R. v. Carter, 2019 NLCA 39

Matthew Carter (appellant) v. Her Majesty the Queen (respondent) (18/26) Indexed As: R. v. Carter 2019 NLCA 39 4 C.A.N.L.R. 531 Court of Appeal of Newfoundland and Labrador White, O’Brien and Goodridge JJ.A. June 26, 2019 RESTRICTION ON PUBLICATION: A

section 486.4 Criminal Code publication ban is in effect in relation to any information that could identify a complainant.

Summary: The appellant, Matthew Carter, appealed his sentence of eight years imprisonment after he pleaded guilty and was convicted of: one count of distributing child pornography (

section 163.1(3) of the Criminal Code ), one count of making sexually explicit material available to a child (

section 171.1(1) (b)), one count of attempting to make sexually explicit material available to a child (

section 171.1(1) (

b) and 463 ), and two counts of child luring (

section 172.1(1) (b)). He had communicated with four young girls, ages eleven to fourteen, by means of a computer for the purpose of committing sexual offences against them. The trial judge calculated the total of the concurrent and consecutive sentences that he imposed at seven years; however, the actual total was eight years. The appellant argued the judge erred in finding that forethought and deliberation were aggravating factors and erred in making inflationary adjustments to the sentence range, for the hybrid offences, based on increases in the mandatory minimum sentences.

Held: Leave to appeal granted, appeal allowed. Goodridge J.A. (White and O’Brien JJ.A. concurring): An appeal as to sentence requires leave by virtue of section 675(1) (

b) of the Criminal Code . The appeal is not frivolous in the sense of having no arguable basis or sufficient merit, and leave is granted. Sentencing decisions attract a high level of deference. Except where a sentencing judge makes an error of law or principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit. When the applicable case law is considered, the appropriate initial sentences (before totality) should have been below those established by the trial judge.

For three of the six charges, the ultimate sentences imposed (after adjustment for totality) were above the range of those imposed in comparable circumstances. It remains to be determined whether the trial judge’s justification for going above the range contains an error of law or principle. In the context of these charges and under these particular circumstances, the trial judge’s justification for the higher initial sentences was an error in law.

Where forethought and deliberation are typically associated with a particular offence, they cannot be aggravating factors unless there is some exceptional level of forethought and deliberation. Nothing exceptional was present here. Forethought and deliberation are implicit in the offence of child luring. It was an error of law for the trial judge to treat them as aggravating factors. An inflationary increase to an established sentence range can arise from a legislated increase to the statutory minimum sentence. This principle is not without controversy.

An increase in the mandatory minimum and maximum sentence for an offence can be a signal of Parliamentary intent that harsher penalties be imposed, however, the result is not necessarily a lockstep increase. That is to say, a fit sentence under the old framework does not need to be scaled up by the same number of months that the mandatory minimum was increased in order to create a fit sentence under the new framework. Rather, the increase in a mandatory minimum sentence must still be interpreted and applied in a manner consistent with the general principles of sentencing.

The trial judge’s initial sentences (before adjusting for totality) for each offence in the current matter amounted to significant increasesabove the sentences imposed in the past for comparable circumstances. The inflationary increases that the trial judge made to sentencesthat had been imposed in the past cannot be justified based on the increases in mandatory minimum sentences. These adjustmentsconstitute an error of law because they were inconsistent with general principles of sentencing, such as proportionality and parity. As a result of these errors the sentence of eight years was demonstrably unfit.

Thus, it is for this Court to impose a fit sentence. Thecustodial term of five years and three months is not unduly long or harsh. It is proportionate to the gravity of the offences and reflectsMr. Carter’s overall level of culpability. Cases cited: R. v. Hutchings, 2012 NLCA 2, 316 Nfld. & P.E.I.R. 211 R. v. Hillier, 2016 NLCA 21, 377 Nfld. & P.E.I.R. 121 R. v. O’Quinn, 2017 NLCA 10 R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 R. v. Butler, 2019 NLCA 21 R. v. Dominaux, 2017 CarswellNfld 11 (N.L. Prov. Ct.) R. v. Giovannini, 2016 NLTD(G) 160, aff’d 2018 NLCA 19 R. v.

