R v Chicoine, 2019 SKCA 104

Restriction on Publication An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainants shall not be published. Court of Appeal for Saskatchewan Docket: CACR3045 Citation: R v Chicoine , 2019 SKCA 104 Date: 2019-10-16 Between: Her Majesty the Queen Appellant And Philip Michael Chicoine Respondent Before: Jackson, Whitmore, Ryan-Froslie, Schwann and Barrington-Foote JJ.A. Disposition: Appeal allowed in part Written reasons by: The Honourable Madam Justice Ryan-Froslie In concurrence: The Honourable Madam Justice Jackson The Honourable Mr.

Justice Whitmore The Honourable Madam Justice Schwann The Honourable Mr. Justice Barrington-Foote On Appeal From: 2017 SKPC 87 , Saskatoon Appeal Heard: December 6, 2018 Counsel: W. Dean Sinclair, Q.C. for the Appellant Blaine R. Beaven for the Respondent Ryan-Froslie J.A. I. Introduction [ 1 ] The Crown seeks leave to appeal and appeals the sentence imposed in Provincial Court on Philip Chicoine for 40 sexual offences committed against children. Mr. Chicoine was sentenced to 12 years of incarceration less remand time. A number of ancillary orders were also made.

With respect to those ancillary orders, the Crown only takes issue with the term of the prohibition order granted pursuant to s. 161 of the Criminal Code , which restricts Mr. Chicoine’s contact with children. [ 2 ] The Crown contends the sentencing judge erred in principle and that those errors impacted the sentence imposed. It also contends the sentence, itself, was demonstrably unfit. Further, it takes the position that the s. 161 prohibition order should have been imposed for life as opposed to ten years. [ 3 ] I would grant leave to appeal.

For the reasons set out herein, I would allow the appeal with respect to the length of incarceration, but not with respect to the s. 161 order. II. Background [ 4 ] Mr. Chicoine pled guilty to 40 sexual offences against children. Those offences as set out in the Criminal Code can be summarized as follows: (

a) one count of possession of child pornography (s. 163.1(4)); (

b) one count of accessing child pornography (s. 163.1(4.1)); (

c) fourteen counts of distributing child pornography (s. 163.1(3)); (

d) one count of making child pornography (s. 163.1(2)); (

e) seven counts of luring (ss. 172.1(1)(

a) and (b)); (

f) five counts of making sexually-explicit material available to persons under the age of 18 (s. 171.1(1)(a)); (

g) three counts of agreeing by means of telecommunication to commit a sexual offence against a child, i.e., making child pornography (s. 172.2(1)(a));

(

h) two counts of agreeing by means of telecommunication to commit a sexual offence against a child, i.e., sexual assault (s. 172.2(1)(b)); (

i) four counts of conspiring to make child pornography (s. 465(1)(c)); and (

j) two counts of conspiring to sexually assault a child (s. 465(1)(c)). [ 5 ] To determine whether the sentence imposed was a fit one, it is necessary, at least in general terms, to describe the circumstances of those offences. [ 6 ] The offences were committed over a span of approximately six years, from January 7, 2011, to March 8, 2017, though, as pointed out by the sentencing judge, the offences occurred primarily in 2011 and between 2014 and 2017. [ 7 ] Given the wide range of offences committed by Mr. Chicoine and their nature, it is impossible to know how many children were victimized by his actions.

While there were identifiable victims of the luring offences and of those offences involving agreements or conspiracies to create child pornography or sexually assault a child, countless other children were victimized by Mr. Chicoine’s accessing, possessing and distributing child pornography. Mr. Chicoine has contributed to the creation of a market for child pornography, including “hurtcore pornography” involving the sexual abuse, bondage, torture and mutilation of children. Each time a pornographic image or video is viewed or distributed, the child who is the subject of that image or video is re-victimized.

It is an ongoing, never-ending cycle of abuse with a worldwide audience. [ 8 ] Mr. Chicoine’s luring offences involved six different children who resided in Australia, the Philippines, the United States and Canada. The children ranged in age from 9 to 14 years. Mr. Chicoine sent all of the children sexually explicit material, including a video in which he ejaculated into his own mouth. He persuaded five of the six children to send him sexually-explicit pictures of themselves and traded some of those pictures online. The sentencing judge described the luring offences at paragraphs 7 to 9 of her judgment: [7] Mr.

Chicoine also communicated with children directly, giving rise to the charges of luring a child and making available sexually explicit material to a child. Specifically, he communicated with children as young as 9 years old, sending them images of his erect penis, and asking them to make and/or send him child pornography. Over a period of approximately six months, Mr. Chicoine sent 14 year old J.C. sexually explicit images of himself, and violent and sexually graphic chat messages. He asked her to send him pictures of her vagina and to give his Viber account to her classmates.

He also sent her money in exchange for child pornography. J.C. sent Mr. Chicoine child pornography, including images of her six year old sister’s vagina. In the case of M., Mr. Chicoine again sent money in exchange for child pornography, and asked for his Viber account to be sent to other little girls. [8] In the case of J.T., Mr. Chicoine sent sexually explicit material, and J.T. sent pornographic images in return. While the communication lasted for only a brief period of time, Mr. Chicoine attempted to meet with J.T. in person. [ 9 ] In the cases of K., S., and A.H., Mr.

Chicoine communicated with the child victims over a period of either several days or just over a month, sending them sexually explicit images of himself, and asking them to send him images in return. He received images from K. and A.H. [9] The offences of conspiring and agreeing through means of telecommunication to sexually assault children and create child pornography involved at least 15 children resident in Romania and the Philippines. Mr.

Chicoine entered into agreements with adult women in those countries to provide images of the children’s genitalia and anuses and to provide pre-recorded videos of the sexual abuse of children, including digital penetration and oral sex. He also paid to participate in the livestreaming of the real-time sexual abuse of children, which he, himself, orchestrated and directed. This included one Filipino woman performing oral sex on a 2- to 3-year-old male child and a Romanian woman performing oral sex on a 10- to 18-month-old female child. Mr.

Chicoine understood most of the women he paid to sexually abuse children were the mothers of those children. [ 10 ] Mr. Chicoine paid more than $20,000 to women in Romania and the Philippines for the real-time livestreaming of sexual abuse. This financial aspect of Mr. Chicoine’s offending is of particular concern as it creates a new type of market for child sexual abuse streamed online. It exploits children who live in poverty and reduces them to mere commodities to be bought or sold. The market is worldwide and no child is safe. [ 11 ] Mr.

