in his residence with alcohol and marijuana use by children and the viewing of pornography. He also provided financial incentives and rewards for sexual activity. He possessed a child pornography collection of 14,457 unique images. He pleaded guilty at an early opportunity and cooperated with the police. Mr. Snook received a global sentence of 18 years incarceration less remand credit.

[ 48 ] The Crown argued that an appropriate range of sentence would be between 14 and 18 years incarceration. In addition to Snook , a number of other cases were cited by the Crown. Generally speaking, those cases involved sentences between 14 to 18 years for serious hands-on sexual offending against children generally conducted by adults in positions of trust and authority, and often involving recurring or repeated sexual assaults over an extended period of time, and one even involving the administration of noxious substances.

In many of these cases, the offenders were parents or step-parents of the child victims. In my view, these cases are distinguishable from the case before me, and the sentencing range proposed by the Crown is too high. Mr.

Chicoine’s conduct is more similar in nature to the conduct of the offender in Pitts , but there are also more aggravating features present here than in Pitts . [ 49 ] Considering the circumstances of the offender and the circumstances of the offences, the purposes and principles of sentencing, the aggravating and mitigating factors, the cases cited to me by counsel, and taking into account the principle of totality, I find a fit and proper total sentence for this offender to be 12 years incarceration as follows: Count(

s) Charge ( Criminal Code ) Sentence Taking into Consideration Totality 6, 10, 20, 25, 26, 27, 30, 31, 32, 34, 46, 51, 56, 59 s. 163.1(3) distribute child pornography 1 year 1 s. 163.1(4) possess child pornography 1 year concurrent 5 s. 163.1(4.1) access child pornography 1 year concurrent 57 s. 163.1(2) make child pornography 5 years consecutive 3, 7, 11 s. 172.2(1)(

a) agreement to make child pornography 1 year concurrent 49, 52, 55, 58 s. 465(1)(

a) conspiracy to make child pornography 1 year concurrent 8, 15 s. 172.2(1)(

b) agreement to commit a sexual assault against a child 2 years concurrent 50, 54 s. 465(1)(

c) agreement to commit a sexual assault against a child 2 years concurrent 18 s. 172.1(1)(

b) lure a child to commit a sexual assault (JC) 1 year consecutive 17 s. 172.1(1)(

a) lure a child to make child pornography (JC) 1 year concurrent 39 s. 172.1(1)(

b) lure a child to commit a sexual assault (JT) 1 year consecutive 40 s. 171.1(1)(

a) make sexually explicit material available to a child (JT) 6 months concurrent

36 s. 172.1(1)(

a) lure a child to make child pornography (AH) 1 year consecutive 37 s. 171.1(1)(

a) make sexually explicit material available to a child (AH) 6 months concurrent 41 s.172.1(1)(

a) lure a child to make child pornography (S) 1 year consecutive 42 s. 171.1(1)(

a) make sexually explicit material available to a child (S) 6 months concurrent 43 s. 172.1(1)(

a) lure a child to make child pornography (K) 1 year consecutive 45 s. 171.1(1)(

a) make sexually explicit material available to a child (K) 6 months concurrent 61 s. 172.1(1)(

a) lure a child to make child pornography (M) 1 year consecutive 62 s. 171.1(1)(

a) make sexually explicit material available to a child (M) 6 months concurrent Total Sentence 12 years [ 50 ] Mr. Chicoine has been in custody since March 9, 2017. At the time of sentencing on November 14, 2017, he will have spent 251 days on remand. Mr. Chicoine will be given credit for the time spent in custody prior to sentencing at the rate of 1.5 to 1, which amounts to 12.5 months remand credit. Accordingly, taking into account remand credit of 12.5 months, I am imposing a sentence of 10 years, 11.5 months incarceration from today’s date. 2.

Should parole eligibility be delayed pursuant to s. 743.6 of the Criminal Code ? [ 51 ] The Crown seeks an order that the accused’s parole be delayed for half of the sentence pursuant to s. 743.6 of the Criminal Code . Defence submits that there is no basis for the making of such an order. Pursuant to s. 743.6 , judges may at the time of sentencing increase the time prisoners must serve before becoming eligible for parole from one-third to one-half of the sentence or ten years, whichever is less.

Section 743.6 reads as follows: 743.6

(1) Notwithstanding subsection 120(1) of the Corrections and Conditional Release Act , where an offender receives, on or after November 1, 1992, a sentence of imprisonment of two years or more, including a sentence of imprisonment for life imposed otherwise than as a minimum punishment, on conviction for an offence set out in

Schedule I or II to that Act that was prosecuted by way of indictment, the court may, if satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society ’ s denunciation of the offence or the objective of specific or general deterrence so requires, order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence or ten years, whichever is less. ...