Mills (2015), 364 Nfld. & P.E.I.R. 237 (N.L. Prov. Ct.) rev’d in

part 2017 NLCA 12, rev’d in

part 2019 SCC 22 R. v. M.C. (2016), 378 Nfld. & P.E.I.R. 202 (N.L. Prov. Ct.) R. v. Mermer, 2015 ONSC 2715 R. v. Folino (2005), (ON CA), 77 O.R. (3d) 641, 202 C.C.C. (3d) 353 (Ont. C.A.) R. v. Rafiq, 2015 ONCA 768 R. v. Isaacs (2015), 364 Nfld. & P.E.I.R. 125 (N.L. Prov. Ct.) R. v. Kerr, 2017 NLTD(G) 107 R. v. Barnes, 2018 ONCJ 302 R. v. D.A.R.K., 2018 MBCA 133 R. v. Jarvis (2006), (ON CA), 41 C.R. (6th) 190 (Ont. C.A.) R. v. Clarke, 2017 CarswellNfld 262 R. v. Johnston, 2011 NLCA 56, 311 Nfld. & P.E.I.R. 129 R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90 R. v.

Newman, 2009 NLCA 32, 286 Nfld. & P.E.I.R. 176 R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 10 R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455 R. v. W.E., 2010 NLCA 4 R. v. Solowan, 2008 SCC 62, [2008] 3 S.C.R. 309 R. v. Sharpe, 2001 SCC 2 R. v. Miller, 2017 NLCA 22 R. v. Morrison, 2019 SCC 15

Counsel: Derek Hogan, for the appellant; Sheldon Steeves, for the respondent. This appeal was heard on January 17, 2019 before White, O’Brien and Goodridge JJ.A. The following judgment was filed on June 26, 2019 by Goodridge J.A. for the Court. ______________________________________________________________ Goodridge J.A.: OVERVIEW [ 1 ] Matthew Carter, currently 35 years of age, pleaded guilty and was convicted of the following charges: one count of distributing child pornography (

section 163.1(3) of the Criminal Code ), one count of making sexually explicit material available to a child (

section 171.1(1) (b)), one count of attempting to make sexually explicit material available to a child (

section 171.1(1) (

b) and 463 ), and two counts of child luring (

section 172.1(1) (b)). He appeals the sentence imposed for these crimes. The trial judge calculated the total of the concurrent and consecutive sentences that he imposed at seven years; however, and as addressed below in paragraph 15, the actual total was eight years. [ 2 ] Mr. Carter submits that the trial judge made errors in applying the sentencing principles, and that these errors had an impact on the sentence.

In particular, he argues that the judge erred in finding that forethought and deliberation were aggravating factors and erred in making inflationary adjustments to the sentence range, for the hybrid offences, based on increases in the mandatory minimum sentences. [ 3 ] Mr. Carter asks this Court to allow the appeal and reduce his sentence. [ 4 ] For the reasons outlined below, I would allow the appeal and impose a sentence of five years, three months. BACKGROUND [ 5 ] The trial judge gave a succinct overview of the facts at paragraph 3 of his written reasons: In this case, Mr.

Carter, who is 34 years of age, communicated with four young girls, ages eleven to fourteen, by means of a computer for the purpose of committing sexual offences against them. The victims reside in the United Kingdom. Mr. Carter participated in on-line chats of a sexual nature and exchanged sexually explicit images with them. In one case, the images were intercepted by the child’s parents.

One of the children was described as a special needs child. [ 6 ] The four young victims, all girls, will be referred to as A, B, C, and D, in order to conceal their identities. [ 7 ] Child A was 12 years old, and was a victim of child luring. The crime involved two text messages. Mr. Carter initially contacted A by Instagram messaging on August 18, 2016. She replied, “Don’t text me”, but Mr.

Carter ignored this reply, and over the course of the following four days sent the two lurid text messages that ground the charge. [ 8 ] Child B was 11 years old, and was the victim of attempting to make sexually explicit material available to a child. Mr. Carter contacted B using the Snapchat messaging app on his iPhone on January 20, 2016. Snapchat messages, images and videos disappear once viewed by the recipient. B told her parents that she had received an unsolicited message from a 32-year-old man. That prompted the parents to take control of B’s electronic device and monitor further incoming messages.

The parents received a message on that device -- “Does my dick look nice” -- and it included a photographic image of Mr. Carter’s erect penis and a live video of Mr. Carter’s erect penis. This single Snapchat message, with the penis photograph and the live video, grounds the charge. [ 9 ] Child C was 11 years old, and was the victim of child luring and making sexually explicit material available to a child. Using Snapchat, Mr. Carter engaged in an online chat with C, over a four-day period in February, 2016. One message exchanged over those four days grounds both charges. In that message, Mr.

Carter attached an image of his penis. [ 10 ] Child D was 14 years old and had cognitive developmental delay. She was the victim of making sexually explicit material available to a child, and distributing child pornography. Over a period of 26 days, from October 31, 2016 to November 25, 2016, Mr. Carter engaged in kik-chats (type of instant messaging app) with D. On three occasions during that period, sexually explicit images or videos were exchanged. In one message, Mr. Carter asked D to send him a video of her “licking and sucking your tits … sucking your nipples”. In a second message Mr.

