R. v. Basov, 2015 MBCA 22

Citation: R. v. Basov, 2015 MBCA 22 Date: 20150227 Docket: AR13-30-08099 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin Mr. Justice William J. Burnett BETWEEN : HER MAJESTY THE QUEEN ) J. Kostiuk ) for the Appellant ) Respondent ) S. J. Christie ) for the Respondent - and - ) ) Appeal heard: DENYS VALERIYOVYCH BASOV ) September 26, 2014 ) ) Judgment delivered: (Accused) Appellant ) February 27, 2015 BEARD J.A. I. THE ISSUES [ 1 ] The accused pled guilty under s. 159 of the Customs Act , S.C. 1986, c. 1, to one count of smuggling child pornography into Canada.

Following a contested sentence hearing, he was sentenced to two and one-half years’ (30 months’) imprisonment, less credit for the equivalent of nine months of pre-sentence custody. He has appealed the length of the period of imprisonment, but not the allowance for the pre-sentence credit. [ 2 ] The accused has raised the following two grounds of appeal: (

i) the sentencing judge placed undue weight on the number of images located on the accused’s laptop in arriving at the appropriate sentence; and (ii) the sentencing judge failed to adequately take into account the mitigating factors when imposing sentence. [ 3 ] In addition, the accused argues that the sentence is unfit because the sentencing judge exceeded the range of sentence for this offence. II.

THE FACTS [ 4 ] The sentencing judge set out the facts of the offence as follows: The facts, as I understand them, are that [the accused] was employed as a commercial long distance truck driver, and was driving, along with another person, a commercial vehicle entering Manitoba from the United States through the border stop at Emerson, Manitoba.

Upon questioning by the Canadian border officials he produced a laptop computer; that computer was accessed and the officials found 337 still images and six videos that all parties agree meet the definition of child pornography, as set out in our Criminal Code . [ 5 ] The sentencing judge also noted that the images were classified on the basis of a classification system adopted in the United Kingdom in 2002 in the decision of Oliver & Ors, R. v., [2002] EWCA Crim 2766, [2003] 2 Cr. App. R. (S) 15 (BAILII), and later adopted in this province. (See, for example, R. v.

Brooks (J.C.) , 2010 MBPC 61 , 263 Man.R. (2d) 186; and R. v. Lague (G.J.) , 2013 MBQB 32 at paras. 19 , 32, 287 Man.R. (2d) 204.) That system classifies the content of pornographic images into five levels: (

i) erotic posing with no sexual activity; (ii) sexual activity between children or solo masturbation by a child; (iii) non-penetrative sexual activity between adults and children; (iv) penetrative sexual activity between children and adults; and (

v) sadism or bestiality.

[6] In this case, the sentencing judge noted that there were 206 images in the first category, 12 images in the second, 59 stillimages and five videos in the third category and 60 images and one video in the fourth category.

There were no images in the fifthcategory. [7] There were a further 474 still images and six videos on the accused’s laptop which depicted girls, some as young asthree and six years old, and young women in bathing suits and underwear which fell short of meeting the definition of child pornography. [8] The accused is a Ukrainian citizen and was working in Canada as a commercial truck driver when he was arrested onMay 7, 2013. He was then 36 years old and married with two children, all of whom were living in Ukraine.

It is agreed that he will bedeported when he is released from jail, and both he and his family will lose this opportunity to move to Canada. At the sentencinghearing, the Crown advised the sentencing judge that the accused had no criminal record and came before the court as a first-timeoffender. III. STANDARD OF REVIEW [9] The standard of review on a sentence appeal is well known.

Absent an error in principle, failure to consider a relevantfactor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence at trial if the sentence isdemonstrably unfit. (See, for example, R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227; R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500 at para. 90; R. v. Draper (T.G.), 2010 MBCA 35, 251 Man.R. (2d) 267; R. v. Ruizfuentes (H.S.), 2010MBCA 90 at para. 7, 258 Man.R. (2d) 220; and R. v. Smoke (D.D.), 2014 MBCA 91 at para. 8, 310 Man.R. (2d) 123.) IV. THE SENTENCING JUDGE’S DECISION [10] The sentencing judge stated: ....

