R. v. Clarke, 2022 NLSC 86

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Clarke , 2022 NLSC 86 Date : May 19, 2022 Docket : 201806G0114 Her Majesty The Queen v. Kyle Clarke Restriction on Publication: By court order made under subsection 486.4(3) of the Criminal Code , any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

Before: Justice Katherine O'Brien Place of Hearing: Grand Bank, Newfoundland and Labrador Dates of Hearing: December 10, 2021; December 14, 2021; April 21, 2022

Summary: This is a decision on sentence and on a constitutional challenge to the mandatory minimum sentences for possessing and accessing child pornography. The offender was a youthful offender with intellectual and developmental disabilities. He had no prior criminal record. The

Court decided that the mandatory minimum sentences of one year of incarceration for each offence were cruel and unusual punishment inthe circumstances of the offender. The Court found that the sentencing sections of the Criminal Code violated

section 12 of theCanadian Charter of Rights and Freedoms and declared them to be of no force and effect. The Court sentenced the offender to aconditional sentence of 15 months, followed by 12 months of probation. The Court made other ancillary orders. Appearances: Alison J. Manning Appearing on behalf of the Crown Rosellen Sullivan, Q.C. Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Morrison, 2019 SCC 15; R. v. Nur, 2015 SCC 15; R. v. Lloyd, 2016 SCC 13; R. v. Friesen, 2020 SCC 9;R. v. Parranto, 2021 SCC 46; R. v. Noseworthy, 2018 NLSC 233; R. v. Barrett, 2022 NLSC 43; R. v.

Clarke, 2020 NLSC 79; R. v.Swaby, 2018 BCCA 416; R. v. Beach, [2019] O.J. No. 1911 (Ont. Sup. Ct. J.); R. v. Rytel, 2019 ONSC 5541; R. v. Cayabyab, 2019ONCJ 772; R. v. Esposito, 2020 ABQB 165; R. v. Cole, 2021 BCSC 293; R. v. Turner (January 13, 2021), Gander 0919A00076 (NLProv. Ct.); R. v. Proulx, 2000 SCC 5; R. v. Smith, (SCC), [1987] 1 S.C.R. 1045; R. v. Wu, 2003 SCC 73; R. v. Gerbrandt,2021 ABCA 346; R. v. Hunt, 2019 NLPC 1318A00513, STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Canadian Charter of Rights and Freedoms,

Part I of theConstitution Act, 1982, being

Schedule B to the Canada Act 1982, (U.K.) 1982, c. 11; Sex Offender Information Registration Act, S.C.2004, c. 10 REASONS FOR JUDGMENT O'Brien, J.: INTRODUCTION [1] Mr. Clarke pleaded guilty to one count of possession of child pornography contrary to

section 163.1(4) of the Criminal Code,R.S.C. 1985, c. C-46 (the “Code”) and one count of accessing child pornography contrary to

section 163.1(4.1) of the Code. Whenprosecuted by indictment, both of these offences are subject to a mandatory minimum sentence of one year of imprisonment. [2] Mr. Clarke challenged the mandatory minimum sentence provisions as being cruel and unusual punishment and thus contraryto

section 12 of the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act1982, (U.K.) 1982, c. 11 (the “Charter”). Mr. Clarke requested a 12 month conditional sentence plus 12 months of probation and otherancillary orders. [3] The Crown took no position on Mr. Clarke’s Charter challenge. Crown counsel filed an informational brief to assist me inconsidering the issue. In the event that I found the mandatory minimum sentences to be unconstitutional, Crown counsel submitted that afit sentence for Mr.

Clarke is a 24 month conditional sentence plus three years of probation and other ancillary orders. [4] For the reasons that follow, I find that the mandatory minimum sentences are unconstitutional and of no force and effect. I findthat a fit and proportionate global sentence for Mr. Clarke is a 15 month conditional sentence followed by 12 months of probation andother ancillary orders. LAW Law related to s. 12 of the Charter [5]

Section 12 of the Charter establishes the right not to be subjected to cruel and unusual punishment. The bar to establishing abreach of

section 12 is high. A mandatory minimum sentence infringes

section 12 only if it imposes a grossly disproportionate sentence,

which is one that is “so excessive as to outrage standards of decency” and “abhorrent or intolerable” to society. A sentence that is merely excessive does not infringe

section 12 ( R. v. Morrison , 2019 SCC 15 , at para. 143 ; R. v. Nur , 2015 SCC 15 , at para. 39 ; R. v. Lloyd , 2016 SCC 13 , at para. 24 .) [ 6 ] In Nur , the Supreme Court of Canada established a framework for assessing

section 12 challenges of mandatory minimum sentences. First, a court must assess whether the provision results in a grossly disproportionate sentence when applied to the offender before the court. If the court finds that it does not, the court must go on to assess whether the provision’s reasonably foreseeable applications will impose grossly disproportionate sentences on other offenders ( Nur , at para. 77 ). Law related to sentencing [ 7 ] Determining an appropriate sentence starts with the principles of

section 718 of the Code . The sentence must contribute to respect for the law and the maintenance of a just, peaceful, and safe society. It should meet one or more of the following objectives: denunciation, deterrence, separation of offenders from society (where necessary), rehabilitation, reparation, and general promotion of a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community. [ 8 ] The goal in every case is a fair, fit and principled sanction. The organizing principle for reaching this goal is proportionality.