(2) For greater certainty, the paramount principles which are to guide the court under this

section are denunciation and specific orgeneral deterrence, with rehabilitation of the offender, in all cases, being subordinate to these paramount principles. [52] In R v Zinck, 2003 SCC 6, [2003] 1 SCR 41 [Zinck], the Supreme Court of Canada discussed the nature of orders for delayedparole and the two-step intellectual process that a sentencing judge must use when deciding whether to delay parole. At the first stage,the judge must decide what would be the appropriate punishment for the crime. The issue of parole eligibility is not considered at thisstage.

Next, the analysis shifts to the exercise of the power to delay parole. At the second stage, the judge must, once again, apply thesentencing factors. However, in the course of this second balancing, priority must be given to the factors of general and specificdeterrence and of denunciation.

In Zinck, supra, the Supreme Court of Canada stated as follows: At this stage, having given priority to the factors of deterrence and denunciation as required by law, and having duly considered all thecriteria and principles relevant to sentencing, based on the evidence at the sentencing hearing and at trial, the court must arrive at itsconclusion as to whether this additional punishment is required. The prosecution has the burden of demonstrating that it is.

The judgemust satisfy himself or herself that the order is needed to reflect the objectives of sentencing, with awareness of the special weight ascribed by Parliament to the social imperatives of denunciation and deterrence . . .[10] [53] It was also made clear by the Supreme Court of Canada in Zinck that delayed parole is a decision that remains out of theordinary and must be used in a manner that is fair to the offender. The power should not be exercised in a mechanical or automatic way.

Specifically, the Court noted that “the sentencing decision must remain alive to the nature and position of delayed parole in criminal law as a special, additional form of punishment. Hence, it should not be ordered without necessity, in a routine way. . .”.[11] [54] The often-cited decision of the Ontario Court of Appeal in R v Goulet (ON CA), [1995], 97 CCC (3d) 61[Goulet] provides some guidance on the analytical process to be undertaken in applying s. 743.6 of the Criminal Code (s. 741.2 as itthen was).

There, the Ontario Court of Appeal stated as follows: The circumstances of the offence will rarely provide much additional assistance under s. 741.2 where those circumstances have formedthe primary basis for fixing the appropriate period of incarceration. If the offence is one of unusual violence, brutality or degradation,then the need to strongly express society's denunciation of the offence may make a s. 741.2 order appropriate. The

section should not beinvoked on the basis of more general concerns which are not specific to the particular offence such as the frequency of the commissionof that type of offence in the community. The distinguishing characteristics of the offender may provide more fruitful grounds for invoking s. 741.2 as an exceptional measure.Where the Crown has adduced clear evidence that the offender will not be deterred or rehabilitated within the normal period of paroleineligibility, an order under s. 741.2 will be appropriate.

A history of prior parole violations, or violations of other forms of conditionalrelease, or evidence that significant prior custodial sentences have had little impact would be appropriate factors to consider in applyings. 741.2. [55] More recently, in R v Gray, 2013 ABCA 237 [Gray], the Alberta Court of Appeal considered the application of s. 743.6 of theCriminal Code and stated as follows: [21] The Supreme Court of Canada has made clear in R. v. Zinck, 2003 SCC 6 , [2003] 1 S.C.R. 41 that the sentencing judge isto fix an appropriate sentence for the crime without consideration of parole eligibility.

After doing so, the sentencing judge will revisitthe sentencing principles and will then determine parole eligibility mindful of the express requirements of s. 743.6(1). See also R. v.Dodd (1999), (NL CA), 139 C.C.C. (3d) 2 (Nfld. C.A.); R. v. Goulet (1995), (ON CA), 97 C.C.C.(3d) 61 (Ont. C.A.); R. v. Matwiy (1996), 1996 ABCA 63 , 105 C.C.C. (3d) 251 (Alta.

C.A.). [22] If the sentencing judge is of the view that society’s denunciation of the offence and the objectives of specific and generaldeterrence are adequately served by a period of parole ineligibility, as set out in the Corrections and Conditional Release Act, S.C. 1992,c. 20, no order pursuant to s. 743.6(1) of the Criminal Code should be made. [23] In R. v. Goulet, the Ontario Court of Appeal held that the following factors are to be considered by a sentencing judge indetermining whether to make an order under s. 743.6(1) (s. 741.2 as it then was): 1.

Does the offence involve any unusual violence, brutality or degradation? 2. Is the offender likely to be deterred or rehabilitated within the normal period of parole ineligibility? 3. Does the offender have a history of prior parole violations or violations of other forms of conditional release? 4. Did significant prior custodial sentences have any impact on the offender?

Should a judge elect to make an order under s. 743.6(1) , he or she should set out in clear and unequivocal language why the parole delay order is being made. [ 56 ] I am cognizant that in determining whether to make an order for delayed parole I must again consider the sentencing principles, the circumstances of the offences and the circumstances and character of this accused.