Chicoine had a large child pornography collection consisting of 10,126 images and videos. The collection contained 4,132 unique images of child pornography and 582 unique videos. Corporal Clarke, an experienced internet child exploitation investigator and instructor, testified that although Mr. Chicoine’s collection was not the largest he had encountered, it was in fact the worst he had seen in terms of its violent and graphic content. A quarter of the collection contained “hurtcore pornography” where children, including babies and toddlers, were subjected to bondage, torture and mutilation.

Twenty-five percent of the victims in Mr. Chicoine’s pornography collection were under 3 years of age. Given the details provided by Corporal Clarke, Mr. Chicoine’s pornography collection can only be described as vile and dehumanizing. [ 12 ] Mr. Chicoine accessed websites frequented by like-minded offenders. There, he found a whole community of people to talk to and with whom he could share his fantasies and trade his pornography. Corporal Clarke described these websites as emboldening and empowering individuals such as Mr. Chicoine to seek out more material. [ 13 ] Mr.

Chicoine distributed child pornography from his collection, including images he had made, to at least 14 different individuals or groups. In doing so, he utilized a number of internet programs. III. The sentencing judge’s decision

[ 14 ] The Crown acknowledges the sentencing judge was faced with a very difficult task. She was expected to impose a fit and proportionate sentence for 40 different crimes involving countless victims. Many of the offences were punishable by mandatory minimum sentences of imprisonment. Further, the Criminal Code required that some of the sentences be served consecutive to other sentences. [ 15 ] The sentencing judge began her analysis by considering Mr. Chicoine’s personal circumstances. She noted he was 28 years of age at the time of sentencing with a loving and supportive family. As a child, Mr.

Chicoine had often been “picked on”. Mr. Chicoine suffers from a learning disability and struggled in school. He displayed potential behavioural and emotional difficulties and was treated for Attention Deficit Disorder. Mr. Chicoine never married. He suffered from anxiety in social settings and largely spent his time alone. At the time of the offences he lived with his parents. Mr. Chicoine was gainfully employed from 2009 until his arrest in 2017. His pre- sentence report assessed him as being in the “moderate to high risk category for re-offending in a sexual manner”. [ 16 ] The sentencing judge found Mr.

Chicoine was genuinely remorseful. He pled guilty early in the process and co-operated with the police investigation. Mr. Chicoine indicated he was amenable to sex offender treatment. [ 17 ] The sentencing judge recognized Mr. Chicoine’s personal circumstances formed only part of the sentencing process and that her decision had to be guided by the principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code .

She correctly identified the fundamental principle of sentencing as being that of proportionality: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. She assessed the gravity of Mr. Chicoine’s offending as “very serious” (at para 22) and concluded he bore a “very high” degree of responsibility for it (at para 28). The sentencing judge also correctly noted denunciation and deterrence were the primary sentencing objectives applicable to Mr. Chicoine, whose offences involved the abuse of children.

While the sentencing judge concluded “[a] lengthy period of incarceration [was] clearly warranted” (at para 29), she went on to state: [30] Having said that, the sentence should also further the objective of rehabilitating the offender. This is an objective that must be given some emphasis on the particular facts of this case as Mr.

Chicoine is a relatively young man with strong family support, no prior criminal record, and a willingness to engage in treatment. [ 18 ] The sentencing judge set out, at paragraphs 32 and 33 of her judgment, what she considered to be the relevant aggravating and mitigating factors with respect to Mr. Chicoine’s offending. She identified the aggravating factors as: (

i) the production and distribution of child pornography; (ii) Mr. Chicoine’s child pornography collection was large; (iii) the nature of the collection, which included a significant portion of violent material depicting the torture and bondage of children; (iv) Mr. Chicoine was assessed as being in the moderate-to-high risk category for committing another sexual offence; (

v) Mr. Chicoine had purchased child pornography, thereby contributing to the sexual victimization of children for profit; and (vi) Mr. Chicoine’s actions had a significant negative impact on an immeasurable number of child victims. [ 19 ] The sentencing judge identified the mitigating factors as: (

i) Mr. Chicoine’s relative youth – he was between the ages of 21 and 27 when the offences were committed; (ii) Mr. Chicoine’s otherwise good character; (iii) the entering of guilty pleas at the earliest opportunity; (iv) Mr. Chicoine’s genuine remorse; (

v) Mr. Chicoine’s willingness to undergo treatment and counselling; and (vi) that Mr. Chicoine had suffered from his crimes knowing his conduct had devastated his family. [1] [ 20 ] The sentencing judge then went on to consider the principle of totality. She identified the appropriate approach to the application of that principle as having been set out by this Court in R v McLean , 2016 SKCA 93 , 484 Sask R 137 [ McLean ], and R v Leroux , 2015 SKCA 48 , 460 Sask R 1 [ Leroux ].

In accordance with that approach, she determined the appropriate sentence for each offence and whether those sentences should run concurrently or consecutively to each other and to the other sentences imposed by her. [ 21 ] The sentencing judge determined the 14 counts of distributing child pornography should attract consecutive sentences as the pornography had been distributed to 14 separate groups/individuals on distinct occasions between 2011 and 2017. She concluded that in order to distribute pornography, Mr.

Chicoine had to first access it and possess it and thus she found there was a nexus between those offences and the distribution offences. On that basis, she determined the sentences for possessing and accessing child pornography should run concurrently to those of distributing child pornography. [ 22 ] The sentencing judge treated the offences of agreeing by means of telecommunication to make child pornography and sexually assault a child contrary to s. 172.2(1), and conspiring to make child pornography and commit sexual assault of a child contrary s. 465(1)(c), as related to Mr.

Chicoine’s offence of making child pornography. She concluded the sentences for all of the making child pornography offences, which thus included the ss. 172.2 and 465 offences, should be served concurrently to each other. The sentencing judge viewed the making of child pornography offence as distinct from the accessing or the distribution of it. Accordingly, she found the sentence pertaining to making child pornography should be served consecutively to the distribution offences. [ 23 ] Finally, the sentencing judge found the luring offences involved conduct that was distinct from Mr.