The appropriate and indeed the only sentencing objectives that can go as far as possible in terms of addressing the offencebefore the court are the objectives of denunciation and deterrence, as it is with all sexual offences involving children. . . . . . My goal in this sentence is to do what this court can in cutting off the supply and punishing the demand of child pornography. Wemust protect our children.

I strive to balance mitigating factors with the aggravating factors to ensure that a fit and appropriate sentenceis visited upon [the accused]. [11] She then listed as mitigating factors the guilty plea, the loss of his employment and his impending deportation.

As wasargued by the defence, she did not refer to the fact that the accused was a first-time offender. [12] The sentencing judge then considered the aggravating factors, which she found were numerous: the items beingsmuggled were child pornography, which was being smuggled across an international border; there was a high number of images; thenature of the images went from erotic poses to penetrative sexual activity between children and adults; the images were collectedbetween August 2012 and March 2013, a lengthy period of time; and, in addition, there were many erotic but non-pornographic images ofyoung children. [13] The sentencing judge found the facts of R. v.

Emmerling (29 May 2013), Winnipeg (Man. Prov. Ct.), to be the closest tothose in this case and that a lengthy custodial sentence was the appropriate disposition. V. THE POSITIONS OF THE PARTIES [14] As noted above, the accused’s position is that the sentencing judge erred by giving undue weight to the number of imagesfound on the accused’s computer and in failing to take into account that the accused was a first-time offender.

He further argues that thesentence of 30 months is unfit because it exceeds the range of sentence for this offence. [15] The Crown argues that denunciation and deterrence are the primary considerations in sentencing for sexual offencesinvolving children. It argues that the aggravating factors set out by the trial judge were all relevant to show the seriousness of theoffence and to demonstrate that the behaviour was not a momentary lapse in judgment or idle curiosity but was a calculated system ofcollection of disturbing images. It further argues that the sentencing judge took account of the mitigating factors. In

summary, itsposition is that the sentencing judge did not overemphasize or underemphasize any of the factors, none of which were in dispute. [16] Finally, the Crown notes that there are relatively few precedents dealing with the smuggling of child pornography, suchthat it would be premature to speak of a “range.” It refers to seven Manitoba decisions, all except one from the Provincial Court, that,according to the Crown, indicate that the sentence for this offence has been steadily increasing over the past decade. [17] The Crown argues that there was no reviewable error on the part of the sentencing judge.

Its position is that this sentencerepresents an incremental increase from previous sentences for this type of offence, as occurred in Ruizfuentes and R. v. Junkert (M.),2010 ONCA 549, 267 O.A.C. 7. It argues that the 30-month sentence in this case is not clearly excessive or unfit, is owed considerabledeference and should not be overturned.

VI. ANALYSIS (

i) Failure to refer to a mitigating factor [ 18 ] The Supreme Court of Canada has been very clear about the role of appellate courts when reviewing the reasons of trial judges. In a unanimous decision in R. v. R.E.M. , 2008 SCC 51 , [2008] 3 S.C.R. 3, McLachlin C.J.C. stated (at paras. 37, 43): As we have seen, the cases confirm that a trial judge’s reasons should not be viewed on a stand-alone, self-contained basis.

The sufficiency of reasons is judged not only by what the trial judge has stated, but by what the trial judge has stated in the context of the record, the issues and the submissions of counsel at trial . .... ... [W]hat is required is that the reasons, read in the context of the record and the submissions on the live issues in the case, show that the judge has seized the substance of the matter. Provided this is done, detailed recitations of evidence or the law are not required. (See also R. v. Vuradin , 2013 SCC 38 at paras. 12-13 , [2013] 2 S.C.R. 639; Draper ; and R. v.

Huska , 2014 MBCA 114 at para. 12 .) [ 19 ] In Draper , Steel J.A., for the court, stated that “[a] judge does not have to reference all the mitigating circumstances of an individual in his reasons for sentence” (at para. 17). [ 20 ] Although the sentencing judge made no specific mention of the accused being a first-time offender in her reasons, the arguments were presented and the sentence was pronounced on the same day, so the submissions, including the Crown’s reference to the accused having no criminal record, were fresh in the sentencing judge’s mind.