Carter asked D to “help daddy squirt white … all over your nice tits and maybe in your mouth.” In a third message Mr. Carter indicated that he liked girls between 10 and 13 and asked D to send him images of female children in sexual situations. D obliged Mr. Carter’s request, and sent him 11 videos and 37 images of herself. In one of the videos, D is sucking on her breasts and rubbing her vagina. Mr. Carter retransmitted nine of these eleven videos to a third party.

The result of this retransmission is that the videos of D are, potentially, circulating on the worldwide web. [ 11 ] The trial judge found that, based on these facts and circumstances, “the gravity of the offences was at the highest level as is Mr. Carter’s moral culpability” (paragraph 116 of trial judge’s reasons); that the offences took place “over a considerable period of time” (paragraph 121); and that forethought and deliberation “significantly increased Mr. Carter’s moral culpability” (paragraph 123). At

paragraph 114 of his reasons, the trial judge set out various principles that apply when sentencing for offences that involve the distribution of child pornography, including that a legislated increase in the minimum sentence has a proportionate inflationary effect on the balance of the sentencing range. [ 12 ] At the sentencing hearing, Crown counsel recommended a total sentence of four to five years; defence counsel, noting that Mr. Carter had no related criminal record, recommended a sentence of three years.

The trial judge rejected both recommendations and, after inviting and receiving further submissions, imposed a sentence of eight years. I note in passing that a three-year sentence, as suggested by defence counsel, was not an option for the trial judge. The combined effect of the statutory minimum sentences prescribed under the Criminal Code , and the requirement (under

section 718.3(7) ) that certain sentences be consecutive, results in three and a half years as the lowest available sentence option. [ 13 ] The trial judge, consistent with the sentencing process set out in R. v. Hutchings , 2012 NLCA 2 , 316 Nfld. & P.E.I.R. 211 , initially identified an appropriate sentence for each offence and arrived at a total sentence of 14 years. He then allowed concurrency of the two offences committed against C because they involved the same victim and were closely related. The result was a consecutive sentence of 12 years calculated as follows: 1. Child luring of A contrary to

section 172.1 of the Criminal Code , two years; 2. Attempting to make sexually explicit material available to B contrary to

section 171.1 and 463, two years consecutive; 3. Child luring of C , contrary to

section 172.1 , two years consecutive; 4. Making sexually explicit material available to C contrary to

section 171.1, two years concurrent with count 3 above; 5. Distributing child pornography in relation to D, contrary to

section 163.1(3) , three years consecutive; and 6. Making sexually explicit material available to D , contrary to

section 171.1, three years consecutive. [ 14 ] The trial judge continued with the remaining steps outlined in Hutchings and considered whether the 12-year sentence was unduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility of the offender. He found that the sentence was unduly long; he considered various factors (see paragraph 84 of Hutchings ) and made adjustments as part of his totality analysis resulting in the following sentence: 1. Child luring of A -- one year; 2.

Attempting to make sexually explicit material available to B -- one-year; 3. Child luring of C -- one year; 4. Making sexually explicit material available to C -- two years (concurrent with 3); 5. Distributing child pornography of D -- two years; and 6. Making sexually explicit material available to D -- two years. [ 15 ] Pursuant to

section 718.3(7) (

b) of the Criminal Code , periods of imprisonment imposed for sexual offences against more than one child must be ordered to be served on a consecutive basis. Accordingly, the concurrent sentence imposed for count 4 (with C as victim) can only run concurrent with the other offence involving C (count 3). The result is that the actual sentence total is eight years, and not the seven years stated by the trial judge in his reasons. ISSUES [ 16 ] The appeal engages the following issues: 1. Should leave to appeal against sentence be granted? 2. What is the standard of appellate review? 3.

Did the sentencing judge err in the application of the parity principle when establishing the initial sentence for each offence? 4. Did the sentencing judge err in treating forethought and deliberation as aggravating factors? 5. Did the sentencing judge err in making “inflationary” adjustments to the individual sentences based on legislated changes to the minimum sentences? 6. Is the eight-year sentence imposed demonstrably unfit? 7. What is a fit sentence? LEAVE TO APPEAL [ 17 ] An appeal as to sentence requires leave by virtue of section 675(1) (

b) of the Criminal Code . The test to be applied 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 , and R. v. O’Quinn , 2017 NLCA 10 at paragraph 9 ). I am satisfied that this test is met and that leave should be granted.

STANDARD OF REVIEW [ 18 ] Sentencing is an individualized process; one in which a sentence is tailored to reflect the gravity of the offence and the particular circumstances of the offender. For this reason, sentencing decisions attract a high level of deference. Except where a sentencing judge makes an error of law or principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit ( R. v. Lacasse , 2015 SCC 64 , [2015] 3 S.C.R. 1089 at paragraphs 11 and 44 ).

