R v Kalliraq, 2022 NUCA 6

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v Kalliraq, 2022 NUCA 6 Date: 20221027 Docket: 07-22-003-CAP Registry: Iqaluit Between: His Majesty the King Respondent - and - Sheldon Kalliraq Appellant Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that may identify the complainant or witnesses must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the identification ban. _______________________________________________________ The Court: The Honourable Justice Frederica Schutz The Honourable Justice Edith Campbell The Honourable Justice Dawn Pentelechuk _______________________________________________________ Memorandum of Judgment Appeal from the Sentence of The Honourable Justice S. Charlesworth

Dated the 15th day of December, 2021 ( Docket:07-21-26) ______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: I. Introduction [ 1 ] This sentence appeal engages the interplay of s 718.3(7) of the Criminal Code , which in certain circumstances provides for cumulative punishments for sexual offences against children, and the principle of totality under s 718.2(

c) of the Criminal Code when the underlying sexual offences attract mandatory minimum sentences. [ 2 ] Mr Kalliraq pleaded guilty to one count of possession of child pornography (s 163.1(4) of the Criminal Code ) and one count of child luring (s 172.1(1)(

a) of the Criminal Code ). Both offences carry mandatory minimum sentences of one year imprisonment where, as here, the Crown proceeds by indictment. [ 3 ] At the sentencing hearing, the Crown sought the mandatory minimum sentence of one year for each offence.

Notably, defence counsel did not challenge the constitutionality of the mandatory minimum sentence for either offence. [1] The Crown argued that s 718.3(7) mandated that the sentences be served consecutively, resulting in a global sentence of two years’ imprisonment. [ 4 ] Defence counsel sought a global sentence of 12 months’ imprisonment followed by probation. While she agreed that the mandatory minimum sentences applied, defence counsel argued that possession of child pornography and child luring were intertwined and amounted to the same criminal act.

It was therefore appropriate to have the sentences run concurrently. [ 5 ] The sentencing judge declined to impose concurrent sentences, finding that the offences did not amount to the same delict. She concluded that the enactment of s 718.3(7) signaled Parliament’s intention that sentences imposed for different sexual offences involving children must be served consecutively.

Accordingly, she sentenced Mr Kalliraq to a two-year sentence less three days for time served, to be served in a territorial facility. [ 6 ] Mr Kalliraq appeals his sentence, arguing that s 718.3(7) does not displace the principle of totality codified in s 718.2(

c) of the Criminal Code , and it was open to the sentencing judge to impose a global sentence of less than two years. Alternatively, he seeks permission to argue that s 718.3(7) is unconstitutional as it offends s 12 of the Charter , which protects against cruel and unusual punishment. [ 7 ] For the reasons that follow, we conclude appellate intervention is not warranted and decline to consider Mr Kalliraq’s constitutional argument, raised for the first time on appeal. II.

Background [ 8 ] An RCMP investigation determined that three pieces of child pornography had been uploaded to Facebook and transmitted by Mr Kalliraq (two images and one video). The explicit images had been sent by Mr Kalliraq through Facebook Messenger to the first complainant, then 11 years of age. [ 9 ] Following the execution of a search warrant on Mr Kalliraq’s residence, nine images of child pornography were extracted from his phone; some of these were of the second complainant, including a picture of her with her breast exposed.

She was 12 years of age when she sent this photo to Mr Kalliraq. [ 10 ] In her sentencing submissions, defence counsel noted “that by my count there were twelve separate pieces of material that met the definition of child pornography in this case. I believe only one of them is a video. The others are still images”. She conceded that it was aggravating that the images were shared in the context of child luring. She noted that the images were not provided to the court but that she had seen them and “[t]hey are certainly disturbing, but they are not horrific”. III.

Analysis [ 11 ] The principle of totality is codified in s 718.2(c), which provides that “where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh”. Consideration of this principle requires a judge who imposes consecutive sentences on an offender to ensure the total sentence is just and appropriate and does not exceed the offender’s overall culpability: R v

Friesen , 2020 SCC 9 at para 157 . The pivotal issue on this appeal is whether the totality principle can override s 718.3(7)(

a) to further reduce a sentence in the case of two child sexual offences (one of which being an offence under s 163.1, thus triggering the provision) where the proposed sentence on each is the prescribed mandatory minimum. We conclude it does not. [ 12 ] In R v SC , 2019 ONCA 199 [ SC ], leave to appeal to SCC refused, 38625 (10 October 2019), the Ontario Court of Appeal considered the effect of s 718.3(7) in the context of various child sex offences: eight counts of sexual assault, eight counts of making child pornography and one count of possession of child pornography.

The offences straddled the date on which s 718.3(7) came into force on July 17, 2015, applying to four counts of sexual assault and four counts of making child pornography against four victims.

Each of these offences carried a minimum one-year sentence, resulting in an eight-year total of mandatory minimum sentences to which s 718.3(7) applied. (Section 718.3(7) was also said to apply to the one count of possession of child pornography, however the mandatory minimum sentence for that offence had previously been struck down by the court in R v John , 2018 ONCA 702 ). [ 13 ] The Crown appealed the global nine-year sentence imposed. In dismissing the appeal, the court concluded that s 718.3(7) is subject to the totality principle in s 718.2(

c) and that the two sections must be read together, stating at para 17 that the Criminal Code “does not mandate a purely mechanical approach whereby all sentences governed by s. 718.3(7) must be simply added up and imposed”. Therefore, a sentencing judge who directs consecutive sentences for multiple offences must ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender and is not unduly long or harsh. [ 14 ] SC is not however support for the proposition that the totality principle qualifies the application of s 718.3(7) where mandatory minimum sentences apply.