As noted above, the law is clear that a judge is not required to repeat everything that was said in argument – absent an indication otherwise, it is to be assumed that the judge was aware of, and took into account, the totality of the submissions of the parties. Ordinarily, this failure would not amount to an error on the part of the sentencing judge. I will have more to say about this later. (ii) Weighing the aggravating factors [ 21 ] The accused argues that the sentencing judge gave undue weight to the number of images on the accused’s laptop as an aggravating factor.

He takes the position that the number of images is less important than the circumstances surrounding the smuggling and the purpose for which the material is being smuggled. In this case, he notes that there is no suggestion of an intention on the part of the accused to traffic in the prohibited material, whether for profit or not. [ 22 ] Again, the law regarding appellate review of a sentencing judge’s weighing of the evidence and the conclusions to be drawn from that is very clear. Iacobucci and Major JJ., for the majority, stated as follows in Housen v.

Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235 (at paras. 23-24 ): We reiterate that it is not the role of appellate courts to second-guess the weight to be assigned to the various items of evidence. If there is no palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only where the inference-drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion.

The appellate court is not free to interfere with a factual conclusion that it disagrees with where such disagreement stems from a difference of opinion over the weight to be assigned to the underlying facts. .... .... The essential point is that making a factual conclusion, of any kind, is inextricably linked with assigning weight to evidence, and thus attracts a deferential standard of review. While Housen is a civil law case, the principles regarding the standards to be applied to appellate review of a trial judge’s decision set out therein have been applied in criminal law cases. (See, for example, R. v.

D.A.I. , 2012 SCC 5 at para. 89 , [2012] 1 S.C.R. 149; R. v. N.S. , 2012 SCC 72 at para. 25 , [2012] 3 S.C.R. 726; and R. v. Mian , 2014 SCC 54 at para. 40 . See also R. v. Nasogaluak , 2010 SCC 6 at para. 46 , [2010] 1 S.C.R. 206.) [ 23 ] While the accused argues that the sentencing judge did not give sufficient weight to the fact that there was no suggestion of an intention to traffic in the prohibited material, whether for profit or not, the question of trafficking did not come up in the proceedings.

It was clear that what was at issue was smuggling and possession for personal use, and that was the underlying circumstance in all of the cases to which reference was made. Thus, there is no basis to suggest that the sentencing judge should have taken the factor of no trafficking into account.

Further, the number of images is a relevant aggravating factor and the trial judge did not err in her assessment of this factor. (iii) Fitness of sentence [ 24 ] Finally, the accused’s position is that the sentence is unfit because it exceeds the range of sentence under s. 159 of the Customs Act for smuggling child pornography into Canada, which he argues is between nine and 24 months, including scenarios where the accused has a criminal record.

The Crown’s position is that the sentence is not unfit, that the cases provide only guidelines and that the sentences for this crime have been increasing over the past decade. [ 25 ] The Supreme Court of Canada recently discussed the use of sentencing ranges in Nasogaluak . LeBel J., for the court, stated that the use of a range of sentence encourages greater consistency between sentences, in accordance with the principle of parity set

out in the Criminal Code . He further stated that sentencing ranges are not to become hard and fast rules, and a sentence outside of the range is not necessarily unfit. A judge can order a sentence outside of the range as long as it is in accordance with the principles and objectives of sentencing. (See para. 44.) [ 26 ] Both the accused and the Crown have referred to sentencing precedents from Manitoba – principally from the Provincial Court of Manitoba. This is an opportunity to review the case law from across the country to determine what sentences are being imposed in other jurisdictions.

I have limited the research to the past ten years, and it must be noted that only eight Manitoba decisions and ten non-Manitoba decisions under s. 159 have been located.

While the Manitoba decisions do not include Criminal Code charges, many of the non-Manitoba ones do, the most common being possession of child pornography under s. 163.1(4). [ 27 ] The statutory maximum period of incarceration for an indictable offence under s. 159 of the Customs Act is the same as that for the possession of child pornography in s. 163.1(4) of the Criminal Code , being a sentence of five years, but there is a mandatory minimum sentence of incarceration under the Criminal Code that does not apply under the Customs Act .