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender ( R. v. Friesen , 2020 SCC 9 , at para. 30 ; R. v. Parranto , 2021 SCC 46 , at para. 10 ). [ 9 ] It is important to consider the offender’s personal circumstances including family and social background, alternatives to incarceration (where they are available and appropriate), and any factors that mitigate or aggravate the offences.

The sentencing sections of the Code have as their primary focus the protection of the public, which is best achieved by crafting a sentence that fits both the offence and the offender. [ 10 ] While each case and each offender is unique, a fit sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This is known as the principle of parity. To arrive at a sentence that is in parity with other sentences , courts look at comparable sentencing decisions.

The principle of parity is secondary to the principle of proportionality, but the two are not at odds with each other as parity assists courts in fixing a proportionate sentence ( Friesen , at para. 31 ; Parranto , at para. 11 ). ISSUES [ 11 ] I will organize my analysis by considering the following issues: a. Absent the mandatory minimum, what is a fit and proportionate sentence for Mr. Clarke? b. Are the statutorily prescribed mandatory minimum sentences grossly disproportionate to Mr. Clarke’s offences and personal circumstances? c.

If the answer to the second question is no, would the mandatory minimum sentences be grossly disproportionate for a reasonably foreseeable hypothetical offender? d. What is the appropriate sentence for Mr. Clarke? ABSENT THE MANDATORY MINIMUM, WHAT IS A FIT AND PROPORTIONATE SENTENCE FOR MR. CLARKE?

Circumstances of the offences [ 12 ] Between October 10, 2016 and May 31, 2017, an integrated police unit of the Royal Canadian Mounted Police and the Royal Newfoundland Constabulary known as the Integrated Child Exploitation or “ICE” unit, received six CyberTipline Reports from the National Centre for Missing and Exploited Children. These reports contained information received from technology companies that identified child exploitation material on their platforms. Reports were received from Google, Chatstep, Yahoo (Flickr), and Dropbox.

The reports identified child pornography that had been uploaded to various user accounts. [ 13 ] Mr. Clarke accessed the child pornography contained in these reports and uploaded it to user accounts he had created. [ 14 ] On August 2, 2017, police executed a search warrant at Mr. Clarke’s home, where he lived with his parents and sister. A number of electronic devices were seized, including a personal computer, a USB drive and two iPhones. The computer contained 1876 accessible images and 752 accessible videos, all of which were child pornography.

The USB drive contained 62 accessible images and 149 accessible videos, all of which were child pornography. Together, the iPhones contained 40 accessible child pornography images. These devices were possessed and used by Mr. Clarke. The child pornography was his. [ 15 ] Counsel filed an agreed statement of facts that included detailed descriptions of a representative sample of the images and videos, rather than filing images and videos themselves. This approach was suggested by Thompson J in R. v. Noseworthy , 2018 NLSC 233 , and recently endorsed by McGrath ACJ (as she now is) in R. v. Barrett , 2022 NLSC 43 .

In appropriate cases, such as this one, proceeding in this manner allows the judge to fulfill his or her judicial role on the conviction and sentencing of an offender, without further victimizing the children involved. The effectiveness of this approach depends on counsel ensuring that they have selected a representative sample of the material and that they have accurately described it. I thank counsel for their work and the sensitivity they have shown for the victims. [ 16 ] The described images depicted boys, between the ages of four and 14 years old, naked, with their penises displayed.

The images showed erect penises, masturbating and, in one instance, a child between the ages of three to five years performing oral sex on a boy aged 12 to 14 years. Another image showed a man touching his erect penis against that of a boy.

[ 17 ] All child pornography involves the reprehensible abuse and degradation of children. However, I note that counsel have not described images or videos showing penetration, extreme depravity, or violence in excess of that always involved in child abuse. Mr. Clarke’s circumstances [ 18 ] I addressed some of Mr. Clarke’s personal circumstances in my decision with respect to the voluntariness of his statement to police (the “Voluntariness Decision”, R. v. Clarke , 2020 NLSC 79 ). Mr. Clarke was 18 and 19 years old when the offences took place.

He has an IQ in the low to low average range and has specific weakness in cognitive efficiency that has been measured in the first percentile. He functions at a developmental level significantly inconsistent with his chronological age. He is a first time offender. [ 19 ] For the present application, I received additional evidence about Mr. Clarke, which I will review. Report of Beverley McLean [ 20 ] Beverley McLean is a registered psychologist. She was retained by Mr. Clarke to assess his cognitive functioning. Ms. McLean provided a report and testified at the voluntariness hearing.