The factors articulated in Goulet , and adopted in Gray , provide a helpful framework for this analysis. [ 57 ] With respect to the circumstances of the offences, it is entirely clear that a lengthy custodial sentence is both appropriate and necessary to meet the objectives of denunciation and deterrence in this case. The child victims suffered significant degradation. The accused’s collection of pornography included material depicting unusual and significant violence against children.

While he did not physically engage in unusual violence or brutality, he paid for and directed others to sexually assault child victims.

This case appears to me to involve violence and depravity of some lesser degree than was present in the case of Snook , where the New Brunswick Court of Appeal upheld the decision of the sentencing judge not to impose a parole-delaying order, while at the same time emphasizing that the accused engaged in behaviour that needed to be severely denounced. [ 58 ] Turning to the circumstances and character of this accused, apart from the risk assessment contained in the Pre-Sentence Report, there was no evidence presented at the sentencing hearing that Mr.

Chicoine would not be deterred or rehabilitated within the normal period of parole eligibility. As noted in the Pre-Sentence Report, he is assessed as a low risk for general re-offending, and as a moderate to high risk for being charged or convicted of another sexual offence. Mr. Chicoine is relatively young. Very early in the process he entered early guilty pleas and cooperated with the police. He has expressed remorse for his actions, and more importantly, a willingness and desire to receive treatment. He has the benefit of significant family support. Mr.

Chicoine does not have a history of parole violations or violations of other forms of conditional release, nor can it be said that significant prior custodial offences have had no impact on him.

He has no prior criminal record. [ 59 ] Having again reviewed all of the circumstances from the perspective of the requirements of denunciation and deterrence, I am of the view that a sentence of incarceration of 12 years (less remand credit) is a proportionate sentence, and that an order for delayed parole, which would impose an additional form of punishment, is not required in order to satisfy the imperatives of denunciation and deterrence. 3.

What are the appropriate ancillary orders? [ 60 ] The Crown requests an order for forfeiture of all offence related property pursuant to s. 490.1 of the Criminal Code and the defence takes no objection. A Forfeiture Order will issue in the form of the draft order filed by the Crown. [ 61 ] Mr. Chicoine has pled guilty to offences contrary to ss. 163.1 , 171.1 , 172.1 and 172.2 of the Criminal Code , all of which are primary designated offences. I therefore make an order under s. 487.051(1) in Form 5.03 authorizing the taking from Mr.

Chicoine of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis. [ 62 ] A lifetime order pursuant to the Sex Offender Information Registration Act , SC 2004, c 10 [ SOIRA ] is also mandatory. Offences contrary to ss. 163.1 , 171.1 , 172.1 and 172.2 are all designated offences pursuant to s. 490.011 of the Criminal Code . I therefore make an order pursuant to s. 490.012(1) in Form 52 ordering Mr.

Chicoine to comply with the Sex Offender Information Registration Act for life, being the applicable period under s. 490.013(2.1) of the Criminal Code . [ 63 ] The Crown seeks a lifetime prohibition pursuant to s. 161 of the Criminal Code . With respect to the prohibition on using the internet, the Crown proposes an exception only for use of an employer-owned computer when required by the employer. The defence concedes that a s. 161 order is appropriate in the circumstances, but submits that a lifetime prohibition is a disproportionate response.

Defence counsel suggested instead a five year prohibition. [ 64 ] The Supreme Court of Canada recently considered s. 161 orders in R v KRJ , 2016 SCC 31 , [2016] 1 SCR 906 [ KRJ ]. After

confirming that the purpose of s. 161 is to protect children from sexual violence, the Supreme Court of Canada stated as follows: [47] ...Section 161 orders are discretionary and “subject to the conditions or exemptions that the court directs” (s. 161(1)). They cantherefore be carefully tailored to the circumstances of a particular offender. The discretionary and flexible nature of s. 161 demonstratesthat it was designed to empower courts to craft tailored orders to address the nature and degree of risk that a sexual offender poses tochildren once released into the community.

Failure to comply with the order can lead to a term of imprisonment of up to four years (s.161(4)). [48] Further, I agree with the line of cases holding that s. 161 orders can be imposed only when there is an evidentiary basis upon whichto conclude that the particular offender poses a risk to children and the judge is satisfied that the specific terms of the order are areasonable attempt to minimize the risk: see A.(R.K.), at para. 32; see also R v R.R.B., 2013 BCCA 224 , 2013 B.C.C.A. 224, 338 BCAC 106, at paras. 32-34. These orders are not available as a matter of course.

In addition, the content of the ordermust carefully respond to an offender’s specific circumstances. [65] The Supreme Court of Canada noted that s. 161 orders can have a significant impact on the liberty and security of offenders,and that living in the community under restrictions can attract a considerable degree of stigma. Such orders constitute a form ofpunishment.