Chicoine’s other offences and thus the sentences pertaining to those offences should be served consecutively to each other and to the other sentences imposed. She concluded the offences of making sexually-explicit material available to children under the age of 18 were related to the luring offences and should be served concurrently to those offences. [ 24 ] The aggregate sentence arrived at by the sentencing judge before the application of the totality principle was 32 years of incarceration.

Attached as “Appendix A” to this judgment is the sentencing judge’s “chart” setting out each of the applicable sentences. [ 25 ] The sentencing judge concluded that a sentence of 32 years of incarceration was “not in keeping with Mr. Chicoine’s record and future prospects, and in fact would be crushing, serving to extinguish his rehabilitative potential” (at para 43). [ 26 ] To determine an appropriate global sentence, the sentencing judge considered the ranges of sentence put forward by the Crown and defence counsel.

The Crown had argued a sentence of 17 years was appropriate, relying on a number of cases involving “hands-on” sexual assaults, including the case of R v Snook , 2013 NBPC 17 , aff’d 2014 NBCA 71 [ Snook ] . Defence counsel contended a sentence of seven years was appropriate, relying on R v Pitts (4 February 2015) Kentville (NS Prov Ct) (Tufts J.), aff’d 2016 NSCA 78 [ Pitts ] .

[ 27 ] The sentencing judge disregarded the cases cited by the Crown, other than Snook , as she did not view Mr. Chicoine’s conduct with respect to the ss. 172.2(1) or 465(1)(

c) offences as involving “hands-on” sexual offending and because Mr. Chicoine was not in a position of trust with respect to the children who were abused. She focused on the Snook and Pitts cases and found that Mr. Chicoine’s conduct was more similar to that of the offender in Pitts than in Snook . [2] [ 28 ] The sentencing judge then determined that a fit and proper sentence was 12 years of incarceration. [ 29 ] The sentencing judge concluded by making a number of ancillary orders. The only one in issue in this appeal is the prohibition order granted pursuant to s. 161 of the Criminal Code .

The Crown had requested a lifetime prohibition order, but the sentencing judge concluded a ten-year order was appropriate. [ 30 ] The s. 161 order prohibited Mr. Chicoine from: (

a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre; (

b) seeking, obtaining or continuing employment, whether or not the employment is remunerated, or becoming or being a volunteer in any capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; (

c) having any contact – including communicating by any means – with a person who is under the age of 16 years, unless with consent of a parent/guardian who is aware of his convictions and only in the presence of a sober, responsible adult who is aware of his convictions; and (

d) using the Internet or other digital network, to: (

i) access any content that violates the law; (ii) communicate with any person under the age of 16 years; (iii) directly or indirectly access any social media sites, social network, Internet discussion forum or chat room, or maintain a personal profile on any such service. IV. issues [ 31 ] The Crown seeks leave to appeal and appeals the 12-year sentence imposed on Mr. Chicoine. It contends that sentence is not proportionate as it does not reflect the gravity of Mr. Chicoine’s offences or his moral culpability in committing them.

Given the nature of the offences engaged by this appeal and the significance of the issues raised, I would grant the Crown leave to appeal. [ 32 ] The Crown submits the sentencing judge misapprehended the nature and gravity of the ss. 172.2(1) and 465(1)(

c) offences; that she erred in her application of the totality principle; that the ultimate sentence imposed did not comply with the principle of proportionality and was demonstrably unfit. It also submits that the sentencing judge failed to comply with the mandatory sentencing provision contained in s. 718.3(7) of the Criminal Code , which requires sentences for certain sexual offences against children be served consecutively to sentences for other sexual offences.

The Crown’s argument with respect to s. 718.3(7) calls into question the correctness of an earlier decision of this Court: R v V.I.C. , 2005 SKCA 95 , 269 Sask R 131 [ V.I.C. ], which held that where criminal conduct occurs over a period of time, the offence is not committed until the end of that period. Thus, where an ongoing offence straddles a legislative amendment that affects sentencing, the amendment will apply. That case is important in the context of this appeal because s. 718.3(7) came into effect on July 17, 2015. Some of Mr.

Chicoine’s offences commenced before that date but continued thereafter. [ 33 ] Finally, the Crown submits the sentencing judge erred by failing to make a lifetime prohibition order against Mr. Chicoine, pursuant to s. 161 of the Criminal Code . [ 34 ] I would frame the issues for determination by this Court as follows: (

a) Did the sentencing judge err by failing to apply s. 718.3(7) of the Criminal Code ? (

b) Was there an error in principle that impacted the sentence imposed? (

c) Was the sentence demonstrably unfit? (

d) If there was an error in principle that impacted sentence or if the sentence was demonstrably unfit, what is an appropriate sentence? (

e) Did the sentencing judge err by imposing a ten-year prohibition order pursuant to s. 161 of the Criminal Code ? V. Standard of REview [ 35 ] The standard of review to be applied by this Court to the sentencing judge’s decision is a deferential one. This Court is not entitled to interfere with that decision, unless (

i) the sentence is demonstrably unfit, or (ii) the sentencing judge erred in principle, failed to consider a relevant factor, or overemphasized an appropriate factor, and such error had an impact on the sentence imposed: R v Lacasse , 2015 SCC 64 at paras 41 and 44 , [2015] 3 SCR 1089 [ Lacasse ]; R v L.V. , 2016 SKCA 74 at para 74 , 480 Sask R 181 [ L.V. ].