At that time, I qualified her as an expert in relation to the areas covered by her report. Ms. McLean reviewed prior psycho-educational assessments of Mr. Clarke that had been undertaken while he was a student. She also interviewed Mr. Clarke and his mother. I reviewed Ms. McLean’s assessment and her conclusions in the Voluntariness Decision. [ 21 ] Ms. McLean updated her assessment for the sentencing hearing and filed an updated report dated November 5, 2021. Her conclusions have essentially remained the same.

She summarized her updated report as follows: • Kyle is a 23-year-old man who was seen for an updated cognitive assessment. He resides at home with his parents and sister, and spends his time primarily playing video games and watching television. Kyle is not employed and reports that he has no friends. • Mrs.

Zelda Clarke, Kyle’s mother, reports that there has been little change in his functional independence in the last three years and he continues to require supervision and reminders with basic tasks such as personal hygiene. • Intellectual assessment using the Wechsler Adult Intelligence Test, 4th edition shows that Kyle is functioning within the Extremely Low range (0.5th percentile). • Kyle’s oral language skills (eg. expressive vocabulary, oral reading, word reading) are significantly stronger than his skills in verbal problem solving (Similarities). • His Perceptual Reasoning, Working Memory, and Processing Speed abilities are in the Extremely Low range.

These skills are important in attention and concentration, logical reasoning and speed of mental problem solving. • Academically, Kyle is more efficient with reading individual words than with reading and comprehending connected text. • Kyle’s ability to spell individual words is stronger than his ability to express his thoughts and ideas in written form. • Kyle’s ability to solve math problems requiring a verbal response is stronger than his ability to complete written math calculations. • His social judgment is probably fairly poor, and he may have limited social skills. • Kyle reports thoughts of worthlessness, hopelessness, sadness, a loss of interest in normal activities, and a loss of sense of pleasure in things that were previously enjoyed.

He feels a great deal of tension and experiences physical signs of tension and stress. Report of Dr. Neena Sandoval [ 22 ] Dr. Neena Sandoval is a clinical sexologist. She did a sexual risk assessment of Mr. Clarke and produced a report dated November 27, 2017. In the report, Dr. Sandoval reviewed Mr. Clarke’s personal history, including information she obtained from him and his parents. She also described the assessment tests she administered to Mr. Clarke and the results of those assessments.

Her conclusions included the following: Because Kyle: 1) has no history of poor social-sexual boundaries; 2) has no anti-social features; 3) is socially passive; 4) is physically restricted with mobility; and 5) has a supportive family and community this examiner feels he was likely groomed to access child pornography and the consequences of this activity have increased his anxiety significantly as he is appreciating the severity of the

offense and its negative impact on the children involved. These listed factors indicate that Kyle is very unlikely to offend again and, therefore, he is a low risk to re-offend. It is important to note that the characteristics of the individuals who are involved in virtual crime are more often than not different from those who are more emboldened to commit physical sexual assaults. [ 23 ] Dr. Sandoval described Mr. Clarke as vulnerable to someone who would manipulate him. She recommended that he receive further counseling and assistance in behavior management and other life skills. Dr.

Sandoval’s opinion was that Mr. Clarke should not be incarcerated due to his intellectual and social vulnerabilities. She considered that the experience would be traumatic for him as he could be targeted by other inmates. Evidence of Dr. Tessa Collette [ 24 ] Dr. Collette testified at the sentencing hearing and a report of her findings was filed. She is a clinical psychologist who worked for seven years with Correctional Service of Canada conducting risk assessments of offenders, including sex offenders.

Following a review of her education and experience, I qualified her as an expert in sex offender risk assessments. [ 25 ] Dr. Collette reviewed the prior reports of Ms. McLean and Dr. Sandoval and interviewed Mr. Clarke and his mother. She administered two clinical assessment tools to Mr. Clarke, one to assess general risk, need and responsivity to treatment, and one to assess risk for sexual violence. [ 26 ] Dr. Collette found Mr. Clarke to be cooperative and respectful and his responses to be spontaneous, straightforward and honest.

He described for her how he had been bullied in school and did not have many friends. He talked about playing a lot of online gaming and visiting chatrooms associated with gaming prior to his arrest. Mr. Clarke detailed how he was first introduced to child pornography in one of these chatrooms by someone who appeared to share his interests and presented himself as a friend. After this, Mr. Clarke began seeking out more child pornography and interacting with others on the internet who did the same. He became aroused by the images and began accessing it regularly. He reported to Dr.

Collette that he had been doing this for about two and a half years by the time of his arrest. [ 27 ] Mr. Clarke said that when he was accessing child pornography he did not think about the impact on the children. Although he knew his activities were wrong, he rationalized that he did not know the people and he was not taking the photographs or videos. Since his arrest he has received regular counselling and his perspective has changed as a result. He now believes the children likely have emotional and psychological damage from having the videos and photographs taken.

He thinks that the children may have felt sad, scared or unsure of what was going on. He feels that they likely have difficulty trusting adults. Mr. Clarke also discussed with Dr. Collette the negative impacts that his actions have had on his family, which he had not considered at the time he was viewing the material. [ 28 ] Mr. Clarke shared with Dr. Collette that he sometimes still thinks about those images and fantasizes about them when self- pleasuring. He also admitted to being aroused at times when he sees children.