The assessment of whether a sentence is demonstrably unfit must focus on the fundamental principle of proportionality. This principle requires that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender (

section 718.1 of the Criminal Code ). A sentence will only be demonstrably unfit if it constitutes an unreasonable departure from this principle ( Lacasse , at paragraph 53 ). [ 19 ] Hoegg J.A. recently commented on the standard of review in R. v. Butler , 2019 NLCA 21 at paragraph 38 : … Errors of law in the course of imposing sentence can justify interference by an appellate court if the error had an impact on the sentence imposed, and the fitness of a sentence under appeal is always a potential issue, regardless of whether the sentencing judge made an error of law or principle ( Lacasse at paragraph 11 ). parity principle [ 20 ] The parity principle, set out in

section 718.2 (

b) of the Criminal Code , says that a sentence should be "similar to sentences imposed on similar offenders for similar offences committed in similar circumstances". [ 21 ] Mr. Carter argued that the initial sentences established by the trial judge for each of his offences were well above the normal range of sentences imposed on similar offenders for similar offences committed in similar circumstances. He said that the these initial sentences are not supportable by any authority or precedent and offend the parity principle. [ 22 ] Mr.

Carter conceded that, based on paragraphs 51 and 60 of Lacasse , a “deviation from a sentencing range is not synonymous with an error of law or an error in principle” (paragraph 60). As such, violation of the parity principle will rarely constitute an error of law or principle. [ 23 ] However, Mr. Carter submitted that the trial judge’s stated rationale for deviating from the established range – namely his reliance on the aggravating effect of planning and deliberation and the “inflationary” impact of mandatory minimum sentences – are reviewable errors.

He further submits that the individual sentences are, in any event, demonstrably unfit. [ 24 ] In a case such as this, where the alleged error was improper reasoning and justification to exceed the sentencing range, an initial consideration of the sentencing range is necessary to provide context to the analysis. [ 25 ] The several authorities reviewed by the trial judge to guide his initial determination on appropriate sentence range for each offence mostly involved circumstances more serious, with sentences of lesser duration than the ones he gave.

If the circumstances in the authorities reviewed are more serious compared to Mr. Carter’s circumstances, then the adjustment to achieve parity should have been downward. The trial judge’s initial sentences (before totality) reflect the opposite, with an upward adjustment. [ 26 ] I will not compare all of the sentencing precedents mentioned by the trial judge, or summarize the detailed circumstances of each.

The brief summaries of sample cases below, chosen primarily from cases relied upon by the trial judge, illustrate that the initial sentences were above those imposed in comparable circumstances. [ 27 ] In R. v. Dominaux , 2017 CarswellNfld 11 (N.L. Prov. Ct.) a 26-year-old male pleaded guilty to child luring of a fourteen year old girl. The Crown proceeded summarily; however, the facts were more compelling by comparison to Mr. Carter’s circumstances. There were more than seven thousand contacts, exchanged over a lengthy period, to ground the luring charges. This compares to Mr.

Carter’s two contacts with A over a four-day period, and the single contact with C. Many of the exchanges in Dominaux included sexually explicit messages, and one included an image of the offender’s penis. The sentence imposed was eleven months. [ 28 ] In R. v. Giovannini , 2016 NLTD(G) 160 (conviction upheld on appeal at 2018 NLCA 19 ), a 34-year-old male was convicted, after trial, of various offences including child luring of a 14-year-old girl. The Crown proceeded by indictment.

The luring, using a smart phone, was of short duration; it was directed toward grooming for sexual contact; there was sexual intercourse that followed from the child luring. The sentence imposed for the child luring was twelve months. [ 29 ] In R. v. Mills (2015), 364 Nfld. & P.E.I.R. 237 (N.L. Prov. Ct.) rev’d in

part 2017 NLCA 12 , rev’d in

part 2019 SCC 22 , a 34- year-old male was convicted, after trial, of child luring of a 14-year-old girl. The Crown proceeded summarily. A police officer, in a sting operation, was playing the role of the child. There were 186 contacts, exchanged over a lengthy period, to ground the luring charges. Many of the exchanges included sexually explicit messages, and one included an image of the offender’s penis. The sentence imposed was twelve months. The trial judge would have imposed fourteen months but reduced it to twelve because of a Charter violation.

The finding of a Charter breach and corresponding reduction in sentence were subsequently reversed by this Court and a majority of the Supreme Court of Canada. [ 30 ] In R. v. M.C. (2016), 378 Nfld. & P.E.I.R. 202 (N.L. Prov. Ct.) , a 39-year-old male pleaded guilty to child luring of a 14-year-old girl. The Crown proceeded summarily. There were multiple contacts grounding the luring charge, exchanged over a lengthy period; the contacts were directed toward grooming for sexual activity. The sentence imposed was nine months. The circumstances were more serious in comparison to Mr.