The accused in this case has not been charged with any offence under the Criminal Code . [ 28 ] Further, it is clear that, generally speaking, the presence or absence of a criminal record is a significant factor in determining an appropriate sentence.

Thus, for comparison purposes, I have divided the cases into those in which the accused was a first-time offender or there is no mention of a criminal record and those in which the accused had a criminal record. [ 29 ] I have attached the following appendices: Appendix A contains Manitoba cases under s. 159 of the Customs Act in which the accused had no criminal record or there is no mention of a criminal record (three decisions). The sentences range from a low of five months in 2008 to a high of 18 months in 2012.

Appendix B contains Manitoba cases under s. 159 of the Customs Act in which the accused had a criminal record (five decisions). The sentences range from a low of 11 months in 2007 and 10 months in 2010 to a high of 24 months in 2011 and 2012. Appendix C contains non-Manitoba cases under s. 159 of the Customs Act (ten decisions). The sentences range from a low of only days in custody to a high of 22 months. Further, the 22-month sentence is somewhat of an outlier as the next highest sentence is one year.

Appendix D contains Canadian appellate cases under the Criminal Code for possession of child pornography in which the accused had no criminal record (nine decisions). The sentences range from a low of a 15-month conditional sentence in 2004 (no longer available) to a high of 20 months in 2010, although that sentence is somewhat of an outlier as all of the other sentences, including the four sentences after that, were 12 months or less. Appendix E contains Canadian appellate cases under the Criminal Code for possession of child pornography in which the accused had a criminal record (five decisions).

These sentences have remained close to one year. [ 30 ] In

summary, the majority of sentences are around one year, and the highest sentence under s. 159 of the Customs Act for an accused with no record is 18 months. Further, none of the sentences outside of Manitoba for an accused with no record, whether under s. 159 of the Customs Act or for possession of child pornography under the Criminal Code , have exceeded 22 months with the highest sentence for an accused with a criminal record being 24 months.

Thus, I would find that a sentence of 30 months is outside of the range of sentence for this type of an offence, particularly for an accused with no criminal record. [ 31 ] That said, the fact that a sentence is outside of the range of sentences for that offence is not an error if the circumstances of the offence and the offender support such a sentence. [ 32 ] The sentencing judge relied heavily on the 2013 decision in Emmerling to determine the appropriate sentence in this case, but, instead of sentencing this accused to the same term of incarceration of 24 months, she increased it to 30 months.

Her explanation for increasing the sentence was that this accused had more photos and videos with more serious depictions than did the accused in Emmerling . [ 33 ] The sentencing judge made certain errors in her assessment of the evidence. Firstly, as was argued by the accused, the sentencing judge made no mention of the fact that this accused had no criminal record. That would not normally attract appellate attention, except that in this case it differentiates this accused from the accused in Emmerling who had a criminal record, albeit a dated and unrelated one.

This should have led to this accused receiving a shorter sentence than the accused in Emmerling , or, at least in this case, this difference should have been addressed by the sentencing judge. [ 34 ] Secondly, she erred in stating that the depictions in this case were more serious than those in Emmerling , when, in fact, the sentencing judge in Emmerling categorized one of the photos as being a level five photo, depicting sadism, which was not the case here. [ 35 ] Thirdly, both counsel have indicated that this accused will be deported from Canada immediately upon his release from prison and will lose the opportunity for himself and his family to relocate to Canada.

While this is not, strictly speaking, a mitigating factor, it is viewed as an additional fact to be taken into account in sentencing. (See R. v. Pham , 2013 SCC 15 , [2013] 1 S.C.R. 739.) The accused in Emmerling was a U.S. citizen, and there was no indication that he had any aspirations of relocating to Canada that would be lost as a result of his conviction.

The loss of the accused’s ability to relocate to Canada may have indicated that this accused should receive a lower sentence than the accused in Emmerling and, in any event, should have been taken into account by the sentencing judge as she compared this case to Emmerling , but it was not. [ 36 ] Finally, she noted the very “unsettling” factor in Emmerling of the presence of children’s toys, movies and a weapon that was not present in this case, yet made no allowance for it. The sentencing judge in Emmerling had this to say about these items: ....