He has been actively participating in counselling with a psychologist since shortly after his arrest and is learning skills to manage these deviant sexual urges. [ 29 ] Dr. Collette’s

summary of her findings include the following: [Mr. Clarke’s] current risk of general recidivism is considered low. Contributing risk factors were employment/education, leisure time/recreation and companions. Specifically, the

summary risk rating for sexual violent recidivism is low. Causing anyone serious physical harm is not likely in this and there is a low immediate risk. While prohibiting internet use has been mitigating immediate risk of transmitting child pornography, there is need for appropriate sex offender treatment targeting his specific pattern of offending and roots of offending. There are suicidal thoughts present and depression symptoms. Interventions targeted at suicidal thoughts and depression is also recommended. K. Clarke provided information that he is learning skills to manage deviant sexual urges which persist.

He continues to be aroused at times when he sees children in community and fantasizes at times when self-pleasuring. Conditions of release have been effective in mitigating risk as internet and online gaming access are restricted taking away opportunity. Interventions have been aiding in managing ongoing unwanted deviant sexual urges. However, an increase in treatment service frequency and intensity is recommended.

Risk can be decreased by forming healthy relationships with same age peers, working or attending structured activities regularly, learning how to initiate and maintain friendships and romantic partner relationships. He also needs to go through a structured and adapted sex offender program. He has good verbal abilities and programs could be adapted. Program should be done in language based oral modality or teaching and responses. Lots of repetition, rehersal and help in generalizing will likely be necessary. He has good insight and is a good candidate for same.

It is recommended this be done individually and with lots of support. He would benefit from adapted cognitive behavioral interventions avoiding written expressions or visuals and favoring verbal and oral modalities. Risk will increase to imminent if he has unsupervised internet access or engages with others that are sexually deviant. K Clarke is extremely vulnerable and there would be significant concerns for his physical and mental wellbeing as well as being an easy target for those in prison with nefarious intentions. He is also highly impressionable and a follower in trade for feeling belonging.

If incarcerated, there would be concerns for other sex offenders in prison may increase his deviancy. He is not antisocial and does not hold their sub-culture beliefs and values. He also has difficulty with social skills. He would have great difficulty navigating the prison sub-

culture successfully. […] This evaluation was shared with K. Clarke on 2021 11 24. He understood the risk levels and content. Any questions were answered. He agreed with the content and stated he thought the recommendations were good. He recognizes the need for further interventions and supervision and welcomes same. He is motivated to change and willing to participate in programming to achieve same. Aggravating factors [ 30 ] Over the two and a half years that he was accessing and viewing child pornography, Mr. Clarke amassed a large collection of material.

Both the period of time he was engaged in the activities and the volume of material he accessed are aggravating factors. Additionally, he proved himself somewhat sophisticated at setting up emails and accounts to enable him to operate over a number of different internet platforms. This too is an aggravating factor. Mitigating factors [ 31 ] There are a number of mitigating factors. Mr. Clarke is a youthful offender with cognitive impairment whose developmental function is significantly inconsistent with his chronological age. Mr.

Clarke has been living in the community on release conditions since the day after his arrest in August 2017, and there have been no known breaches. He has a supportive family. [ 32 ] Mr. Clarke is a first time offender who has accepted responsibility for his actions and shown remorse. Since his release after arrest, he has been actively engaging in therapy and counselling to address his problem with child pornography. Through this process he has gained insight into the wrongness of his actions and learned techniques to cope with his on-going urges.

Comparable sentencing decisions [ 33 ] Counsel filed a number of sentencing decisions in which the mandatory minimum sentence was not applied, although in some cases the offender was given a sentence that was greater than the mandated minimum. The cases I found to be most comparable to Mr. Clarke’s are: a. R. v. Swaby , 2018 BCCA 416 . A 23-year old first time offender who possessed a large quantity of child pornography, including sadistic and violent images, was sentenced to a four month conditional sentence followed by two years of probation. The sentence was upheld on appeal. Mr.

Swaby had similar cognitive impairment to Mr. Clarke. He was also found to be a low risk to reoffend. The Crown proceeded summarily against Mr. Swaby and the mandatory minimum sentence that he would have been subject to had it not been found unconstitutional was 90 days of incarceration. b. R. v. Beach , [2019] O.J. No. 1911 (Ont. Sup. Ct. J.) . A 20 year old first time offender was sentenced to a 12 month conditional sentence followed by two years of probation for possessing and accessing child pornography. Mr.

Beach had been diagnosed with Autism Spectrum Disorder and had intellectual and developmental deficiencies similar to those of Mr. Clarke. Similar concerns about the effects of incarceration on Mr. Beach were raised. Unlike Mr. Clarke, Mr. Beach accessed only a small number of child pornography images. The mandatory minimum sentence that he would have been subject to had it not been found unconstitutional was six months of incarceration. c. R. v. Rytel , 2019 ONSC 5541 .