VI. Analysis A. Did the sentencing judge err by failing to apply s. 718.3(7) of the Criminal Code ? [ 36 ]

Section 718.3(7) came into effect on July 17, 2015, with the enactment of the Tougher Penalties for Child Predators Act , SC 2015, c 23. That subsection reads as follows: Cumulative punishments – sexual offences against children 718.3

(7) When a court sentences an accused at the same time for more than one sexual offence committed against a child, the court shall direct (

a) that a sentence of imprisonment it imposes for an offence under

section 163.1 be served consecutively to a sentence of imprisonment it imposes for a sexual offence under another

section of this Act committed against a child; and (

b) that a sentence of imprisonment it imposes for a sexual offence committed against a child, other than an offence under

section 163.1, be served consecutively to a sentence of imprisonment it imposes for a sexual offence committed against another child other than an offence under

section 163.1. [ 37 ]

Section 163.1 of the Criminal Code deals with child pornography offences, which include accessing, possessing, making and distributing such pornography. The effect of s. 718.3(7)(

a) is that sentences of imprisonment for child pornography offences must run consecutively to one another. In addition, s. 718.3(7)(

b) requires sentences of imprisonment for sexual offences, other than offences under s. 163.1 committed against different children, must also run consecutively to one another. [ 38 ]

Section 718.3(7) has serious implications for Mr. Chicoine as he committed a number of sexual offences against different children, including child pornography offences contrary to s. 163.1 . [ 39 ] The issue is whether the sentencing judge erred by failing to apply s. 718.3(7)(

b) to counts 7 and 8 of Mr. Chicoine’s offences, which involved Mr. Chicoine entering into agreements by means of telecommunication with N.H. to make child pornography and sexually assault a child, contrary to ss. 172.2(1) (

a) and (

b) of the Criminal Code . Both of those offences are continuing offences that occurred over a period of time: count 7 from June 1, 2014, to March 8, 2017; and count 8, from January 1, 2015, to December 31, 2016. Both of those offences “commenced” before s. 718.3(7) came into effect, but continued thereafter. In other words, those offences “straddled” the enactment of the new provision. The sentencing judge did not apply s. 718.3(7)(

b) to those offences; rather, she imposed concurrent sentences for them. [ 40 ] The Crown contends s. 718.3(7)(

b) mandated consecutive sentences for those offences. That position accords with this Court’s decision in V.I.C. Mr. Chicoine, on the other hand, argues the sentencing judge did not err. He submits V.I.C. was wrongly decided and relies on the Ontario Court of Appeal’s decision in Canada (Attorney General) v Lalonde , 2016 ONCA 923 , 133 OR (3d) 481 [ Lalonde ]. [ 41 ]

Section 11(

i) of the Charter provides that any person charged with an offence has the right “ if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment”. The issue is what is meant by “the time of commission”. [ 42 ] In V.I.C. , the offender – a youth – had been charged with one count of sexual assault alleged to have occurred between March 1, 2003, and April 30, 2004.

On April 1, 2003, the Young Offenders Act , RSC 1985, c Y-1 , was repealed, and the Youth Criminal Justice Act , SC 2002, c 1 , came into effect. The Youth Criminal Justice Act precluded the imposition of a deferred custody and supervision order where the offence was a “serious violent offence”. Following conviction, the trial judge had imposed a sentence consisting of deferred custody and a supervision order. On appeal, this Court was required to consider the impact of s. 11(

i) of the Charter given the legislative change as the offence in issue was a continuing one. It involved more than one sexual assault, the first of which occurred before the Young Offenders Act was repealed, and the last of which occurred after the Youth Criminal Justice Act came into effect. [ 43 ] This Court gave an oral decision with written reasons to follow. It held that where an offence is a continuing one that spans a period of time, the offence is not completed until the date the last offence occurred. It is that date that determines the “time of commission” within the meaning of s. 11(

i) of the Charter . Justice Sherstobitoff, writing for the Court, described the effect of s. 11(

i) in these terms (at para 11): ... It applies only where the punishment was varied between the time of the commission of the offence and the time of sentencing. Those acts of sexual assault which occurred during the period April 1, 2003 and April 30, 2004, occurred after the law was changed and, therefore, did not fall within the purview of s. 11(i). This was not a case of application of the law to an offence which occurred before the legislation came into effect, but of application of the law to an offence which was not complete, and therefore did not occur, until a date on which the legislation was in effect.

Accordingly, the trial judge was obliged to consider the Crown application to have the offence designated as a serious violent offence, which he failed to do. [ 44 ] This approach was adopted by the Québec Court of Appeal in R v Pouliot , 2006 QCCA 643 [ Pouliot ]. In that case, the offender had pled guilty to keeping a common bawdy house between January 1, 2000, and mid-May 2003. In that period, the law changed such that, on conviction, a bawdy house was subject to confiscation. In oral reasons, the Québec Court of Appeal stated (as translated):

[4] The Court is of the view that the confiscation of the offense-related property, the bawdy-house, is not unlawful, notwithstandingthe appellant’s claim to the application of the old Act. The Court agrees with the trial judge that the 2002 Act is applicable in this case,since the appellant’s offense is a continuing offense, which may have begun before the coming into force in 2002 of the amendment tothe Criminal Code, but continued thereafter until May 2003, the period covered by this amendment. [45] The Ontario Court of Appeal has taken a different view of what is meant by the phrase “time of commission” of an offenceas found in s. 11(

i) of the Charter. [46] In Lalonde, the offender was convicted of conspiracy to traffic in both cocaine and marihuana between March 20, 2011, andJuly 7, 2011. The Abolition of Early Parole Act, SC 2011, c 11, was enacted on March 28, 2011. Thus, the issue arose whether that Actapplied to the offences in issue. The trial judge concluded that s. 11(

i) of the Charter meant the Act did not apply. The Ontario Court ofAppeal agreed and dismissed the Crown’s appeal. Justice Doherty, writing for a unanimous Court, concluded that a crime is committedfor the purpose of s. 11(

i) of the Charter when culpability attaches – that is, when both the required actus reas and mens rea are present: [15] The distinction drawn by counsel for Mr. Lalonde between the point in time at which a crime is committed and the point atwhich that crime is completed or terminated is a valid one when the offence is a continuing offence. The commission of a crime connotesculpability for that crime. An offender is culpable in the sense that he or she is liable to be convicted for the offence when he or shehas performed the required actus reus with the required mens rea.

Criminal culpability exists from that point forward whetherthe offence is a continuing one or not: see Bell, at p. 488; and Brodie v. The King, (SCC), [1936] S.C.R. 188, at p. 198.Events subsequent to the point in time at which the actus reus and mens rea coexist cannot remove or negative culpability,although they may mitigate or aggravate punishment: see R. v. Kosh, (SK CA), [1965] 1 C.C.C. 230, 44 C.R. 185,at p. 235 (Sask. C.A.); and R. v. Roberts, [1981] B.C.J. No. 1185, at para. 7 (C.A.).

For example, a person who enters into a criminalconspiracy, intending to carry it out, but abandons the conspiracy before the object is achieved or the agreement is terminated, remainscriminally liable for the crime of conspiracy. As explained by Taschereau J., in R. v.