Carter’s single contact with A. [ 31 ] In R. v. Mermer , 2015 ONSC 2715 , a 35-year-old male was convicted, after trial, of child luring of a 14-year-old girl. The Crown proceeded summarily. A police officer, in a sting operation, was playing the role of the child. There were numerous contacts, exchanged over 66-days, to ground the charge; the luring was directed toward grooming for sexual contact. Many of the exchanges involved sexually explicit messages inquiring whether the fictional victim was a virgin, the size of her breasts and whether she had ever engaged in oral sex.

The sentence imposed was twelve months but this was reduced on appeal to eight months.

[32] In R. v. Folino (2005), (ON CA), 77 O.R. (3d) 641, 202 C.C.C. (3d) 353 (Ont. C.A.), a 34-year-old malepleaded guilty to child luring of a 13-year-old girl. The Crown proceeded by indictment. A police officer, in a sting operation, wasplaying the role of the child. There was fourteen contacts; the contacts involved sexually explicit messages; one message included animage of the offender’s penis; the luring was directed toward grooming for sexual contact.

The trial judge imposed a custodial sentenceof nine months, but this was revised on appeal to “house arrest” for a longer term (eighteen months). [33] In R. v. Rafiq, 2015 ONCA 768, a 24-year-old male pleaded guilty to child luring of a 12-year-old girl. The Crown proceeded byindictment. The contacts were frequent and continued over a six-month period; the luring included transmission of photos of theoffender’s erect penis and requests for nude photographs. During online chats, the offender would masturbate and request that the childvictim do the same.

In response to the offender’s request, the child victim sent 38 nude photographs of herself including various close-ups of her vagina. The Crown did not pursue a charge of distributing child pornography but it was agreed that this was an aggravatingfactor. The trial judge imposed a sentence of “house arrest” for two years less a day. On appeal, the sentence was converted to acustodial term of two years less a day.

Strathy C.J., for the Court, found that “the sentencing judge failed to take into account that, in thecourse of committing the offence of child luring, the respondent repeatedly and successfully urged the victim to make and distributechild pornography ...” (at paragraph 30). [34] In R. v. Isaacs (2015), 364 Nfld. & P.E.I.R. 125 (N.L. Prov. Ct.), a 53-year-old male pleaded guilty to distributing childpornography. In the agreed statement of facts the offender admitted to having 208 child pornography files (containing both still imagesand movies) available for download.

The sentence imposed was eighteen months. [35] In R. v. Kerr, 2017 NLTD(G) 107, a 36-year-old male pleaded guilty to (among other offences) two separate charges ofdistributing child pornography. The Crown proceeded by indictment. For the first charge, there were 147 images and 54 videosinvolving child pornography available for distribution. For the second charge, arising after the offender had been released on arecognizance in respect of the first charge, there were 11 images and 1 video involving child pornography available for distribution.

Thesentence imposed for the first charge was eighteen months and for the second charge twelve months. [36] In R. v. Barnes, 2018 ONCJ 302, a 56-year old man pleaded guilty to making sexually explicit material available to child. Apolice officer, in a sting operation, was playing the role of two girls, ages 14 and 15. Over a two-week period, the offender repeatedlysent sexually explicit images (including some photos of his erect penis) and engaged in sexual communications. During these onlineexchanges, it was clear that the offender was grooming the fictional victims for a sexual encounter.

The child luring aspect of thecriminal activity was treated as an aggravating circumstance by agreement. There was no separate conviction for child luring even thoughthe offender also admitted that his activities included that crime. For making sexually explicit material available to a child, the judgeimposed a sentence of twelve months. [37] In R. v. D.A.R.K., 2018 MBCA 133, a 35-year-old male was convicted after trial of several sex related offences involvingchildren, including two counts (two children) of making sexually explicit material available to a child.

One of the children was age sevenand the other age eleven. Over a period of eight months, the offender showed sex movies and pornography to these two children underthe guise of teaching them about sex. He watched these sex movies with the children naked from the waist down, and masturbated duringthe movies. He threatened the children not to tell anyone.

Burnett J.A., for the Court, stated that the appropriate sentence formaking sexually explicit material available to a child would be twelve months for each count, but imposed a sentence of six monthson each count to adjust for totality considerations arising from the several other sex related offences. [38] Using these sample cases as authorities, the appropriate initial sentences (before totality) should have been below thoseestablished by the trial judge. None of the cases support the two-year prison terms initially imposed for the

section 171.1 offences(attempting or making sexually explicit material available to a child) or the

section 172.1 offences (child luring). Nor do the cases citedsupport the three-year initial prison term that the trial judge imposed for the offence involving D – sending her images of a penis and amasturbation video. The offence of distributing child pornography in relation to D was the most serious offence before the trial judge.