A 36 year old accused with apparently no criminal record was sentenced to a 15 month conditional sentence followed by probation for possessing and accessing child pornography. He had a very large amount of child pornography, including many images of very young children and babies. Mr. Rytel had intellectual and developmental deficiencies similar to those of Mr. Clarke, but likely more severe. Unlike Mr. Clarke, Mr. Rytel had schizophrenia and his pre-offence history included violent and anti-social behavior. d. R. v. Cayabyab , 2019 ONCJ 772 .

A 33 year old accused pleaded guilty and was sentenced to a 12 month conditional sentence followed by three years of probation for possessing child pornography. He had a small number of images and videos collected over a five month period. Mr. Cayabyab suffered from serious mental health illness, more serious than the deficiencies experienced by Mr. Clarke. e. R. v. Esposito , 2020 ABQB 165 . Mr. Esposito pleaded guilty to possessing, accessing and making child pornography, as well as internet luring. The facts of Mr. Esposito’s case are not similar to those of Mr. Clarke, as Mr.

Esposito had paid a 15 year old girl to send him nude photographs of herself. However, more like Mr. Clarke, Mr. Esposito suffered from significant cognitive deficiencies and was found not to realize the gravity of his offences. He was sentenced to a 2 year conditional sentence followed by two years of probation. f. R. v. Cole , 2021 BCSC 293 . An offender who was 30 and 31 years old during the time of the offence was sentenced to a six month conditional sentence and two years of probation for possessing child pornography. His sentence was upheld on appeal.

He had similar cognitive and developmental deficiencies to Mr. Clarke. Mr. Cole could not live independently and operated at the level of a young teenager. His collection of child pornography was small but included penetrative material. g. R. v. Turner (January 13, 2021), Gander 0919A00076 (NL Prov. Ct.). A young adult offender pleaded guilty to possessing child pornography. He suffered from significant intellectual impairment. He lived with a supportive family.

He received a 12 month conditional sentence followed by 12 months of probation. [ 34 ] With the exception of Cole and, possibly, Turner the cases above predate Friesen . As such, I must keep in mind that upward departure from these precedents may be required to impose a proportionate sentence ( Friesen , at para. 107 ). I also note that some of the

cases proceeded by

summary conviction. Additionally, the minimum and maximum sentences imposed by the Code have increased since some of the cases were decided. Crown and defence submissions [ 35 ] Crown counsel submitted that, absent the mandatory minimum, a conditional sentence order (“CSO”) of 24 months followed by 3 years of supervised probation is an appropriate sentence. She noted that a DNA order and an order under the Sex Offender Information Registration Act , S.C. 2004, c. 10 ( SOIRA ) for life were mandatory. She requested a prohibition order pursuant to

section 161 of the Code , which would prohibit Mr. Clarke from certain activities that could bring him in contact with children. She requested a duration of 10 years. Crown counsel also requested forfeiture of the electronic devices containing the child pornography, pursuant to

section 164.2 of the Code . [ 36 ] Defence counsel submitted that a CSO of 12 months followed by probation of 12 months is an appropriate sentence. She noted that Mr. Clarke has already been living under fairly onerous release conditions for over four and a half years. She agreed that a DNA order and SOIRA order for life were mandatory. She agreed that a

section 161 order for 10 years was appropriate. Defence counsel also agreed with the forfeiture order. Analysis of a fit and proportionate sentence, absent a mandatory minimum [ 37 ] In Friesen , the Supreme Court of Canada gave new direction on sentencing for sexual offences against children. The court made clear that protecting children from wrongful exploitation and harm is the overarching objective of the Code provisions that address such crimes.

It also made clear that violence is always inherent in the act of applying force of a sexual nature to a child and so these crimes are crimes of sexual violence against children. At paragraph 50, the court stated: To effectively respond to sexual violence against children, sentencing judges need to properly understand the wrongfulness of sexual offences against children and the profound harm they case. Getting the wrongfulness and harmfulness right is important. [ 38 ] As explained in Friesen , the harm goes far beyond any fear, pain or confusion they might feel at the time of the abuse.

Sexual violence can interfere with children’s self-fulfillment and healthy development to adulthood. The effects can be devastating and permanent. Sexual violence also causes harm to children by damaging their relationships with their families and communities and can have devastating ripple effects into those groups. [ 39 ] As with all offences that involve the abuse of children, denunciation and deterrence are the most important factors to consider in sentencing Mr. Clarke ( Code ,

section 781.01). In order to determine a proportionate sentence I must recognize and give effect to: (1) the inherent wrongfulness of his accessing and possessing child pornography; (2) the potential harm to children that flows from these offences; and (3) the actual harm that children suffered as a result of these offences ( Friesen , at para. 76 ). [ 40 ] I also must consider Mr. Clarke’s moral blameworthiness. Notwithstanding that Mr. Clarke did not think about the impact of his activities on the children he was viewing, he knew his actions were wrong.