More specifically, the fact that in the context of the possession of child pornography the accused also had items of this nature in

his possession, appealing and alluring as they no doubt would be to young children, significantly magnifies the nature of the risk posed by the accused, as well as his level of moral culpability. [ 37 ] Again, this difference was a factor that should have led to a higher sentence in Emmerling . [ 38 ] While I don’t disagree that Emmerling was an appropriate comparator to begin the determination of the sentence in this matter, I would find that the sentencing judge made palpable and overriding errors in the manner in which she considered and weighed the evidence and the factors as she made that comparison and, ultimately, in setting the sentence for the accused in this matter.

Thus, I would find that the sentence in this matter is not a fit sentence. [ 39 ] Considering the circumstances of this offence and offender as set out herein, and considering the precedents to which I have referred, I would sentence this accused to a period of incarceration of 20 months. From that I would deduct nine months for pre- sentence custody, as ordered by the sentencing judge, leaving a sentence of 11 months of incarceration. VII. DECISION [ 40 ] I would grant the accused leave to appeal his sentence. I would grant the appeal and reduce his sentence from 30 months to 20 months of incarceration.

From that I would deduct nine months as credit for pre-sentence custody, leaving a sentence of 11 months of incarceration. J.A. I agree: J.A. I agree: J.A. APPENDIX A Manitoba Sentences Under s. 159 of the Customs Act Accused With No Record R. v. Thomas (7 October 2008), Winnipeg (Man. Prov. Ct.): The accused attempted to enter Canada with a laptop computer which was found to contain just under 20 images of naked young children, several of which appeared to be child pornography, and 65 movies containing still images of naked children. He pled guilty, was remorseful and had no criminal record.

He was sentenced to five months in custody in addition to the time served of two months, for which he received credit on a 2:1 basis. The effective sentence was nine months’ incarceration. R. v. Krawczyk (3 November 2009), Winnipeg (Man. Prov. Ct.): The accused was an American commercial truck driver who was searched at the border.

He was found to have four children’s dolls, several leather outfits including one in a very small size, three internal hard drives and six CDs which contained a total of 24 images and videos of oral and anal sex and intercourse involving girls between approximately four and twelve years old and adult males. The accused immediately admitted to the offence, pled guilty and had no criminal record. Following a joint recommendation, he was sentenced to 12 months’ incarceration, with a credit of 12 months for pre- sentence custody. R. v. Therneau (28 May 2012), Winnipeg (Man. Prov.

Ct.): The accused was an American truck driver who was found in possession of 312 images, seven videos and 888 computer-generated pictures depicting child pornography. There is no indication whether the accused had a criminal record. He was sentenced to 18 months’ incarceration. APPENDIX B Manitoba Sentences Under s. 159 of the Customs Act Accused With Prior Record

R. v. Strader (17 July 2007), Winnipeg (Man. Prov. Ct.): The accused was found to have child pornography on his computer when he was entering Canada, being 220 still images involving girls between seven and 11 years old and one video involving girls between three and 12, that included oral sex with adult males. The accused had no criminal record, but he had a prior conviction by way of court marshall in the U.S. of attempting to receive child pornography for which he received a sentence of 90 days’ detention.

He pled guilty and there was a joint recommendation of a period of incarceration of between nine and 12 months, and he was sentenced to 11 months less a credit of four and one-half months for pre-sentence custody. R. v. Brooks (J.C.) , 2010 MBPC 61 , 263 Man.R. (2d) 186 : The accused was a 24-year-old American commercial truck driver. His computer was searched at the border and was found to contain four still images and six videos of pre-pubescent children involved in sexual activity, and he was in the process of downloading new images.

He had two convictions for the American equivalent of false pretences, involving insufficient funds. The accused pled guilty and received a sentence of ten months less a credit for pre-sentence custody and three years’ probation. R. v. Owen (6 September 2011), Winnipeg (Man. Prov. Ct.): The accused was described as being a mature offender whose computer was searched at the border. It was found to contain an undisclosed number of extremely graphic images that constituted child pornography. He had a criminal record and, after some negotiations, pled guilty.