O’Brien, (SCC), [1954] S.C.R. 666,at p. 669: If a person, with one or several others, agrees to commit an unlawful act, and later, after having had the intention to carry it through,refuses to put the plan into effect, that person is nevertheless guilty, because all the ingredients of conspiracy can be found in theaccused’s conduct. … [16] If, as is clear on the authorities, culpability for criminal conspiracy attaches when a person enters into an agreement with one ormore other persons to commit a criminal offence, intending to achieve that criminal object, it is illogical to say that the conspiracy is notcommitted until the unlawful object is achieved or the conspiracy terminated.

The continuing nature of the offence of conspiracy hassignificance for various issues. However, the continuing nature of the crime has no impact on the determination of the point intime at which liability for the commission of the offence attaches. If a person engages in the required actus reus with the specifiedmens rea, that person commits the offence whether or not the offence is a continuing one. [17]

Section 11(

i) fixes “the time of commission” of the offence as one of the two relevant points in time to be considered whenapplying the section. I see nothing in the language of s. 11(i), or the purpose underlying the section, justifying a departure from the plainmeaning of the phrase, “the time of commission” of the crime. A crime is committed when culpability attaches. (Emphasis added) [47] Justice Doherty went on to consider this Court’s decision in V.I.C. and the Québec Court of Appeal’s decision in Pouliot.He concluded that the accused in both those cases were culpable when the first offence occurred.

With specific reference to V.I.C., hestated the following at paragraph 24: … The number of discrete acts capable of supporting liability for the offence as charged does not alter the fact that the actus reus andmens rea required to support a conviction coexisted as of the first act of sexual assault. [48] Courts in a number of other provinces have followed Lalonde. [49] In R v E.O., 2018 YKTC 9, the accused pled guilty to one count of sexual exploitation, which had allegedly occurredbetween May 1, 2014, and August 3, 2015. During that period, the Tougher Penalties for Child Predators Act was enacted.

That Actincreased the maximum penalty for the offence from 10 years to 14 years. The Court did not follow V.I.C. and endorsed Lalonde,concluding that it was inappropriate to find that the sexual exploitation was not made out until August 3, 2015. In the Court’s view, theoffence was committed at the time of the first act of sexual exploitation, which occurred on July 2, 2015. [50] In R v Delgado, 2017 NSPC 74, the accused pled guilty to committing fraud over $5,000 during the period of September10, 2012, to September 12, 2015.

On November 20, 2012, the Safe Streets and Communities Act, SC 2012, c 1, replaced the sentencingprovisions applicable to the accused. In determining how s. 11(

i) of the Charter applied to that legislated change, the Court adopted theapproach in Lalonde: [27] In my view, Justice Doherty is correct. There is nothing in the language of s. 11(i), or the purpose underlying the section,justifying a departure from the plain meaning of the phrase, “the time of commission” of the crime. A crime is committed whenculpability attaches. An offender is culpable when they have performed the required actus reus with the required mens rea. Criminalculpability exists from that point forward whether the offence is a continuing one or not. Thus, in the case at bar, Ms.

Delgado wouldhave been convicted on the Information as charged, because she had committed the actus reus and mens rea required to support aconviction before November 20, 2012. The number of discreet acts capable of supporting liability for the offence as charged does notalter the fact that the actus reus and mens rea required to support a conviction coexisted as of the first act of fraud. [51] In R v Butler (2017), 398 CRR (2d) 94 (NL Prov Ct), the accused pled guilty to possessing and distributing childpornography between October 17, 2011, and June 17, 2013.

On August 9, 2012, the mandatory minimum sentence for those offenceswas increased from 45 days to 6 months. In endorsing Lalonde, the Court determined those amendments would not apply to Mr. Butler.

In rendering its decision, the Court did not directly address what “time of commission” means for the purposes of s. 11(

i) of the Charter.The Court wrote as follows: [23] In the Lalonde case the court decided to focus its attention only on the conspiracy committed before the change in legislation,and not after that change. The court, without specifically stating it, concluded that where the charges straddle dates within which thelegislation changed, the legislation that carries the lesser punishment should apply. In our present case, because the Crown decided toproceed with the possession offence where acts occurred both before and after the change in legislation, I am also inclined to the viewthe lower penalty should apply.

Otherwise in taking into account all the acts of possession of child pornography, of which there were 126in this case, the accused could be subject to the lesser penalty for some acts which occurred before the change in the legislative scheme,and a greater penalty for other acts which occurred after the legislative changes. Where there is only one offence charged, only onepenalty can be imposed. It appears to me that to subject the accused to the higher minimum penalty would be contrary to

section 11(

i) ofthe Charter, as the penalty did change between the time of commission of part of the offence and the sentence. Thus, I conclude that inthe case of possession of child pornography the mandatory minimum to which Mr. Butler can be subject is 45 days.

However, as thisdoes not apply to the offence of making available for distribution, he is still subject to the mandatory minimum of 1 year for that offence. [52] I prefer the approach adopted in Lalonde over the one employed in V.I.C., that is, an offence is committed when both therequired actus reus and mens rea are first present. (See also, the cases cited at paragraphs 14–16 of Lalonde.) That is the “time ofcommission” within the meaning of s. 11(

i) of the Charter. In V.I.C., the actus reus and the mens rea of the alleged offence were bothpresent when the first sexual assault was committed. The additional sexual assaults only added to the gravity of the offending. As such,V.I.C. was not correctly decided and should no longer be followed. [53] With respect to Mr. Chicoine’s s. 172.2(1) offences, those offences were committed when Mr. Chicoine, usingtelecommunication, entered into agreements with N.H. to create child pornography and commit sexual assault against a child. Suchoffences are comparable to conspiracy offences.

In R v Papalia, (SCC), [1979] 2 SCR 256 at 276–277 [Papalia],Dickson J. described the offence of conspiracy in these terms: The word “conspire” derives from two Latin words, “con” and “spirare”, meaning “to breathe together.” To conspire is to agree. Theessence of criminal conspiracy is proof of agreement. On a charge of conspiracy the agreement itself is the gist of the offence: Paradis v.R., [ (SCC), [1934] S.C.R. 165], at p. 168. The actus reus is the fact of agreement: D.D.P. v. Nock, [[1978] 3 W.L.R. 57(H.L.)], at p. 66.