As noted in Friesen at paragraph 88 , people who commit sexual offences against children will usually have at least some awareness of the profound physical, psychological and emotional harm that their actions may cause. By viewing children for his sexual gratification, Mr. Clarke treated children as sexual objects and disregarded their human dignity. [ 41 ] That being said, I accept that Mr. Clarke’s personal circumstances are such that his moral culpability is significantly reduced. Mr.

Clarke was a youth himself when he started viewing child pornography images and he was lead to view them by some unknown and unscrupulous person in a chatroom. In addition to his youth, Mr. Clarke’s intellectual and developmental deficiencies made him particularly vulnerable to such influence and I accept that they impacted his ability to fully understand the wrongfulness of his actions and the serious harm he was perpetrating against the victims. I note that the true harm caused to children by viewing and accessing child pornography has not always been evident to adults working within the justice system.

This is one of the reasons that the Supreme Court of Canada took such care in Friesen to review the modern medical and social understanding of the serious and long-lasting harm that flows from such crimes. [ 42 ] In my view, a fit and proportionate sentence for Mr. Clarke is not one that materially increases the risk of him reoffending. [ 43 ] Dr. Collette assessed Mr. Clarke’s risk of recidivism as low. However, she stated that the risk would increase to “imminent” if he engages with others that are sexually deviant. Dr. Collette considered Mr.

Clarke to be “extremely vulnerable” and she had significant concerns that he would be an easy target for those in prison with nefarious intentions. Based on her significant experience with prison populations, Dr. Collette testified that sex offenders are typically housed together. In this environment, she observed that these offenders can “feed on one another” and get to know how to hide their deviancies. Essentially, they can share ideas on how “to do things better”, that is, without getting caught. Dr. Collette was concerned that in prison, Mr.

Clarke may become more deviant and learn how to feed that deviancy without being detected. [ 44 ] Dr. Collette was also concerned that Mr. Clarke would not understand and would have difficulty navigating the nuances and sub-culture of prison life. She found that Mr. Clarke is not antisocial and does not hold the beliefs and values shared by many in this sub- culture. However, in Dr. Collette’s opinion, Mr. Clarke’s living within the prison environment could change that. It could also put his mental and physical health at risk. [ 45 ] Dr. Collette also considered that Mr.

Clarke’s risk of recidivism could increase to “imminent” if he has unsupervised internet access. As I understood her evidence, such access would make him vulnerable to further contact and manipulation by those with sexual deviancy and ready access to child pornography materials might result in Mr. Clarke succumbing to his urges. It is important to note that Dr. Collette’s opinion is that Mr. Clarke should participate in specific, structured, adapted and regular sex offender treatment programing. As I understand her view, it is that Mr.

Clarke requires further specialized treatment to ensure that his present deviant urges do not develop into further crimes.

[ 46 ] I accept Dr. Collette’s evidence. She was a knowledgeable and experienced witness who gave measured and balanced testimony. Mr. Clarke’s child-like vulnerability has been evident to me in the way that he has conducted himself before the Court and in the material that I have reviewed. He has been candid and sincere in speaking with Dr. Collette and others. He has readily acknowledged that he continues to have urges and expressed his own concern that if he had access to the internet now he might succumb to those urges. His candor in this regard helps me in determining a fit sentence.

First, it highlights for me Mr. Clarke’s vulnerability to unscrupulous people. It also impresses upon me the need for the strict restrictions on his internet access, as Dr. Collette indicated. [ 47 ] A CSO is a sentence served in the community, subject to the offender’s compliance with court-imposed conditions. It is a punitive sanction capable of achieving the objectives of denunciation and deterrence ( R. v. Proulx , 2000 SCC 5 , at para. 22 ).

Before imposing a CSO, a court must be satisfied that it would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing ( Code ,

section 742.1 ). [ 48 ] Conditions restricting internet use can form part of a CSO. Mr. Clarke has abided by court conditions for over four and a half years. His family is supportive and willing to monitor Mr. Clarke’s activities. Dr. Collette believed that Mr. Clarke would follow court- imposed conditions. He has expressed to her a willingness to do so. I am satisfied that Mr. Clarke is a good candidate for a CSO and that with proper conditions such an order would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing. [ 49 ] Mr.

Clarke’s rehabilitation is also an important sentencing goal. He is a young adult who lives in a small rural community. Even if he were incarcerated, he would eventually return to that community. His healthy and successful reintegration into society is an important objective. [ 50 ] Having considered the above factors, I do not find that a fit and proportionate sentence for Mr. Clarke is one of incarceration.

I am satisfied that the gravity of the offences, the harm that he has done, the wrongfulness of his actions and the denunciation and deterrence called for can be met with a CSO and a period of probation, with strict conditions, particularly around internet use. [ 51 ] Without regard for the mandatory minimum, I would find a CSO of 15 months, in addition to the ancillary orders, to be a fit and proportionate sentence. In settling on this term, I have considered the above-cited precedents and the direction given in Friesen .