He was sentenced to two years’ incarceration less ten months’ credit for pre-sentence custody on the basis of 1:1. R. v. Lague (G.J.) , 2013 MBQB 32 , 287 Man.R. (2d) 204 : The accused, who was a 50-year-old American, was searched at the border and found to have 32 images and 12 movie files of young, pre-pubescent boys alone, with other boys and with men, engaged in sexual acts including masturbation, fellatio and anal sex.

He also had files with conversations of a sexual nature, including one in which the individual described himself as being 13 years old, although the accused stated that he believed the person to be an adult. The accused had a record in the U.S. for a non-consensual sexual offence for which he had been sentenced to one year incarceration and two years’ probation. He was sentenced to one year incarceration, stated to be at the higher end of the range, with a credit for pre-sentence custody. R. v. Emmerling (29 May 2013), Winnipeg (Man. Prov. Ct.): The accused was a 51-year-old American commercial truck driver.

He was searched at the border and found to have possession of a switchblade knife. A further search disclosed 49,922 images of females, including hundreds of female children between seven and 14. Sixty-four of the images met the definition of child pornography, with one being in the highest category. The accused had two stuffed animals and a children’s movie, which the sentencing judge found would be alluring to young children and significantly increased the risk that he posed and his moral culpability.

The accused pled guilty, was cooperative, lost his employment and had a limited, dated and unrelated criminal record. The accused was sentenced to two years’ incarceration with credit for pre-sentence custody on a 1:1 basis. APPENDIX C Non-Manitoba Sentences Under s. 159 of the Customs Act R. v. Britland (8 September 2005), Ontario: The accused was a 39-year-old American who pled guilty to one count of smuggling and one count of possession of child pornography. He was sentenced to five weeks’ incarceration, being time served, a fine of $1,000 and a sex-offender order. R. v.

Porques and Basanes (8 July 2008), Nova Scotia: The accused were Filipino sailors who were found in possession of 16 images depicting 18 different children, some as young as seven, in various sexual positions. They pled guilty to charges under both the Criminal Code and Customs Act . They pled guilty and were sentenced to 14 days, being time served, and there was a DNA order made. R. v. Tang (23 December 2008), Ontario: The accused was a 28-year-old hearing-impaired Canadian medical student who was found in possession of eight images of child pornography and three images of child erotica.

He received a sentence of one year incarceration and one year probation, a DNA order and registration as a sex offender, and in addition, one day for a conviction under the Customs Act . R. v. Ong (22 June 2012), Newfoundland: The accused was a 28-year-old Filipino sailor who was charged under both the Criminal Code and the Customs Act . He was sentenced to 60 days incarceration. R. v. Mozo (27 October 2010), Newfoundland: The accused was a 33-year-old sailor who was sentenced to one year of incarceration. (See also reasons related to defence Charter motion in R. v.

Mozo (L.F.) (2010), 316 Nfld. & P.E.I.R. 304 .) R. v. Whittaker , (8 December 2010), New Brunswick: The accused was a 40-year-old American who was charged with possession of 75,000 images of child pornography under the Criminal Code and smuggling child pornography under the Customs Act . He had still photos and videos on a computer that depicted children engaged in sexual activity with adults including oral sex and anal and vaginal penetration.

The accused pled guilty, after challenging the search, and was sentenced to 22 months’ incarceration on each offence, to be served concurrently, less credit for pre-sentence custody. There were also a number of ancillary orders under the Criminal Code . (See also reasons related to Charter motion in R. v. Whittaker (D.J.) , 2010 NBPC 32 , 367 N.B.R. (2d) 334 .) R. v. T.M. , 2013 ONSC 3130 (QL) : The accused pled guilty to a total of eight child sexual offences.

He was originally charged with offences that included touching for a sexual purpose, making child pornography, possession of child pornography and smuggling child pornography. He was released and charged with breaching the conditions of his undertaking by being alone with a child under 14 years old and having possession of electronic equipment. Finally, there was a second charge of possession of child pornography. The number of images was described as being not trivial or inconsequential. He had no criminal record and showed remorse.