The agreement reached by the co-conspirators may contemplate a number of acts or offences. Any number of personsmay be privy to it. Additional persons may join the ongoing scheme while others may drop out. So long as there is a continuing overall,dominant plan there may be changes in methods of operation, personnel, or victims, without bringing the conspiracy to an end. Theimportant inquiry is not as to the acts done in pursuance of the agreement, but whether there was, in fact, a common agreement to whichthe acts are referable and to which all of the alleged offenders were privy. In R. v.

Meyrick and Ribuffi [(1929), 21 Cr. App. R. 94(C.C.A.)], at p. 102 the question asked was whether “the acts of the accused were done in pursuance of a criminal purpose held incommon between them”, and in 11 Halsbury (4th ed.), at p. 44 it is said: It is not enough that two or more persons pursued the same unlawful object at the same time or in the same place; it is necessaryto show a meeting of minds, a consensus to effect an unlawful purpose.

There must be evidence beyond reasonable doubt that the alleged conspirators acted in concert in pursuit of a common goal. (Emphasis added) [54] This description was quoted with approval by this Court in R v Nicholson, 2018 SKCA 62 at para 27, [2018] 11 WWR 410[Nicholson]. See also: R v O’Brien, (SCC), [1954] SCR 666 at 668; R v J.F., 2013 SCC 12 at para 21, [2013] 1 SCR565; R v Root, 2008 ONCA 869 , 2008 ONCJ 869 at paras 66–68, 241 CCC (3d) 125.

It is an apt description of the commissionof offences pursuant to s. 172.2(1), the only difference being that s. 172.2(1) offences require the agreement be entered into by means oftelecommunication and relate to a sexual offence against a child. [55] While both conspiracy offences and offences under s. 172.2(1) are complete in law when two or more persons enter into anagreement to achieve a mutual criminal objective, the offence itself may continue until the purpose of the agreement is achieved, or theagreement is otherwise terminated.

This concept was explained in R v Vu, 2012 SCC 40 at para 49, [2012] 2 SCR 411. In that case, theCourt was considering the offence of kidnapping: [49] In my view, Metcalfe and Reid do not advance the appellant’s position. These cases stand for the proposition that the crime ofkidnapping is complete in law at the point of the taking, irrespective of whether the victim is subsequently “secreted” or held inconfinement. The converse inference — that a subsequent confinement is not a part of the offence of kidnapping — does not follow.Chief Justice Finch recognized this distinction in the instant case.

He stated, correctly in my view, that the comment [in Reid] that kidnapping need not be regarded as a “continuing offence” was made in the context of deciding whether therewas a completed offence without the secreting or concealment of the victim. I do not think it can be regarded as authority for saying thata subsequent confinement may not form part of the offence. [Emphasis added; para. 45.] (Italics in original, bold emphasis added) [56] Mr.

Chicoine had committed the s. 172.2(1) offences when, by means of telecommunication, he entered into agreementswith N.H. to make child pornography and to commit sexual assault against a child. The fact that the agreements continued and led to theactual making of child pornography on more than one occasion, as well as the sexual assault of a child, does not alter the fact that theoffences themselves were committed when the agreements were entered into: Papalia at 276–277; Nicholson at para 27. As such, s.718.3(7)(

b) did not apply to those offences because they were committed before that subsection came into effect. Accordingly, thesentencing judge did not err by failing to apply that subsection to those offences.

B. Was there an error in principle that impacted the sentence imposed? 1. Position of the parties [57] The Crown submits the sentencing judge made a number of errors in applying the principles of sentencing, which impactedthe sentence imposed. It identified those errors as follows: First, that the sentencing judge erred by misapprehending the nature andgravity of the offences committed contrary to ss. 172.2(1) and 465(1)(

c) of the Criminal Code. The Crown argues the sentencing judgeerred by treating those offences as relating to the making of child pornography and failed to appreciate that Mr. Chicoine’s moralculpability for those offences was at least as great as the adults he had paid to commit them. Second, she erred in applying the principleof parity by inappropriately relying on Pitts. Third, the Crown contends the sentencing judge erred in applying the principle of totality bypicking a figure out of the air and then working backwards to allocate that figure among Mr. Chicoine’s offences. It submits that errorresulted in Mr.

Chicoine receiving a “free ride” for some of his offences. Finally, the Crown argues that the ultimate sentence imposedwas demonstrably unfit, as it did not comply with the principle of proportionality (McLean at para 56; R v F.(D.G.), 2010 ONCA 27 atpara 27, 250 CCC (3d) 291 [F.(D.G.)]; R v Tettersell, 2012 ABCA 57 at para 11, 524 AR 88 [Tettersell]). [58] Mr. Chicoine contends the sentence imposed is entitled to deference by this Court.

It is his position that the sentencingjudge did not err in principle, did not fail to consider a relevant factor or overemphasize an appropriate factor, and that the sentence itselfis not demonstrably unfit. Mr. Chicoine submits the sentencing judge properly assessed the gravity of his offences and his moralculpability in committing them and imposed sentences that reflected that. He further submits the sentencing judge properly applied theprinciple of totality and that her decisions with regard to which sentences should be concurrent and which should be consecutive are“unimpeachable”. 2.

Purpose and principles of sentencing [59] In order to determine whether the sentencing judge erred in principle, it is useful to recap the objectives and principles ofsentencing as set out in the Criminal Code. [60] Sentencing is a highly-individualized process where the sentencing judge has considerable discretion to craft a fit sentence.A sentencing judge’s discretion, however, is not without limits.

It is circumscribed by the purposes and principles of sentencing as set outin ss. 718 to 718.2 of the Criminal Code. [61] The fundamental purpose of sentencing is to protect society and contribute to respect for the law and maintenance of a just,peaceful and safe society by the imposition of fair sanctions for criminal offences.

