R v Sinclair, 2022 MBCA 65

Citation: R v Sinclair, 2022 MBCA 65 Date: 20220812 Dockets: AR21-30-09646; AR21-30-09649 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice William J. Burnett Madam Justice Karen I. Simonsen BETWEEN : ) M. S. Bright HER MAJESTY THE QUEEN ) for the Crown ) Appellant/Respondent ) C. L. Mahoney ) for the Accused - and - ) ) Appeals heard: Patrick Sinclair ) April 26, 2022 ) ( Accused ) Respondent/Appellant ) Judgment delivered: ) August 12, 2022 NOTICE OF RESTRICTION ON PUBLICATION : No one may publish, broadcast or transmit any information that could disclose the identity of the victim(

s) or witness(es) (see

section 486.4 of the Criminal Code ). STEEL JA [ 1 ] The accused seeks leave to appeal and appeals his sentence of five years of incarceration on the charges of luring, possession of child pornography, making child pornography, extortion, and distribution of child pornography, arguing that several material errors occurred in the sentencing and that the sentences are demonstrably unfit. [ 2 ] The Crown agrees that errors were committed, warranting appellate intervention, but argues that such intervention is needed to increase, rather than decrease, the sentence.

It seeks a sentence of eight years, submitting that neither the individual sentences nor the total sentence were proportionate to the accused’s high degree of moral blameworthiness or the harm done to the child victims. [ 3 ] The Supreme Court of Canada has made its position clear in R v Friesen , 2020 SCC 9 , as to the need to increase sentences regarding sexual offences against children to reflect society’s condemnation of this behaviour and the recognition of the long- term trauma this type of offence inflicts on its victims.

This Court, as well as other appellate courts across the country, have followed its guidance (see R v JGHW , 2020 MBCA 86 ; R v Galatas , 2020 MBCA 108 ; and R v Alcorn , 2021 MBCA 101 ). [ 4 ] The guidance in Friesen extends to all types of sexual offences against children. Over 20 years ago, in R v Sharpe , 2001 SCC 2 , the Supreme Court highlighted the seriousness of online sexual exploitation of children. However, in the intervening period, sentences have not reflected society’s current understanding of the gravity of online child sexual exploitation offences and their impact on victims.

This case gives us an opportunity to consider Friesen in the context of child pornography and online exploitation. Facts [ 5 ] Over a five-year period, beginning in May 2012, the accused lured children on the internet. He used internet chat and gaming sites to communicate online with female children and ask them to participate in video calls with him on Skype. During those calls, the accused would tell the children to disrobe and expose their breasts, genitals, and anuses. He would instruct them to masturbate

using their hands or other objects. The youngest of these children was 13 years old at the time of the offences. [6] He would surreptitiously capture video and still images of the children engaged in those sexual acts and would savethe files to a folder in his personal computer. He organized the images and videos into folders labelled with each of the children’s namesin his personal computer. He made 112 child pornography images and 52 child pornography videos of four identified children and eightunidentified others.

The accused also extorted a then 17-year-old victim by threatening to send nude images he had of her to her familyand friends and post them online if she did not provide him with more nude images. [7] He ultimately pled guilty to the offences of luring a child to facilitate making child pornography in relation to fourknown victims and eight unknown victims contrary to

section 172.1(1)(

b) of the Criminal Code (the Code), possession of childpornography contrary to

section 163.1(4), making child pornography contrary to

section 163.1(2), extortion contrary to section 346(1),and distribution of child pornography contrary to

section 163.1(3). [8] The accused was on judicial interim release and then on supervised probation for sexual assault on his foster sisterduring this period. The sexual assault occurred sometime between 2010 and 2012 when she was between 11 and 12 years of age. [9] Dr. Jeffrey Waldman prepared two reports relating to the psychological assessment of the accused. As well, a pre-sentence report (PSR) was prepared by probation services. Both the doctor and the author of the pre-sentence report testified at thesentencing hearing.

Sentencing Judge [10] The sentencing judge reviewed the accused’s background, the assessments from two medical professionals and thePSR. He reviewed the general sentencing considerations in the Code, as well as the aggravating and mitigating factors. Heacknowledged that deterrence and denunciation should be given priority in cases of child sexual abuse, which includes online childsexual exploitation. He referred to Friesen. [11] In particular, he considered the accused’s cognitive deficits and the extent to which these deficits contributed to hismoral culpability.