The accused received a global sentence of six years that included six months for possession of child pornography under the Criminal Code and six months for smuggling child pornography under the Customs Act in relation to one indictment and one year for possession of child pornography under the Criminal Code on another indictment.

R. v. East (25 July 2013), Ontario: The accused was a 24-year-old American who was found in possession of 3,200 images and sevenmovies. He was sentenced to 90 days for possession of child pornography under the Criminal Code, 30 days’ incarceration forsmuggling under the Customs Act (to be served concurrently) and two years’ probation. R v. Bell (28 August 2013), Nova Scotia: The accused was a 37-year-old Canadian cruise musician who was charged with possessionand smuggling related to 70 images and videos of mostly naked boys. He was sentenced to three months’ incarceration. R. v.

Jarrett (24 January 2014), Ontario: The accused was a 43-year-old American who was charged with one count of possession ofchild pornography, one count of possession of a loaded prohibited firearm under the Criminal Code and two counts of non-report ofgoods under the Customs Act. He had 1,253 movies and pictures. He was sentenced to 28 months concurrent on the Criminal Codeoffences and six months concurrent on the Customs Act offences. APPENDIX D Sentences Under s. 163.1(4) of the Criminal Code Accused With No Prior Record R. v.

Batshaw (L.), 2004 MBCA 117, 187 Man.R. (2d) 177: The accused was a 22-year-old student who was charged with havingpossession of 80-100 images of child pornography that included fellatio and sexual intercourse involving very young children with adultmales. Although he had no criminal record, he had been using and viewing child pornography for three or four years. On appeal, theaccused received a 15-month conditional sentence and two years’ probation. R. v. Lea, [2004] O.J.

No. 6040 (QL): The accused was 53 years old and pled guilty to one count of possession of child pornography thatrelated to approximately 10,000 images including anal intercourse and fellatio. He had no criminal record and some mental healthissues. He was sentenced to six months’ incarceration and three years’ probation. R. v. Neilly (R.A.) (2006), (ON CA), 209 O.A.C. 155: The accused was convicted of both possession anddistribution of child pornography. The offence was described as one involving a large volume of material, with the nature of the subjectmatter of the photos being horrific.

The court also referenced the young ages of the children and the length to which the accused wasprepared to go to obtain the material, including surreptitiously taking his own sexually-explicit photographs of children in thecommunity. There is no indication as to whether the accused had a criminal record. He was sentenced to one year incarceration and twoyears’ probation on each offence, to be served concurrently. R. v. Hammond (C.M.), 2009 ABCA 415, 469 A.R. 317: The 61-year-old accused was charged with having possession of 106 videosand 456 pictures that included intercourse and, brutal sexual violence.

The accused had no criminal record and pled guilty, but heshowed a lack of insight and no remorse. On appeal, he was sentenced to one year incarceration and three years’ probation. R. v. W.E., 2010 NLCA 4, 293 Nfld. & P.E.I.R. 52: The accused was a 55-year-old offender with no criminal record. He pled guilty topossession of a “large number” of images and videos of child pornography. On appeal, he was sentenced to 20 months’ incarceration andthree years’ probation. R. v. Johnston (H.E.), 2011 NLCA 56, 311 Nfld. & P.E.I.R. 129: The 72-year-old accused pled guilty to possession of childpornography.

He had been co-operative and was remorseful. His address had been identified in a national police investigation ofinternet protocol addresses through which child pornographic images were shared across Canada. His address was identified over 100times during a six-month period. He was found in possession of 20 videos that depicted pre-teen girls being sexually assaulted by adultmales. On appeal, he was sentenced to ten months’ incarceration and three years’ probation. R. v. Andrukonis (M.), 2012 ABCA 148, 524 A.R. 306: The accused was a 40-year-old male with no criminal record.