However, none of the authorities referenced by the trial judge support the initial three-year consecutive sentence that he established forthat offence. [39] For three of the six charges, the ultimate sentences imposed (after adjustment for totality) were above the range of those imposedin comparable circumstances. It remains to be determined whether the trial judge’s justification for going above the range contains anerror of law or principle. [40] The higher initial sentences were justified by the trial judge, in part, on that the basis that forethought and deliberation“significantly increased” Mr.

Carter’s moral culpability, and in part because of a higher inflationary floor. The inflationary floor refers tothe minimum sentence imposed by statute, and that increases where the Crown elects (as it did here for the sections 171.1 and 172.1charges) to proceed by indictment. [41] For the reasons that follow, I am satisfied that, in the context of these charges and under these particular circumstances, the trialjudge’s justification for the higher initial sentences was an error in law.

The error in calculating the initial sentences for each offenceaffected the ultimate sentence imposed for three of the six charges. As such, the sentence must be set aside and reconsidered based onproper principles. FORETHOUGHT AND DELIBERATION [42] Where forethought and deliberation are typically associated with a particular offence, they cannot be aggravating factors unlessthere is some exceptional level of forethought and deliberation. Nothing exceptional was present here.

Child luring, exposing children topornography and distributing child pornography will almost always involve an element of forethought and deliberation. These are notspontaneous crimes of opportunity. [43] In R. v. Jarvis (2006), (ON CA), 41 C.R. (6th) 190 (Ont. C.A.) at paragraph 27 Rosenberg J.A. recognizedthat forethought and deliberation are implicit in the offence of child luring. The trial judge in this particular matter also recognized thatreality in one of his earlier sentencing decisions, R. v. Clarke, 2017 CarswellNfld 262, at paragraph 1:

[The] offence [of child luring], like all those committed by offenders who use the internet to have sexual contact with children, involves planning and premeditation. [ 44 ] Forethought and deliberation were not aggravating factors in these circumstances, as they were implicit in the crimes. It was an error of law for the trial judge to treat them as aggravating factors that “significantly increased Mr. Carter’s moral culpability”. As stated by White J.A. in R. v.

Johnston , 2011 NLCA 56 , 311 Nfld. & P.E.I.R. 129 (at paragraph 19 ): Since the nature of the offence itself is patently the same in every case, the nature, in and of itself, cannot be said to be aggravating. If it were, the nature of the offence would be aggravating in every case. It is not… [ 45 ] In Lacasse , Wagner, J. (as he then was) stated at paragraph 44 that the erroneous consideration of an aggravating factor will justify appellate intervention if it appears from the trial judge’s decision that such an error had an impact on the sentence.

In this case, as previously stated, the trial judge’s erroneous consideration of forethought and deliberation as aggravating factors were relied on to justify the departure from the established range of sentence. The error did have an impact on sentence, for three of the six charges. INFLATIONARY FLOOR [ 46 ] In a few of the authorities relied upon by the trial judge, the Crown had elected to proceed by

summary conviction, with lower minimum and maximum sentences in comparison to proceeding by indictment. In addition, some of the authorities relied upon pre-dated amendments to the Criminal Code which increased the statutory minimum sentences for crimes against children. [ 47 ] For child luring (

section 172.1 ), when prosecuted by indictment, the minimum sentence of one year was established in 2012; for making sexually explicit material available to a child (section 171.1), when prosecuted by indictment, the minimum sentence of 90 days was increased to six months in 2015; for distributing child pornography (

section 163.1(3) ), the minimum sentence of one year was established in 2005. There is no minimum sentence for attempting to make sexually explicit material available to a child (section 463). [ 48 ] An inflationary increase to an established sentence range can arise from a legislated increase to the statutory minimum sentence. While this principle is not without controversy (see the comments by now Ontario Court of Appeal Justice David Paciocco in “The Law of Minimum Sentences: Judicial Responses and Responsibility” (2015) 19 Can. Crim. L.

Rev. 173), it has been favourably referred to by the Supreme Court of Canada (see the concurring reasons of Arbour J. in R. v. Morrisey , 2000 SCC 39 , [2000] 2 S.C.R. 90 , at paragraph 75 , and the obiter dicta comments of Wagner J. (as he then was) in Lacasse at paragraph 7 ), as well as this Court ( R. v. Newman , 2009 NLCA 32 , 286 Nfld. & P.E.I.R. 176 , at paragraphs 54–57 ). [ 49 ] In addition, the sentence range for hybrid offences will vary based on the different minimum and maximum sentences, depending on whether the Crown proceeds summarily or by indictment.