He found that, despite the accused’s “diagnosis, he remain[ed] an individual who possessed a general understandingof the wrongfulness and illegality of his actions as well as the consequences he faced if he were to be caught.” [12] The sentencing judge also considered the accused’s danger of reoffending given that his future plans for living with hisfoster parents were unrealistic and that he did not have the life skills to live independently.

He found that the accused was disinclined topursue treatment and intervention and, even if he were to seek treatment, it might take up to two years before any progress could bemade, if at all. The sentencing judge therefore concluded: “Although it is impossible for me to precisely quantify the overall level ofrisk [the accused] poses, I am satisfied that it is greater than the low risk assessment outlined by Dr.

Waldman and is likely closer to thatdescribed by [the author] in the [PSR].” [13] Although he also found that the accused’s various disorders and Gladue factors (see R v Gladue, (SCC), [1999] 1 SCR 688) acted to temper his overall moral culpability, he concluded that it remained at a level which required ameaningful period of custody. [14] The sentencing judge identified the range of sentences, but, while acknowledging that Friesen had held that priorsentencing ranges for child sexual abuse may no longer be considered proportional to the offences, he concluded that an upwarddeparture from the existing sentencing ranges in the jurisprudence before Friesen was not required. [15] He imposed sentences of 36 months for child luring, 15 months for possessing child pornography, 18 months formaking child pornography, 18 months for extortion and 12 months for distributing child pornography, which amounted to a globalcustodial sentence of eight years and three months.

All of the sentences were to be served consecutively. He then reduced that sentencefor totality to a total of five years by reducing the sentence for child luring to 21 months; possessing child pornography to 15 monthsconcurrent to the sentence of child luring; making child pornography to 15 months; extortion to 12 months; and distribution of childpornography to 12 months as well. [16] The accused appeals, arguing that the sentencing judge focussed on four considerations he incorrectly found to beaggravating factors. These errors, he submits, skewed the sentencing process and contributed to an unfit sentence.

In addition, he arguesthat the sentencing judge erred in determining that all sentences, except for the sentence for possession of child pornography, should beserved consecutively, and he erred in his totality analysis, resulting in an unduly long, aggregate sentence. The accused submits that hehad a significantly lower level of moral culpability than found by the sentencing judge and, as a result, the sentences imposed were notproportional.

He contends that a two-year custodial period would be proportional and a meaningful period of custody in a case like this. [17] The Crown, on the other hand, argued that the sentence was too low because the sentencing judge relied onjurisprudence that pre-dated Friesen. He imposed consecutive sentences for each offence at the bottom end of each range he identifiedand then reduced it further because of totality. The result, the Crown submits, is not proportionate to the accused’s degree ofresponsibility and the seriousness of his offending.

Analysis Standard of Review [18] The standard of review for sentence appeals is well known and is highly deferential. The appellate court must defer tothe sentencing judge’s exercise of their discretion on sentence absent an error in principle or a material misapprehension of evidence thathad an impact on the sentence or the imposition of a sentence which is demonstrably unfit. An error in principle includes an error of law,a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor.

A sentencing judge’s decision toweigh aggravating and mitigating factors in a particular way does not, in itself, permit appellate intervention unless the weighing is

unreasonable (see R v Lacasse , 2015 SCC 64 at paras 49 , 78). [ 19 ] If an error in principle has occurred and has had a material impact on the sentence imposed, then the appellate court need not extend deference to the original sentence. The appellate court can look at the matter from a fresh perspective and impose the sentence that it deems appropriate in the circumstances or, it may find that, notwithstanding the error in principle, the original sentence is still fit and uphold that sentence (see Lacasse at para 42 ; R v PES , 2018 MBCA 124 at paras 13-15 ; and R v Kravchenko , 2020 MBCA 30 ). [ 20 ] Both the Crown and the accused agree that the conviction under

section 172.1(1) (

b) of the Code (for luring a child under 16 years to facilitate making child pornography) be set aside and that a conviction for luring a child under 18 years to facilitate making child pornography pursuant to

section 172.1(1) (

a) be substituted. The accused pled guilty to luring a child for the purpose of facilitating the commission of the offence of making child pornography under

section 163.1(2) of the Code .