He pled guilty toone count of possession of child pornography regarding 42 pictures and 87 videos, the content of which included some naked children,but most showed explicit sexual exploitation of young children including sadistic sexual acts. On appeal, his sentence of 12 months’incarceration and three years’ probation was upheld. R. v. Clayton (D.J.), 2012 ABCA 384, 539 A.R. 326: The accused was a 30-year-old former soldier with no criminal record. Followinga trial, he was convicted of possessing, accessing and distributing child pornography.

There were 4,600 pornographic images thatdepicted all types of sexual activity including vaginal and anal intercourse and the use of restraints. Some of the children were babies. The accused was using two computers and was involved in pornographic discussions. On appeal, the sentence of two years’incarceration for distribution, one year of incarceration for accessing and one year concurrent for possession was upheld. R. v.

Lukat, 2014 ABCA 112 (QL): The accused was a first-time offender who pled guilty to one charge each of possession of childpornography, making child pornography available and possession of a prohibited weapon. The police conducted an internet search ofchild pornography sites which led to the accused. They entered into an on-line chat with the accused during which he shared childpornography images and a video with the police, the latter showing a sexual assault of a six-year old child.

The accused had a total of4,341 images that depicted child pornography and 6,000 images of children that did not meet the criteria of child pornography. He wassentenced to 18 months for the offence of making child pornography available, eight months concurrent for possession of childpornography and one day consecutive for the possession of a prohibited weapon, followed by two years’ probation. APPENDIX E

Sentences Under s. 163.1(4) of the Criminal Code Accused With Prior Record R. v. Missions (W.D.) , 2005 NSCA 82 , 232 N.S.R. (2d) 329 : The accused was a mature man with a teen-aged son. Following a trial, he was convicted of possession of child pornography, being 64 images that included children as young as three or four years old and acts of sexual intercourse, cunnilingus and fellatio. The accused had a prior record for sexual intercourse with a child under 14 years. His sentence of one year incarceration and three years’ probation was upheld on appeal. R. v.

Gauthier (J.S.) , 2008 ABCA 39 , 425 A.R. 267 : The accused was a 42-year-old man who pled guilty to possession of child pornography, being 2,000 images and 100 videos. The content included all manner of sexual activity with pre-pubescent boys and girls including penetration with objects. One video was of the sexual assault of a four-year old girl. The accused had an unrelated criminal record with several minor crimes. His sentence of one year of incarceration and three years’ probation was upheld on appeal. R. v.

Bryant , 2008 ABCA 203 (QL) : The accused was a 21-year-old man who pled guilty to one count of accessing child pornography. There were 46 images of children of various ages. The accused had prior convictions for sexual assault and possession of child pornography and was under a community supervision order for a similar offence at the time of this offence. He was deemed to be a high risk to re-offend. The sentence of 24 months’ incarceration and two years’ probation was upheld on appeal. R. v. Bauer , [2008] O.J.

No. 5982 (QL) ; and 2010 ONCA 331 (QL) : The 34-year-old accused pled guilty at the start of his trial to two counts of possession of child pornography and one count of accessing child pornography which took place in 2004, 2005 and 2008. The 2004 offence related to four images and a movie that included pre-pubescent girls in shackles and chains performing sexual acts on adult males. The 2005 offence involved the accused using two computers which disclosed eight movies of child pornography.

The accused was on bail when he was found in possession of computers and electronics in 2008, in breach of his 2005 bail conditions. Some of the items disclosed pornographic content regarding children. The accused had prior convictions for possession and distribution of child pornography. His sentence of one year on each count of possession and 19 months for accessing child pornography to be served consecutively, was upheld on appeal. R. v.

R.H. , 2012 ONCJ 280 (QL) ; and 2012 ONCA 593 (QL) : The 28-year-old accused pled guilty to one count of possession of child pornography and two counts of making child pornography available. He also pled guilty to two counts of failing to comply with a probation order, as he was on probation as a result of a prior conviction for possession of child pornography when he committed these offences. A police internet investigation found the accused sharing child pornography on the internet. In on-line chats, he was encouraging others to commit violent sexual acts against children and film them.

A search of his computer disclosed 1,000 images and 100 videos of child pornography including full vaginal and anal penetration and bondage involving very young children. He was sentenced to a total of 24 months for the possession and accessing counts and three months consecutive for the two counts of breach of probation.