With respect to s. 161(1)(d), the Supreme Court of Canada commented that depriving an offender of access to the Internet“is tantamount to severing that person from an increasingly indispensable component of everyday life. . .”. [66] The decision of the Supreme Court of Canada in KRJ was considered and applied by the Ontario Court of Appeal in R v Brar,2016 ONCA 724 [Brar]. There, the Court of Appeal emphasized the need to avoid an order under s. 161(1)(

d) that might unduly preventa first time offender from making serious rehabilitative efforts, noting that a broad prohibition on Internet use can be harsh and make abreach almost inevitable. The Court of Appeal noted that “in modern life, at least some form of access to the Internet is simply unavoidable for innocent purposes such as accessing services and finding directions”.[12] The s. 161(1)(

d) order was tailored to prohibitthe accused from accessing any illegal content and from participating in any social network, online forums or chat rooms. [67] The nature, seriousness and extent of Mr. Chicoine’s offending behaviour indicates that a s. 161 order is appropriate, as heposes a risk of future harm to children. I do not have the benefit of any psychological evidence respecting the potential for recidivism. However, the Pre-Sentence Report includes a Risk Assessment which places Mr. Chicoine as a moderate to high risk to re-offendsexually. He has not yet had the benefit of any treatment.

Furthermore, Mr. Chicoine is a relatively young man with no prior criminalrecord, who has expressed remorse, has a supportive family, and is willing to engage in treatment. For the reasons outlined by theOntario Court of Appeal in Brar, it is important to avoid an overly broad order under s. 161(1)(d). Balancing all of these factors, I findthat the appropriate order is a s. 161 prohibition for a period of 10 years following release from custody, prohibiting Mr. Chicoine 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 tobe present, or a daycare centre, school ground, playground or community centre;

b) seeking, obtaining or continuing any employment, whether or not the employment is renumerated, or becoming or being a volunteer inany 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, unless with consent of aparent/guardian who is aware of his convictions and only in the presence of a sober, responsible adult who is aware of his convictions; or

d) using the Internet or other digital network, to: (

i) access any content that violates the law;

(ii) communicate with any person under the age of 16 years; (iii) directly or indirectly access any social media sites, social network, Internet discussion forum or chat room, or maintain a personal profile on any such service . [ 68 ] Finally, there is the matter of victim fine surcharges. The decision in R v Fedele , 2017 ONCA 554 indicates that I do not have discretion to impose concurrent victim surcharges or to waive them. Accordingly, there will be a $200.00 victim fine surcharge imposed for each of the 40 counts to which Mr. Chicoine has pleaded guilty, for a total of $8,000.00.

Given the lengthy period of incarceration that has been imposed, Mr. Chicoine will have until December 31, 2027 to make payment. _________________________ V.L. Monar Enweani, J [1] As noted by Crown counsel, these are minimum and maximum sentences as of July 2015. The two exceptions are: making sexually explicit material available to a child carries a minimum sentence of six months incarceration, and possessing or accessing child pornography carry a maximum sentence of 10 years.

Several of the offences in question here occurred prior to July 2015. [2] R v McLean , 2016 SKCA 93 , para 27 [3] On amended Count 57, Mr. Chicoine pleaded guilty to making child pornography between January 7, 2011 and March 8, 2017. Count 57 originally related to conduct occurring in 2011. However, it was amended to include counts 9, 13, 16 and 19, which related to the time period between 2014-2017 .

There were no facts presented to the Court that revealed any particular offending behavior occurring in 2012 or 2013. [4] Para 2.76 at p 59 [5] This difficulty was noted in R v Mackie, 2013 ABPC 116 , aff ’ d 2014 ABCA 221 . [6] In particular, s. 718.3(7) applies to the following counts involving offences contrary to ss. 171.1(1)(a), 172.1(1)(

a) and 172.1(1)(

b) occurring after June, 2015 and against child victims A.H., J.C., J.T., K., S., and M: Counts 17, 18, 36, 37, 39, 40, 41, 42, 43, 45, 61 and 62. [7] Ruby in Sentencing at para 2.69 on page 54 [8] The variability among sentences for child abuse offences was noted by the Saskatchewan Court of Appeal in McLean , where the Court of Appeal also reviewed sentencing ranges for offences including possessing child pornography, making child pornography and luring, at paras. 59-80. [9] While the sentencing judge said Mr.

Pitts was not in a position of authority, he later said there was an abuse of authority to some extent (as he conspired with the parent of one child victim). However, he also seemed to agree with defence counsel ’ s point that the cases cited by the Crown were not an appropriate comparator because they all involved accused persons in positions of authority over young persons. In the end, he seemed to conclude that the case was unique. [10] Para 31 [11] Para 31 [12] Para 24, Brar, supra