Section 163.1(2) (making child pornography) is not an enumerated offence under

section 172.1(1) (b). However, it is an enumerated offence under

section 172.1(1) (

a) of the Code . I agree with the parties and order that a substituted verdict, as requested, be entered on this charge. Consideration of Aggravating and Mitigating Factors [ 21 ] The accused argues that the sentencing judge focussed on several considerations he referred to incorrectly as aggravating factors. These errors, alone and in conjunction with one another, skewed the sentencing process and contributed to an unfit sentence. [ 22 ]

Section 718.2 of the Code is part of a detailed, intricate and comprehensive sentencing scheme introduced by Parliament in 1995 (see R v Larche , 2006 SCC 56 at para 34 ). [ 23 ]

Section 718.2(

a) states: Other sentencing principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing . . . . . . [ 24 ] Strictly speaking, mitigating and aggravating factors are only those that are “related to the gravity of the offence or the moral blameworthiness of the offender” ( R v Fice , 2005 SCC 32 at para 22 ). The factor in question must be relevant to the commission of the offence in question in some way.

However, courts have treated these concepts expansively to include factors that do not fit that narrow conception, but do affect sentence, such as time spent in harsh pre-trial conditions and the impact of collateral consequences. 1. Age of the Victims [ 25 ] In his reasons for sentence, the sentencing judge made the following comment on aggravating factors: . . . One, the victims were children as defined by

Section 718.2 (a)(ii.1) of the Criminal Code , and [the accused] was aware of their ages . . .. . . . [ 26 ] The accused argues that the age of the victims was an essential element of the offences of which he was convicted and, therefore, it cannot do double duty as an aggravating factor on sentence (see Lacasse at para 146 ).

Similarly, the fact that the accused knew that the victims were children was also an essential element in proving the mens rea for those offences where children were victims. [ 27 ] Only the extortion charge did not include a child victim and, therefore, it was an error if the sentencing judge’s comment “was aware of their ages” was intended to apply to this charge.

However, later in his reasons, the sentencing judge held as an aggravating factor that the accused “also extorted his adult victim . . . who was 18 years old at the time, by threatening to send images of her to her family as well as threatening to post them online”. The accused submits that the act of extortion described was a charge that he pled guilty to and was sentenced on.

The fact that the actus reus of extortion took place in the context of that extortion charge, as is required for the charge to be made out, cannot then be regarded as an aggravating factor. [ 28 ] The Crown counters that the sentencing judge was statutorily obliged to consider that the victims were under the age of 18 as an aggravating factor, and he did so. The fact that the accused was engaged in serious sexual abuse of victims, whose young ages he was aware of, was also an appropriate aggravating factor which warranted consideration.

[29] When a victim of a sexual offence is a child under 18 years,

section 718.2(a)(ii.1) of the Code requires a sentencingjudge to take it into account as an aggravating factor: Other sentencing principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to theoffence or the offender, and, without limiting the generality of the foregoing, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, shall be deemed to be [an] aggravating circumstanc[e]. [30] This has proven to be a controversial area with divergent opinions, especially at the trial level.

See, for example, R vSSS, 2018 BCSC 2470, where the Court found it would be an error to consider the age of the victim an aggravating factor where it is alsoan essential element of the offence. But in R v Akumu & Boima, 2017 BCSC 1051, the Court came to an opposite conclusion. See alsoAlcorn, where the Court referred to the victim’s age as an aggravating factor in sentencing under

section 718.2(a)(ii.1) of the Code, eventhough the age of the victim was an essential element of the offence of purchasing the sexual services of a child (see para 62). [31] In R v SCW, 2019 BCCA 405, in a similar manner to this case, the accused cited Lacasse and argued that using anessential element of the offence as a specific aggravating factor amounted to an impermissible form of double counting. The BritishColumbia Court of Appeal distinguished between statutory and common law aggravating factors. [32] The Court stated (at para 36): . . .

If sentencing is to be an individualised process and sentences are to be proportionate to the gravity to the offence, the specificcircumstances of each offence must be taken into account at sentencing, even where those circumstances overlap with the elements ofthe offence. The egregiousness of the sexual offence against a child increases as the age of the child decreases. Taking into account theage of the victim is an appropriate consideration of the specific facts of the individual offence. [33] The Ontario Court of Appeal addressed the issue directly in R v Tejeda-Rosario, 2010 ONCA 367.