I believe that the duration of the sentence, longer than a number of the above-cited precedents, reflects the principles of denunciation and deterrence and recognizes the harm that Mr. Clarke has done to an unknown number of child victims. I also believe that it recognizes the unique circumstances of Mr. Clarke’s case, both the aggravating and the mitigating circumstances that I have already discussed. By permitting the sentence to be served in the community, Mr. Clarke’s prospects for rehabilitation would be enhanced. ARE THE STATUTORILY PRESCRIBED MANDATORY MINIMUM SENTENCES GROSSLY DISPROPORTIONATE TO MR.

CLARKE’S OFFENCES AND PERSONAL CIRCUMSTANCES? The mandatory minimum sentence [ 52 ] Prior to 2005, there was no mandatory minimum sentence for possessing or accessing child pornography. This changed in 2005 with the introduction of minimum sentences of 14 days when the Crown proceeded summarily and 45 days when the Crown proceeded by indictment. The minimums were increased by Parliament in 2012 and again in 2015. The current sentencing provisions for indictable offences read: s. 163.1

(4) Every person who possesses any child pornography is guilty of (

a) an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; s. 163.1

(4.1) Every person who accesses any child pornography is guilty of (

a) an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; [ 53 ] A CSO is not available for offences punishable by a mandatory minimum term of imprisonment ( Code ,

section 742.1 (b)). [ 54 ] In the result, applying the mandatory minimum sentence to Mr. Clarke would result in him serving at least one year of incarceration, assuming his sentences were served concurrently. In similar cases where offences of both possessing and accessing child pornography were committed, concurrent sentences were given. Analysis of gross proportionality

[55] Whether a sentence is grossly disproportionate is not assessed on its duration alone. The nature and conditions under which thesentence will be served must also be considered (R. v. Smith, (SCC), [1987] 1 S.C.R. 1045, at 1073.) [56] I do not find the length of the minimum mandatory sentence to be grossly disproportionate for Mr. Clarke. As alreadyindicated, I believe a sentence of 15 months is appropriate for his circumstances. However, I find that the nature of the mandatedsentence, incarceration, makes it grossly disproportionate.

Although a CSO is a sentence of imprisonment (Proulx, at para. 29), it is not aperiod of incarceration. Instead of serving the sentence in a penal institution, the offender serves it under punitive conditions in thecommunity (R. v. Wu, 2003 SCC 73, at para. 25). [57] I have found that incarceration poses significant risks for Mr. Clarke. In prison he would be particularly vulnerable to theinfluence and aggressions of predatory inmates. A prison stay would increase his risk of recidivism. It would also pose risk to hisphysical and mental well-being.

Given his intellectual and developmental deficiencies, his youthfulness, and his reduced moralblameworthiness, I am satisfied that sending Mr. Clarke to prison would outrage the standards of decency of most informed Canadiansand would be considered by them to be “abhorrent or intolerable”. Remedy on Charter breach [58] As I have found that the mandatory minimum sentences would be grossly disproportionate for Mr. Clarke, I do not need toconsider their impact on a reasonably foreseeable hypothetical offender.

However, I note that a number of Canadian courts have gonethrough this exercise. [59] Crown counsel filed a brief canvassing the status of sections 163.1 (4) and (4.1) across Canada. In all cases filed, themandatory minimum sentences for possessing and accessing child pornography were found to violate

section 12 of the Charter, either forthe particular offender or for a foreseeable hypothetical offender. The only exception is R. v. Gerbrandt, 2021 ABCA 346, a case inwhich the Alberta Court of Appeal overturned the sentencing judge’s determination that

section 163.1 (4) was unconstitutional.However, in Gerbrandt the Court of Appeal did not itself determine the constitutionality of the

section (at paras. 62 and 63). [60] The constitutionality of sections 163.1 (4) and (4.1) have not previously been considered by this Court. Both have beenconsidered by judges of the Newfoundland and Labrador Provincial Court and have been found to breach

section 12 (see Turner, and R.v. Hunt, 2019 NLPC 1318A00513, ). By virtue of their sitting on a provincial court, neither judge had authority todeclare the sections of no force and effect. However, their reasoning and findings are sound. [61] I have found that sections 163.1(4) and (4.1) of the Code violate

section 12 of the Charter. Such violations may be justified asa reasonable limit on rights and freedoms in a free and democratic society pursuant to

section 1 of the Charter. The onus would be on theCrown to establish this. In this case, the Crown has offered no evidence or argument under

section 1 of the Charter to justify thebreaches. Accordingly, pursuant to section 52(1) of the Charter, I declare the sections of no force or effect. What is a fit and Proportionate sentence for Mr. Clarke? [62] I have already explained why I consider a 15 month CSO a fit and proportionate sentence for Mr. Clarke. I attach theconditions for that sentence as Appendix A. [63] In addition, I find that a period of probationary supervision of 12 months is appropriate. Mr. Clarke has been under fairly strictrelease conditions for over four and a half years.