To the contrary, the court stated at para 18: As I have noted, the mandatory minimum sentences applicable in this case by virtue of s. 718.3(7) total eight years.

It was open to the trial judge to take into account the totality principle as a qualification on s. 718.3(7) when imposing the sentences for the other offences for which the mandatory minimums did not apply . [Emphasis added] [ 15 ] The sentence appeal in R v Clarke , 2021 NLCA 8 [ Clarke ] involved four counts of child luring (involving four different children), one count of making sexually explicit material available to a child, and one count of accessing child pornography, all of which garner mandatory minimum sentences.

The appellant asked the court to apply the totality principle and, if necessary, order that the sentences imposed be served concurrently to arrive at a global sentence of three years’ imprisonment. [ 16 ] On appeal, the Newfoundland and Labrador Court of Appeal determined the sentencing judge had committed errors that justified setting aside the initial sentence of eight years’ imprisonment and imposing one based on proper principles. In doing so, the court agreed s 718.3(7) did not apply to the count of making sexually explicit material available to a child (s 171.1(1)(b)). It also agreed the s 171.1(1)(

b) count and one of the child luring counts (s 172.1(1)(a)) involved the same victim and were sufficiently interrelated to be served concurrently. However, the court found the other charges should be served consecutively in accordance with s 718.3(7). As a result, the cumulative sentence, before considering totality, was five years eight months’ imprisonment. [ 17 ] After considering the principle of totality, the court imposed a global sentence of five years’ imprisonment, which was the minimum sentence it could impose through the combined application of s 718.3(7) and the mandatory minimum sentences.

The court concluded the appellant’s request to apply the principle of totality to further reduce his global sentence could only be met if the court disregarded the clear language of s 718.3(7) that directs consecutive sentences for most child sexual offences. [ 18 ] While the court agreed that the provisions for consecutive sentences set out in s 718.3(7) must be read with the totality principle in s 718.2(c), the court did not agree that there was discretion to disregard the provisions of s 718.3(7) mandating consecutive sentences, concluding at paras 71-72: [71] … The language of s. 718.3(7) is clear and unambiguous: “… the court shall direct that a sentence … be served consecutively…” This provision eliminates judicial discretion to order concurrent sentences for the offences caught by s. 718.3(7).

It is not for the courts to pass upon either the wisdom or the necessity for these provisions of the Criminal Code ; it is for the courts to give effect to the intention of Parliament expressed in the clear language of the Criminal Code , except where Charter considerations apply. [72] The totality analysis for the appellant is limited by the consecutive sentences established under s. 718.3(7) and by the mandatory minimum sentences established under ss. 172.1(2)(a), 171.1((2)(a), and 163.1(4.1) . [Emphasis added] [ 19 ] Recently, the Court of Appeal of Alberta in R v Dichrow , 2022 ABCA 282 at para 28 concluded that s 718.3(7), while subject to the principle of statutory totality, cannot be used to run sentences concurrently when they are mandated by s 718.3(7) to run consecutively, citing Clarke at paras 69-72 . [ 20 ] We do not read the appellate authority on this issue as creating conflicting lines of authority.

Had the sentencing judge determined that a fit and proportionate sentence on each offence was something higher than the mandatory minimum, then notwithstanding the individual sentences had to be served consecutively, it was open to her to adjust the global sentence for totality. Here, each offence had already been reduced to the mandatory minimum of one year and s 718.3(7) directs that the sentences be served consecutively. There was no ability for the sentencing judge to reduce the sentence further in these circumstances. IV.

Constitutional Challenge to s 718.3(7) [ 21 ] While an appellate court has the discretion to hear and decide new issues raised for the first time on appeal, that discretion is exercised exceptionally and only in the absence of prejudice to the parties.

The court must consider “the state of the record, fairness to all parties, the importance of having the issue resolved by this [c]ourt, its suitability for decision and the broader interests of the administration of justice”: R v JF , 2022 SCC 17 at para 41 , citing Guindon v Canada , 2015 SCC 41 at para 20 , [2015] 3 SCR 3. [ 22 ] Underlying this appeal is an assumption that the sentencing judge would have reduced the global sentence but for the limits

imposed by s 718.3(7). We draw no such inference or conclusion, given the skeletal nature of the agreed statement of facts. Child pornography falls on a wide continuum and a bare reference to “images” does not allow this Court to assess the gravity of these offences, particularly given that several of these images were sent to one of the complainants.

In short, the circumscribed record does not evince that the global offence of two years’ imprisonment is not fit or proportionate. [ 23 ] Further, it appears that no appellate court to date has assessed the constitutionality of s 718.3(7), [2] and we are asked to entertain this question without the benefit of the sentencing judge’s analysis and perspective. Simply put, the evidentiary record and the absence of the sentencing judge’s reasoned analysis militate against considering the constitutional challenge on appeal. V. Conclusion [ 24 ] The appeal is dismissed.

Appeal heard on September 20, 2022 Memorandum filed at Iqaluit, Nunavut this 27th day of October, 2022 Authorized to sign for: Schutz JA Campbell JA Pentelechuk JA Appearances: M.S. Shadley For the Appellant M. Bryant For the Respondent