There, the appellantalso argued that the sentencing judge erred in treating a breach of trust during the course of sexual exploitation as an aggravating factorbecause it was an element of the offence. The Court stated (at para 13): This court R v Gaukrodger, (ON CA), [2006] O.J. No. 3614 has expressly rejected the theory that the facts thatconstitute the essential elements of an offence are somehow exhausted and are not available for consideration at the time of sentencing.

In this case, the nature of the abuse of trust was the defining aggravating factor and should have been given substantial weight by the trialjudge in imposing sentence. See also R v BS, 2019 ONCA 72 at para 12; and R v Rancourt, 2020 ONCA 64 at para 50. [34] As the Supreme Court noted in Friesen at para 90, the age of the victim is a consideration, not only as an aggravatingfactor, but in the assessment of the offender’s level of moral blameworthiness, which was a significant issue in dispute in this case.

Thereis a difference between the consideration of age as relevant to assessing the offender’s guilt and consideration of the offender’s level ofmoral blameworthiness (see R v Nahanee, 2021 BCCA 13 at para 12, leave to appeal to SCC granted on other grounds, 39599 (8 July2021),). [35] As the Court in R v CD, 2021 NUCA 21 explained (at para 38): When the trial judge described the age of the complainant as “aggravating”, and referred to s. 718.2(a)(ii.1), he was merely speaking ofthe “gravity of the offence” within the proportionality analysis.

Friesen at paras. 134-35 describes the age of a sexual assault victim as a“significant aggravating factor” even in a s. 151 context, in this sense of age being an “indicia of gravity” in the proportionality analysis.

Circumstances which impact the gravity of the offence or the degree of responsibility of the offender are clearly circumstances relating to the offence or the offender, not simply elements of the offence. . . . [ 36 ] Aggravating factors can be aspects of the offence that exceed the basic fulfillment of its elements. The facts which constitute essential elements of an offence do not lose their relevance on sentencing.

The extent to which the facts that establish the essential elements of the offence can increase or decrease the sentence imposed will depend on the specifics of those facts considered in the context of the entire case. So, in R v CGJ , 2019 BCPC 252 , the Court noted the significant age differences between the complainant and the accused when considering the circumstances regarding the overall gravity of the offence (see para 202).

See also R v JAS , 2019 ABCA 376 , where the Court stated: “The reality is that the manifestations of the elements of the offence can be aggravating or mitigating” (at para 19). [ 37 ] The accused also contends that the sentencing judge ought not to have considered his knowledge of the victims’ ages for the same reason. However, actual knowledge of the age of the victims is not an element of any of the offences to which the accused pled guilty. With respect to luring, the Crown need only prove that the accused knew or believed that the victim was under the relevant age.

With respect to the child pornography offences, the Crown must only prove that the victims depicted in the images were under the age of 18 or depicted to be under 18. There is no requirement for the Crown to prove that the accused was aware of the actual ages of the victims depicted in the offending materials. The fact that the accused was engaged in serious sexual abuse of victims, whose young ages he was aware of (something which the Crown is not required to prove) was also an appropriate aggravating factor which warranted consideration. 2.

Nazi Material [ 38 ] In the sentencing judge’s decision, another aggravating factor listed was that “police located Nazi material and other extremist materials in [the accused’s] room and on his computer, and on at least one occasion he described [himself] to one of the victims as being a Nazi, hurting animals, and punching girls”. The accused submits that this description had nothing to do with the offences for which he was being sentenced.

While penalties will be imposed on those who break the law as a result of their beliefs, offenders are not to be sentenced on their beliefs, as repugnant as those beliefs may be (see R v Leach , 2019 BCCA 451 at para 87 ). [ 39 ] While the Crown concedes that it was not specifically an aggravating factor, it does not agree that its inclusion within a long list of other aggravating factors inappropriately resulted in a sentence that was unreasonably high. Indeed, the Crown submits it formed a relevant part of the narrative which described the accused’s offending behaviour.

It was appropriate to consider since it related to the accused’s propensity for violence and his future risk. [ 40 ] In R v Ruizfuentes , 2010 MBCA 90 at para 7 , this Court confirmed that considering an irrelevant factor is an error in principle. However, no error occurs unless the sentence was materially impacted as a result of considering such a factor. [ 41 ] The sentencing judge’s reference to the accused’s Nazi beliefs was made in the context of considering several other legitimate aggravating factors.