In this matter, for the hybrid offences – child luring and making sexually explicit material available to a child – the Crown elected to proceed by indictment and that engaged the minimum sentences outlined in paragraph 47 above. [ 50 ] An increase in the mandatory minimum and maximum sentence for an offence can be a signal of Parliamentary intent that harsher penalties be imposed, however, the result is not necessarily a lockstep increase.

That is to say, a fit sentence under the old framework does not need to be “scaled up” by the same number of months that the mandatory minimum was increased in order to create a fit sentence under the new framework. [ 51 ] Rather, the increase in a mandatory minimum sentence must still be interpreted and applied in a manner consistent with the general principles of sentencing expressed in sections 718 , 718.1 and 718.2 of the Criminal Code . The principle of proportionality and the expectation, expressed in

section 718.2 (b), that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances, still apply, albeit with recognition of the fact that under a mandatory minimum, even the “best” offender will still be subject to the minimum (see paragraph 75 of R. v. Morrisey , 2000 SCC 39 , [2000] 2 S.C.R. 10 .) [ 52 ] In R. v.

Wust , 2000 SCC 18 , [2000] 1 S.C.R. 455 at paragraph 22 , Arbour J., for the Court, discussed the need to apply legislated minimum sentences in a manner consistent with the general principles of sentencing: [I]t is important to interpret legislation which deals, directly and indirectly, with mandatory minimum sentences, in a manner that is consistent with general principles of sentencing, and that does not offend the integrity of the criminal justice system. … [S]uch an approach reflects the intention of Parliament that all sentences be administered consistently, except to the limited extent required to give effect to a mandatory minimum. [ 53 ] The trial judge’s initial sentences (before adjusting for totality) for each offence in the current matter amounted to significant increases above the sentences imposed in the past for comparable circumstances.

The inflationary increases that the trial judge made to sentences that had been imposed in the past cannot be justified based on the increases in mandatory minimum sentences. In R. v.

W.E. , 2010 NLCA 4 at paragraph 14 , Rowe J.A. cautioned against making automatic inflationary increases to the historical sentence range based on an increase in the mandatory minimum sentence: The sentencing judge reads too much into the 45 day minimum when he states that this "must reflect Parliament's clear indication that the sentences imposed for such offences have not been sufficient and must be increased", if by this he means that Parliament through the 45 day minimum has mandated a radical shift, fundamentally altering and greatly increasing all sentences for possession of child pornography. [ 54 ] The inflationary increases that the trial judge made in his initial sentences, to account for changes to the mandatory minimum sentences, and to account for the Crown election to proceed by indictment, were excessive.

The adjustments constitute an error of law because they were in consistent with general principles of sentencing, such as proportionality and parity. [ 55 ] When considering the appropriate sentence for a hybrid offence, where the Crown proceeds by indictment, it is acceptable to rely on

summary proceeding authorities without making any upward adjustment, if the facts and circumstances are similar. The authorities

from the

summary proceedings are equally applicable as guides if the facts and circumstances are comparable, subject of course to any mandatory minimum sentence imposed by Parliament for that mode of procedure. In R. v. Solowan , 2008 SCC 62 , [2008] 3 S.C.R. 309 , Fish J., for the Court, stated at paragraph 15 that there should not be an upward adjustment from the sentence that the offender might have received if prosecuted summarily: A fit sentence for a hybrid offence is neither a function nor a fraction of the sentence that might have been imposed had the Crown elected to proceed otherwise than it did.

More particularly, the sentence for a hybrid offence prosecuted summarily should not be “scaled down” from the maximum on

summary conviction simply because the defendant would likely have received less than the maximum had he or she been prosecuted by indictment. Likewise, upon indictment, the sentence should not be “scaled up” from the sentence that the accused might well have received if prosecuted by

summary conviction. [ 56 ] As a result of these errors the sentence of eight years was demonstrably unfit. Thus, it is for this Court to impose a fit sentence. FIT SENTENCE Child Luring [ 57 ] I agree with the trial judge that the offence of child luring must be dealt with seriously by the courts; and I agree that children, as vulnerable members of our society, must be safeguarded against predators who abuse the Internet to lure children into situations where they can be sexually exploited. The important societal interest in protecting children from the evils associated with sexual predators is discussed in R. v.

Sharpe , 2001 SCC 2 and R. v. Miller , 2017 NLCA 22 . [ 58 ] I also agree that the one-year consecutive sentences that the trial judge ultimately established for each child luring charge, are fit sentences in these circumstances. [ 59 ] In most cases proceeding by indictment, the appropriate range for child luring will be from 12 to 24 months ( R. v. Morrison , 2019 SCC 15 at paragraph 177 , Karakatsanis J., concurring). The child luring of A was based on two text messages sent over a four-day period. The child luring of C was based on a single text message with the penis image. Mr.