Had he not been under such restriction for such a long time already, I would haveordered a longer period of probation. I attach the conditions for probation as Appendix B. [64] In addition to the mandatory DNA and SOIRA orders and the forfeiture order, I find it appropriate to make a prohibition orderpursuant to

section 161 of the Code for 10 years, in accordance with the submissions of both counsel. I attach terms for the prohibitionorder as Appendix C. DisposItion [65] Mr. Clarke is sentenced as follows: a. For possession of child pornography contrary to

section 163.1(4) of the Code – 15 months to be served as a conditional sentence,followed by a period of probation of 12 months. b. For accessing child pornography contrary to

section 163.1(4.1) of the Code – 15 months to be served as a conditional sentence,followed by a period of probation of 12 months, concurrent with the sentence for possession. [66] In addition, I impose the following ancillary orders: a. Pursuant to

section 487.051(1) of the Code, a DNA order in Form 5.03. b. Pursuant to

section 490.012 of the Code, a SOIRA order in Form 52, for a period of life, in accordance with

section 490.013(2.1). c. Pursuant to section 161(1) of the Code, a prohibition order for 10 years on the terms of Appendix C. d. Pursuant to

section 164.2 of the Code, a forfeiture order for: the hard drive of the Cybertron desktop PC (PE01), the USB drive(PE02) and two Apple iPhone 5s (PE03 and PE05).

_____________________________ Katherine O'Brien Justice Appendix A CSO Conditions 1. Keep the peace and be of good behaviour. 2. Appear before the court when required to do so by the court. 3. Report to a supervisor at Community Corrections at Marystown, NL within 1 working day and thereafter when required and in the manner directed by the supervisor or someone acting in his/her stead. 4. Remain within the Province of Newfoundland and Labrador unless written permission to go outside the Province is obtained from the court or the supervisor. 5.

Notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation. 6.

Remain within your residence or on your property adjacent thereto except for: attendance for medical or dental treatment; attendance at ordered awareness or educational programs or counselling; attendance at place of worship; attendance at your place of employment for purposes of employment only; attendance at school for purposes of completing courses in which you are enrolled as a student; performance of ordered community service; 2 hour each day between 6:30 pm and 8:30 pm; between 11 am and 4 pm each Saturday for, banking, shopping and errands; and any other purpose approved in advance by your supervisor. 7.

Abstain from the possession or consumption of alcohol or other intoxicating substances. 8. Abstain from the possession or consumption of drugs or controlled substances except in accordance with a medical prescription. 9. Abstain from owning, possessing or carrying any weapon, ammunition or explosive substance. 10. Attend and participate actively in such awareness or educational or assessment programs or counselling sessions to which you might be referred by your supervisor; and in particular any relating to sexual offender recidivism minimization and cognitive skills upgrading. 11.

Refrain absolutely from possession or use of a computer, tablet, cellphone or other electronic device enabled for internet use, except for use in accordance with condition 12. 12. Refrain absolutely from accessing the internet except with the prior approval of your supervisor and under the supervision of your supervisor or a person approved by your supervisor. Appendix B Probation Conditions 1. Keep the peace and be of good behaviour. 2. Appear before the court when required to do so by the court. 3.

Notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. 4. Report to a probation officer within 2 working days (of your release from the Conditional Sentence Order) and thereafter when required and in the manner directed by the probation officer. 5. Remain within the Province of Newfoundland and Labrador unless written permission to go outside the Province is obtained from the court or the probation officer. 6.

Attend and participate actively in such awareness or educational or assessment programs or counselling sessions to which you

might be referred by your probation officer, and in particular relating to: sexual offender recidivism minimization and cognitive skills upgrading. 7. Refrain absolutely from possession or use of a computer, tablet, cellphone or other electronic device enabled for internet use, except for use in accordance with condition 8. 8. Refrain absolutely from accessing the internet except with the prior approval of your probation officer and under the supervision of your probation officer or a person approved by your probation officer.

Appendix C Terms of Prohibition Order 1) You may possess an internet capable device and use it to access the internet in accordance with the conditions below; however, you must do so on a device for which you, Zelda Clarke, and/or Corey Clarke are the sole owners and users.

Further, the internet service must be in your own name, or that of Zelda Clarke or Corey Clarke, or else provided through your employer or the education institution you are attending, if applicable; 2) You may not access the internet using public wi-fi services, internet cafes, or via shared public computers (e.g. computers at a public library); 3) Except as outlined in writing by your employer for legitimate work purposes, you shall not use any encryption software or security program designed to prevent access to the contents of your internet capable devices or take independent action to encrypt any digital storage devices in your possession.

Except as outlined in writing by your employer for legitimate work purposes, you shall not install or permit to be installed on your internet capable device any software or service designed to defeat forensic analysis of the internet capable device; 4) Except as outlined in writing by your employer for legitimate work purposes, you shall not use or permit to be installed on any device in your possession any program or service designed to allow anonymous use of the internet (e.g.

TOR browser); 5) You shall not use or permit to be installed on any device in your possession any scrubbing software or software that saves files in an encrypted fashion; 6) You are not to directly or indirectly access any chatrooms, messaging apps, or peer-to-peer file sharing networks (including but not limited to Dropbox, Kik, Flikr, and Chatstep); and 7) You are not to use any telecommunication device to access the internet or other digital network in order to possess or access content that violates the law.