Given the number and type of aggravating circumstances present in this case, the accused’s racist beliefs cannot reasonably be supposed to have played a material role in the imposition of the sentence. In my view, even if it was an error for the sentencing judge to refer to it specifically as an aggravating factor, he referred to it in a peripheral manner when assessing the accused’s propensity for violence and future risk, which was relevant to the overall assessment that was required to be made. He mentioned the accused’s self-proclaimed violence towards animals and women in the same sentence.

In my view, it did not have a material impact on the sentence. 3.

Use of Criminal Record [ 42 ] While reviewing the list of aggravating factors, the sentencing judge stated, “Finally, [the accused] has a prior criminal history of sexual violence given that on October 15th of 2015 he pled guilty to having sexually assaulted a 12 year [old] foster sister between 2011 and 2012.” The accused submits that it is an error to punish a person for their past crimes by using their criminal history in effect to impose a double punishment on that person. [ 43 ] An individual’s criminal record cannot be used to increase sentence since that would be to punish the accused twice.

However, it can be used to assess future behaviour and to assess the accused’s prospects for rehabilitation and his ongoing risk to reoffend. Consideration of a prior criminal record can assist a judge in determining the normative character of that accused.

When that record shows repeated related criminal behaviour, it may be viewed as an aggravating factor (thereby causing the sentence to be increased within the appropriate range of sentences) in order to address specific deterrence, protection of society and/or the prospects of rehabilitation (see R v Wright , 2010 MBCA 80 at para 16 ). [ 44 ] In this case, the sentencing judge was entitled to consider that the accused’s criminal record was related in that it demonstrated an ongoing pattern of sexually violating children. Moreover, the accused committed the offences while he was on bail and then on probation.

Consecutive and Concurrent Sentences [ 45 ] The offence date of the distribution of child pornography charge triggered

section 718.3(7) of the Code , which requires that the accused’s sentence for this charge be served consecutively to any other prison sentence he received for a sexual offence against a child. This provision came into effect in 2015 (see the Tougher Penalties for Child Predators Act , SC 2015, c 23 at

section 17). Because the accused’s offences occurred between 2012 and 2017, and, therefore, included a period which pre-dated those provisions, it was open to the sentencing judge to exercise his discretion to impose a concurrent sentence. [ 46 ] However, the sentencing judge opted to impose consecutive sentences on all five offences. In doing so, he found that these were “separate and distinct acts involving separate and distinct victims over an extended period of time resulting in separate and

distinct harm to the victims”. It was only when considering totality that the sentencing judge concluded that the charge of possession of child pornography could be served concurrently to the luring charge. [ 47 ] The accused argues that the sentencing judge erred in determining that all sentences, but for the sentence for the offence of possession of child pornography, should be served consecutively, and that he instead should have ordered them to be served concurrently prior to consideration of totality given the interrelatedness of the offences.

He argues that, despite the various activities and the involvement of multiple children, the offences were part of a single, continuous criminal transaction. [ 48 ] Concurrent sentences are rarely appropriate where there are separate victims of sexual abuse, each of whom has suffered an individual harm (see R v DC , 2016 MBCA 49 at para 43 ). The offences were not committed during “a sustained and relatively short period of time” ( R v Arbuthnot , 2009 MBCA 106 at para 24 ), but over a period of five years.

The accused was able to commit numerous offences against multiple child victims because he lured them over the internet. The making and possession of child pornography of the children he was luring—organized and categorized into folders with each of the children’s names—constituted additional offences that he engaged in after, and in addition to, luring the children. Making child pornography is a distinct offence which stands on its own, and which addresses a separate and distinct harm to the victim and to society (see R v CMM , 2012 MBQB 141 ).

The accused engaged in separate and distinct acts involving multiple victims over an extended period, resulting in separate and distinct harm to the victims. Consecutive sentences were appropriate and warranted. Demonstrably Unfit [ 49 ] As well, the accused submits that the sentence is demonstrably unfit because it does not give due consideration to the principle of proportionality and the moral culpability of the offender. The level of moral culpability of the accused was an actively contested issue at sentencing and remains an actively contested issue on appeal.

To what extent did the accused’s cognitive deficits affect his moral blameworthiness? [ 50 ] The accused argues that his moral culpability was affected by his cognitive deficits which included diagnoses of intellectual disability disorder, autism spectrum disorder and possible fetal alcohol spectrum disorder (FASD).