Carter had no prior related criminal record; he cooperated with police; and he pleaded guilty.

As Karakatsanis J., noted in Morrison at paragraph 179 (writing separate reasons, but agreeing with the outcome) “ the offence [of child luring] casts a wide net, this increases the likelihood of it catching individuals whose conduct will not warrant punishment remotely close to that required by the mandatory minimum sentence [of one year]”. [ 60 ] The one-year mandatory minimum sentence as imposed by the trial judge for each child-luring charge, is the fit and proportionate sentence mandated by the sentencing principles, for Mr. Carter, in these current circumstances.

Attempting to Make Sexually Explicit Material Available to a Child [ 61 ] There is no mandatory minimum sentence for attempting to make sexually explicit material available to a child. This was the offence Mr. Carter committed in respect of B. He sent the single Snapchat message – “Does my dick look nice” -- and included a photographic image and live video of his penis. The recipients were the parents of B. The two sentencing authorities referenced above ( Barnes and D.A.R.K. ) for the primary offence, as distinct from the attempted offence, involved circumstances that are far more serious.

The criminal behavior in these prior cases included multiple transmissions of sexual material over an extended period and resulted in sentences of 12 months each. Mr. Carter’s fit and proportionate sentence, because his circumstances involved a single transmission, and because it was an attempt, should be less to maintain parity. A six-month sentence is appropriate.

Making Sexually Explicit Material Available to a Child [ 62 ] The mandatory minimum sentence for making sexually explicit material available to a child is six months. [ 63 ] In respect of C, the offence of making sexually explicit material available to a child was based on the same lurid text message/photo that grounded the offence of child luring. In comparison to the offence against B, the attempt is less serious compared to the commission of a crime. An eight-month sentence is appropriate.

For the same reasons as stated by the trial judge, namely that the factual foundation for each charge was closely related and that the victim was the same for each charge, this sentence shall be served concurrently with the child luring sentence. [ 64 ] In respect of D, the offence of making sexually explicit material available to a child was based on three messages over a 26-day period that included sexually explicit videos or images. In Barnes and D.A.R.K. , where 12-month sentences were imposed, the circumstances were more serious. A nine-month sentence is appropriate for Mr. Carter.

Distributing Child Pornography [ 65 ] This is the most egregious among Mr. Carter’s offences. The victim was a child with a cognitive developmental delay; Mr. Carter created the child pornography videos by enticing her to expose her body and perform sexually online; nine videos were retransmitted on the Internet and cannot be retrieved. The cognitive delay and the creation of the videos are aggravating factors that were not present in either Kerr or Isaacs , where sentences of twelve and eighteen months were imposed.

In the present circumstances, the two year sentence imposed by the trial judge is the fit and proportionate sentence mandated by the sentencing principles. TOTALITY [ 66 ] The combined sentence is five years and three months: 1. Child luring of A -- one year;

2. Attempting to make sexually explicit material available to B -- six months (consecutive); 3. Child luring of C -- one year (consecutive); 4. Making sexually explicit material available to C -- eight months (concurrent with 3); 5. Distributing child pornography in relation to D -- 2 years (consecutive); and 6.

Making sexually explicit material available to D -- nine months (consecutive). [ 67 ] When sentencing for multiple offences, Hutchings (at para. 84 ) directs that there be one last look at the combined sentence to determine whether it is unduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility of the offender. Factors to consider in taking this ‘one last look’ include: (

a) the length of the combined sentence in relation to the normal level of sentence for the most serious of the individual offences involved; (

b) the number and gravity of the offences involved; (

c) the offender's criminal record; (

d) the impact of the combined sentence on the offender's prospects for rehabilitation, in the sense that it may be harsh or crushing; (

e) such other factors as may be appropriate to consider to ensure that the combined sentence is proportionate to the gravity of the offences and the offender's degree of responsibility. [ 68 ] In the context of these factors the custodial term of five years and three months is not unduly long or harsh. It is proportionate to the gravity of the offences and reflects Mr. Carter’s overall level of culpability. No further reduction for totality is warranted. DISPOSITION [ 69 ] I would grant leave to appeal the sentence and allow the appeal. I would vary the sentence by ordering Mr.

Carter to serve a total of five years and three months imprisonment less credit for pre-trial custody, which was determined by the trial judge to be 434 days. I would affirm the trial judge's ancillary orders -- victim surcharges, DNA order,

section 161 order, sex offender registration, non- communication order vis-à-vis the victims, and

section 164.2 forfeiture order. Leave to appeal granted, appeal allowed.