Section 718 sets out the objectives of sentencing,which apply to varying degrees depending on the offence involved. Those objectives may be summarized as follows: (

a) denunciation;(

b) deterrence (both general and personal); (

c) the need where necessary to separate an offender from society; (

d) rehabilitation of theoffender; (

e) reparation for harm done; and (

f) the promotion of a sense of responsibility in the offender and acknowledgement of theharm done to victims or the community. [62]

Section 718.1 of the Criminal Code identifies the fundamental principle of sentencing, namely, that a sentence must beproportionate to the gravity of the offence and the degree of responsibility of the offender. [63]

Section 718.2 of the Criminal Code sets out other sentencing principles to be considered, including: (

a) that a sentenceshould be increased or decreased to account for any relevant, aggravating or mitigating circumstances; (

b) that a sentence should besimilar to sentences imposed on similar offenders for similar offences committed in similar circumstances (the principle of parity); (c)where consecutive sentences are imposed, that the sentence should not be “unduly long or harsh” (the totality principle); (

d) that anoffender should not be deprived of liberty if a less-restrictive sanction may be appropriate; and (

e) that all available reasonable sanctions,other than imprisonment, should be considered with particular attention to the circumstances of Aboriginal offenders (the Gladuefactors).

The latter two objectives encompass what is known as the principle of restraint. [64] Of particular importance to this appeal is the principle of totality. [65] In R v M.(C.A.), (SCC), [1996] 1 SCR 500 [M.(C.A.)], Lamer C.J.C. indicated that the totality principle isreally an expression of the principle of proportionality: [42] In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular formof the “totality principle”.

The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutivesentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender.As D. A.

Thomas describes the principle in Principles of Sentencing (2nd ed. 1979), at p. 56: The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated inrelation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governingconsecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is “just and appropriate”. … (Emphasis added) That view was echoed by this Court in R v Louison, 2008 SKCA 69 at para 10, 310 Sask R 217. [66] This Court has set out the proper approach to be followed in applying the principle of totality in Leroux at paras 83–84,McLean at paras 55–56, R v T.F., 2019 SKCA 82 at paras 59–60 [T.F.], and R v Smith, 2019 SKCA 100 at paras 151–154 [Smith].

Ajudge, when sentencing an offender for multiple offences, must first determine the appropriate sentence for each offence and then decidewhether those sentences should be served concurrently or consecutively to each other. If one or more consecutive sentences are imposed,

the judge must go on to apply the principle of totality and consider whether the cumulative effect of the sentence is “unduly long orharsh”.

Application of the principle of totality has been described as taking “one last look” at the sentence to determine if it is just andappropriate: R v Reader, 2008 MBCA 42 at para 26, 225 Man R (2) 118 [Reader]. [67] In determining whether a sentence is unduly long or harsh, a sentencing judge must consider all relevant factors, including,but not limited to, the number, gravity and circumstances of the offences involved, the offender’s moral culpability, the principle ofparity, the harm done to the victim(s), and the offender’s age, criminal record and personal circumstances, including his prospects forrehabilitation (McLean at para 84; Leroux at para 94; R v Drouin (1994), (SK CA), 125 Sask R 49 (CA) at para 16[Drouin]; R v Keshane, 2005 SKCA 18 at para 56, 257 Sask R 161; Reader at para 27; R v Draper, 2010 MBCA 35 at para 31, 253 CCC(3d) 351; R v Wozny, 2010 MBCA 115, 267 CCC (3d) 308 [Wozny]; R v Briltz, 2016 SKCA 2 at para 81, 472 Sask R 201 [Briltz]; Smithat paras 153–154). [68] If a judge concludes a sentence is “unduly long or harsh”, then the sentence must be adjusted. [69] A number of different approaches have been taken to adjust a sentence so that it complies with the principle of totality:sentences that would normally be consecutive have been made concurrent; individual sentences have been made shorter; or a singleconcurrent term has been imposed for some or all offences (Drouin at paras 14–15; R v Palfrey, 2014 SKCA 1 at para 61, 427 Sask R292 [Palfrey]; Reader at para 28; Smith at para 152). [70] This Court has indicated that the preferable way to adjust a sentence to comply with the principle of totality is by convertingconsecutive sentences into concurrent ones.

That approach has the advantage of maintaining the original individual sentence imposedwhile, at the same time, reducing the cumulative sentence. In Drouin, Wakeling J.A. described the rationale in these terms: [14] ... The totality principle has been applied in a number of ways.

Sentences which would normally be consecutive have been madeconcurrent; individual sentences have been made lower than they would normally be to reflect the fact a number of consecutivesentences are involved; or a single concurrent term has been imposed as an appropriate sentence for all the charges under consideration. [15] The trial judge has decided to apply the principle by reducing the individual sentences imposed for each offence. That is, hereduced each sentence somewhat and then accepted that the total sentence must necessarily be appropriate.

That is certainly one of theaccepted ways of applying the principle but in my view it is not the most effective way. The word “totality” is to my mind ofsignificance. It is a concept which suggests that after all the appropriate sentences have been totalled, if the sum of these sentences seemsinappropriate an adjustment downward should be made. If this adjustment is made in respect of each sentence, there is no way in whichthe total sentence is ever measured against what the accused, the victim and society requires as an appropriate total period ofincarceration.

To take six months off of a three year sentence on the basis of totality has little relationship to what the overall sentenceshould be. It is hard to see how the totality principle can be adequately addressed by applying it to individual charges and then makingthe assumption the total sentence is properly reflective of the application of the principle. See also, Palfrey at para 61; Smith at para 152. [71] In Mr. Chicoine’s case, many of the sentences imposed were required by statute to be served consecutively.

This raises thequestion of how the obligation to impose consecutive sentences fits with the principle of totality. That question was answered by thisCourt in Palfrey, which concluded that if the imposition of obligatory consecutive sentences pushes the total sentence beyond whatcorresponds with the culpability of the offender, the principle of totality is engaged and it is appropriate to adjust the sentences forindividual offences accordingly.

Chief Justice Richards, writing for the Court, stated: [58] An obvious question arises, therefore, about how the obligation to impose a consecutive sentence pursuant to s. 467.14 fits withthe totality principle. The answer can be found in R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555. It dealt with a parallel requirementin s. 83.26 of the Code to the effect that sentences for terrorist offences must be served consecutively. McLachlin C.J.C. said consecutivesentences in that context did not necessarily offend the totality principle.

She said the only issue is whether the total sentence exceeds theculpability of the offender: [126] While I agree with the Court of Appeal that s. 83.26 requires that sentences for terrorist offences be served consecutively, I do notagree that this result is inconsistent with the totality principle on the evidence in this case. The only restriction imposed by the totalityprinciple is that the sentence not exceed the overall culpability of the offender.