Given these deficits, it is submitted that the sentencing judge failed to give proper effect to these considerations in his analysis of the accused’s moral culpability as it relates to proportionality. [ 51 ] In particular, the accused takes issue with the sentencing judge’s finding that “despite [the accused’s] diagnos[e]s he remains an individual who possessed a general understanding of the wrongfulness and illegality of his actions as well as the consequences he faced if he were to be caught.” The accused argues that this is inconsistent with the significant body of evidence before the Court, including the evidence of his background, life experiences, and that of Dr.

Waldman’s evidence, both in writing and oral testimony. [ 52 ] Dr. Waldman testified that, because of his cognitive deficits, the accused did not understand that his behaviour was wrong and did not perceive himself as having a problem. As well, he also said that the accused could be “easily managed” in the community. [ 53 ] The sentencing judge set out detailed reasons for rejecting Dr. Waldman’s opinion. I believe he was correct in doing so. [ 54 ] Aside from reviewing the relevant material and meeting with the accused’s foster mother for approximately 30 minutes, Dr.

Waldman met with the accused for one hour before writing his first report. He assessed the accused’s risk to reoffend using assessment tools that were not designed to assess risk for child pornography for online offenders. He conceded that his risk assessment was premised on the accused being subject to stringent, daily supervision in the community by someone other than his foster parents, and that, without this, the accused’s risk to reoffend would be higher. None of the supports he identified as being necessary were in place or had been arranged or accessed in any way.

The accused’s own comments in his online chats indicate that he did understand that what he was doing was wrong and criminal, something that Dr. Waldman agreed with during his cross-examination, contrary to the conclusions in his supplementary report. [ 55 ] Although the sentencing judge found that the assessment tool used in the PSR might not give an accurate representation for an individual with various cognitive deficits, he also found that the accused’s risk was closer to the high risk to reoffend assessment as set out in the PSR than the assessment contained in Dr. Waldman’s supplementary report.

The PSR prepared by probation services concluded that the accused showed little remorse toward his victims and was at a high risk to reoffend. [ 56 ] Indeed, the evidence confirmed that the accused employed a degree of sophistication in manipulating the victims and that he understood exactly what he was doing and the seriousness of his offending. For example, he told one victim that he would distribute the images online to force her to do what he wanted. He made public online her full name and all of her social media contact information.

He named and catalogued some of the images and videos, saving them in individualized folders, which speaks to a certain level of thought and sophistication. His threats to one of the victims were specific, calculated, and detailed and showed insight, planning and forethought. All these factors lead to the conclusion that the accused’s moral culpability was high. [ 57 ] As well, the accused represents a risk to public safety at the present time. Dr. Waldman testified that he needed to be monitored 24 hours a day and moreover, the accused was disinterested in seeking treatment. Even if he did seek treatment, Dr.

Waldman opined that it might take up to two years for progress to be made, if any. Further, Dr. Waldman testified that the accused did not perceive himself as “having a problem” and that this had led to an “unwillingness to meet with . . . treatment providers”. [ 58 ] In Sharpe , over 20 years ago, the Supreme Court described the impact of child pornography offences on victims (at para 158): The very existence of child pornography . . . is inherently harmful to children and to society. . . . The harm of child pornography is

inherent because degrading, dehumanizing, and objectifying depictions of children, by their very existence, undermine the Charter rights [ Canadian Charter of Rights and Freedoms ] of children . . .. [ 59 ] Ten years later, Moldaver JA (as he then was), for the Court in R v Woodward , 2011 ONCA 610 , emphasized the need for significant sentences to denounce and deter sexual offences against children, specifically online luring (at para 75-76): Adult predators who seduce and violate young children must face the prospect of a significant penitentiary term . . .. . . . [W]hen trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender’s conduct and the life-altering consequences that can and often do flow from it.

While the effects of a conviction on the offender and the offender’s prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence and the need to separate sexual predators from society for society’s well-being and the well-being of our children must take precedence. [ 60 ] And then, 10 years after that, in Friesen , the Supreme Court directed appellate courts and sentencing judges to bring “sentencing law into line with society’s contemporary understanding of the nature and gravity of sexual violence against children” (at para 50).

This is especially relevant with respect to social media. As the Supreme Court observed, the internet has opened a new window into easy access to children who can and do communicate with predators directly, “especially through child luring” (at para 94). Such easy access is apparent in this case, where the accused was able to access children from across the United States unimpeded. [ 61 ] Cases that pre-date Friesen should be approached with caution since they may not reflect the change in jurisprudence (see, for example, R v Lemay , 2020 ABCA 365 ; and R v RJH , 2021 BCCA 54 at para 20 ).

In this case, the sentencing judge relied primarily on ranges for each offence based on cases that almost entirely pre-dated Friesen . However, in his conclusion, after considering Friesen , the sentencing judge determined that an upward departure from prior sentencing precedents was not required. [ 62 ] So, for example, with respect to the charge of luring to facilitate the making of child pornography, the range identified by the sentencing judge was between one and two years per offence, normally involving one victim. He imposed a 36-month sentence for four victims.

He then reduced that sentence to 21 months for totality, just within the range he identified for one victim. However, years ago, in Woodward , the Ontario Court of Appeal identified a range of three to five years for the offence of luring, noting that the offence of luring has become a pervasive social problem.

More recently, the Court in R v Moolla , 2021 ONSC 3702 , confirmed that the combined effect of Woodward and Friesen resulted in an appropriate range of three to five years for internet child sex luring. [ 63 ] With respect to the distribution of child pornography and making child pornography, while the accused did not make the victim’s image widely available on the internet, he distributed it to her and threatened to distribute it in order to extort her into complying with his demands.

The image with all of the victim’s social media contact information and a Nazi symbol was designed to humiliate her and to allow others to easily locate her online. The circumstances surrounding the distribution are egregious and disturbing. The accused’s callous attitude in the chats was indicative of a troubling degree of enjoyment out of the interaction. [ 64 ] This accused had a significant collection of child pornography images and videos of 12 different children in his possession and the sentencing judge imposed a sentence of 15 months.

The sentencing judge identified a range of between four months to two years for possession of child pornography. [ 65 ] In R v Andrukonis , 2012 ABCA 148 , the Alberta Court of Appeal articulated the inherent harm in possession of child pornography and the seriousness of this offence (at paras 29, 31): . . . The unvarnished truth is this: possession of child pornography is itself child sexual abuse.

To fail to recognize that this is so improperly diminishes the gravity of this offence. . . . [O]ffenders convicted of possession of child pornography can expect to be sentenced to jail and not for terms regarded as inconsequential. This is as it should be. [ 66 ] The sentencing judge identified a range of one to three years for making child pornography and one to four years for distribution of child pornography. He then imposed the sentences of 18 months and 12 months respectively, even prior to a consideration for totality.

However, in R v GJM , 2015 MBCA 103 at para 15 , this Court upheld a three-year sentence for making child pornography where the offender possessed images he made for his own personal use, which he did not intend to distribute. Mainella JA held (at para 15): . . . Had the accused commissioned or encouraged children to perform sexual acts or had he intended to show or distribute the material

made to others, or actually done so, his blameworthiness would have been greater and the resulting sentence for making child pornography would be in the mid to upper single digits [citations omitted]. [ 67 ] In R v McFarlane , 2018 MBCA 48 , this Court identified a starting point of two years’ imprisonment for the offence of extortion where the victim is an adult, even for a first-time offender. When discussing the crime of “sextortion” (at para 4), this Court noted that the crime is one where “it is difficult to hold such offenders accountable because the crime is remotely committed” (at para 19).

While referring to McFarlane , the sentencing judge imposed a sentence of 18 months, without an explanation as to why the accused, who was not a first offender with respect to sexual offences, should receive a lower sentence than the starting point. [ 68 ] I am well aware that ranges are intended as guidelines only and not straitjackets (see R v Nasogaluak , 2010 SCC 6 ). Each case has a multitude of individual factors that must be weighed. A particular combination of aggravating and mitigating factors may call for a sentence different than any starting point or outside any range.

However, Friesen pointed out (at para 114 ): Nonetheless, it is incumbent on us to provide an overall message that is clear . . .. That message is that mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. . . . [ 69 ] All of the issues that I have mentioned above lead me to the conclusion that the total sentence of five years is demonstrably unfit.

The sentencing judge made errors in principle in his assessment of proportionality, which impacted the sentence. Application of the relevant objectives and principles of sentencing, in light of the directions made in Friesen , called for a significantly higher sentence in these circumstances (see Alcorn at para 8 ). Totality [ 70 ] The accused received a total custodial sentence of 99 months’ incarceration reduced to 60 months for totality, less credit for time served on a 1.5:1 basis. [ 71 ] Both the accused and the Crown agree that the sentencing judge erred with respect to his totality analysis.

However, they disagree as to the way the error occurred and the result. [ 72 ] In considering the issue of totality, the sentencing judge reviewed the five factors listed in R v SADF , 2021 MBCA 22 at para 41 , which would assist a court in determining what may constitute an unduly long or harsh sentence. [ 73 ] The accused maintains that the sentencing judge erred in his totality analysis, resulting in an unduly long aggregate sentence that was crushing for him.

His argument focusses primarily on the first factor set out by this Court in SADF at paras 40-41 , namely, the length of the combined sentence as compared to the sentence for the most serious of the individual offences that he committed. This was but one factor to consider in the assessment of totality. Importantly, the totality principle is premised on the imposition of a properly calculated sentence at the outset. The judge must first arrive at an appropriate sentence for each offence before considering a reduction for totality (see R v Sidwell (KA) , 2015 MBCA 56 at para 31 ).

Instead, the ranges identified by the sentencing judge for luring were inordinately low, given the ranges identified in Woodward and Moolla . The other offences for which the accused were sentenced were extremely serious, if not equally serious to the luring charge. The accused was not entitled to a free ride with respect to those offences (see R v Wozny , 2010 MBCA 115 at paras 44 , 65). [ 74 ] Moreover, a reduction for totality is not automatic. Rather, it is a “last look” to ensure that the cumulative sentence does not exceed the offender’s overall culpability.

It requires consideration of the gravity of the offences, the moral blameworthiness of the offender and the harm done to the victims. The higher the degree of moral culpability, the less likely the sentence will be reduced. Conclusion [ 75 ] The internet is a medium in which adults can engage in anonymous, low visibility and repeated contact with potentially vulnerable children.

It can be a fertile breeding ground for the grooming and preparation associated with the sexual exploitation of children by adults (see R v Alicandro , 2009 ONCA 133 at para 36 ). [ 76 ] In the last decade, online child exploitation has exploded.

In Canada, police-reported child luring incidents more than doubled between 2010 and 2017 and police-reported child pornography incidents more than tripled (see Canada, Department of Justice Research and Statistics Division, Just Facts: Sexual Violations against Children and Child Pornography , (March 2019) online: < www.justice.gc.ca/eng/rp- pr/jr/jf- pf/2019/docs/mar02.pdf> (date accessed 4 August 2022), as cited in Friesen at para 46 ). [ 77 ] The cognitive deficits of the accused in this case were certainly factors that the Court had to take into account.

However, the deficits that the accused has and the impact that they have on the sentence imposed are vastly outweighed by the need to protect the public and keep the public safe. [ 78 ] While the sentencing judge held that a meaningful period of custody was required despite the accused’s cognitive deficits and Gladue factors, the sentences imposed were not proportionate. The principle of proportionality is central to Canadian sentencing (see Friesen at para 30 ).

This principle is based upon the fundamental notion that the degree of punishment must reflect the seriousness of the offence and the moral blameworthiness of the offender (see Sidwell at para 15). The seriousness of the offence will change over time as society’s perception of the offences changes. Given our present understanding of the seriousness of child sexual

offences and, in particular, online child sexual exploitation, the sentence imposed failed to properly reflect the accused’s high level of moral culpability, the seriousness of his offending behaviour and, most importantly, his risk to the public. A five-year sentence failed to appropriately hold the accused to account. I agree with the Crown that an eight-year sentence is more in keeping with the accused’s moral culpability. [ 79 ] The appeal as to the substitution of

section 172.1(1)(

a) for

section 172.1(1)(

b) is allowed. The accused’s appeal is dismissed. The Crown’s appeal as to sentence is allowed.

The accused’s sentence of five years’ incarceration will be varied and one of eight years will be substituted as follows: • Child luring—five years reduced to three and one-half years for totality; • Possession of child pornography—two and one-half years consecutive to the child luring sentence, reduced to two and one-half years concurrent for totality; • Making child pornography—three years consecutive to the possession of child pornography sentence, reduced to one and one- half years consecutive for totality; • Extortion—two years consecutive to the making child pornography sentence, reduced to one year consecutive for totality; • Distributing child pornography—three years consecutive to the extortion sentence, reduced to two years consecutive.

JA I agree: JA I agree: JA