While the practice in Canadian courts is to imposesentences of between 15 to 20 years if a life sentence is not appropriate, this practice is not binding and is not part of the totalityprinciple: see R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, per Lamer C.J., at para. 56. The fact that sentences of over20 years may be imposed more often in terrorism cases is not inconsistent with the totality principle. It merely attests to the particulargravity of terrorist offences and the moral culpability of those who commit them.

I conclude that the heightened gravity of the terrorismoffences at issue in this case was sufficient to justify imposition of consecutive sentences running over 20 years, without violating thetotality principle. [emphasis added] [59] I should perhaps note that McLachlin C.J.C.’s comments are not inconsistent with what this Court said in R. v. Aube, 2009SKCA 53, 324 Sask. R. 303.

There, dealing with the sentence for a cocaine trafficking offence, Smith J.A. observed, at para. 21, that ajudge would err if he or she reduced the sentence on a drug conviction to take into account the mandatory consecutive nature of thesentence for a criminal organization offence. She observed that any such approach would frustrate the will of Parliament. This is, ofcourse, correct unless the consecutive sentence on the criminal organization offence pushes the total sentence beyond the levelthat corresponds with the overall culpability of the offender.

At that point, the totality principle engages and it is appropriate toadjust the sentences for individual offences accordingly. (Emphasis added) [72] A sentencing judge’s determination of the ultimate sentence to be imposed when applying the principle of totality is adiscretionary one. However, as with all discretionary decisions, the exercise of the discretion is not without limits.

[73] In applying the principle of totality, a sentencing judge should not simply pick a figure out of the air and apportion it amongthe various offences.

This is evident from Caldwell J.A.’s comments at paragraph 83 of Leroux in which he quoted a passage from R vTasew, 2011 ABCA 241, 282 CCC (3d) 260, where the Court eschewed the practice of doing the totality analysis backwards, by arrivingat a global sentence first and then distributing that sentence among the various offences (see also, McLean at para 56). [74] In my view, the analysis of what constitutes a suitable global sentence must begin with the appropriately calculatedsentence for each offence.

The analysis will be informed by the principle of parity – that is, that similar offenders should receive similarsentences for similar offences committed in similar circumstances. It will also be informed by the continued application of the sentencingprinciples set out in ss. 718 to 718.2 of the Criminal Code. Most importantly, the ultimate sentence must comply with the principle ofproportionality.

As stated by Lamer C.J.C. in M.(C.A.) at para 82: “In the final analysis, the overarching duty of a sentencing judge is todraw upon all of the legitimate principles of sentence to determine a just and appropriate sentence, which reflects the gravity of theoffence committed and the moral blameworthiness of the offender”. [75] As explained by LeBel J., writing for a unanimous Court in R v Nasogaluak, 2010 SCC 6, [2010] 1 SCR 206 [Nasogaluak],the principle of proportionality serves a limiting or restraining function to ensure a sentence does not exceed what is just and appropriategiven the moral blameworthiness of the offender and the gravity of the offence.

That function is counterbalanced by the “just deserts”philosophy of sentencing. At paragraph 42 of Nasogaluak, LeBel J. stated: [42] For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of theoffender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function.

However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the “just deserts” philosophy of sentencing,which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemnstheir role in the offence and the harm they caused (R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 81; Re B.C.Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, at pp. 533-34, per Wilson J., concurring). Understood in this lattersense, sentencing is a form of judicial and social censure (J. V. Roberts and D. P.

Cole, “Introduction to Sentencing and Parole”, inRoberts and Cole, eds., Making Sense of Sentencing (1999), 3, at p. 10). Whatever the rationale for proportionality, however, thedegree of censure required to express society’s condemnation of the offence is always limited by the principle that an offender’ssentence must be equivalent to his or her moral culpability, and not greater than it.

The two perspectives on proportionality thusconverge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary. (Emphasis added) [76] With these principles of sentencing in mind, I turn to consider whether the sentencing judge erred in principle. I begin withthe Crown’s assertion that the sentencing judge misapprehended the nature and gravity of the ss. 172.2(1) and 465(1)(

c) offences, whichled to the imposition of an ultimate sentence that did not comply with the principle of proportionality. 3. Misapprehension of the nature and gravity of the ss. 172.2(1) and 465(1)(

c) offences [77] It is useful to elaborate on the circumstances surrounding the commission of the ss. 172.2(1) and 465(1)(

c) offences toprovide the necessary context for analyzing whether the sentencing judge erred by misapprehending or mischaracterizing those offences. [78] Mr. Chicoine paid more than $20,000 to at least nine different adults located in Romania and the Philippines to sexuallyassault and sexually exploit a minimum of 15 different children. Mr. Chicoine communicated with these individuals through computersand digital devices. The sexual abuse of the children was livestreamed and Mr. Chicoine, in real time, directed and orchestrated thatabuse to satisfy his own sexual needs.

The children involved ranged in age from approximately 10 months to 14 years. Most of thechildren were young girls between the ages of 4 and 12, though young boys were also abused. The sexual abuse perpetrated on thechildren included posing to display their genitalia and anuses, oral sex, digital penetration and urination. It occurred primarily in 2011and between 2014 and 2017. The livestreamed abuse was recorded. Mr. Chicoine had 38 separate series of video depicting that abuse.

Healso took “screenshots” as the abuse was occurring and those “screenshots” constitute his making child pornography offence. [79] As a result of the conduct that occurred in 2011, Mr. Chicoine was convicted of six counts of conspiracy contrary to s.465(1)(

c) of the Criminal Code. Those offences involved agreements with five different adults to either sexually assault children (twocounts) or to create child pornography (four counts). For the conduct that occurred between 2014 and 2017, Mr. Chicoine was convictedof five counts of using a telecommunication device to enter into agreements with four other adults to either sexually assault children (twocounts) or create child pornography (three counts) contrary to s. 172.2(1) of the Criminal Code. [80] The sentencing judge concluded the 11 offences committed under ss. 172.2(1) and 465(1)(

c) were related to Mr. Chicoine’smaking child pornography offence and that the sentences for those offences should run concurrently to the sentence imposed for makingchild pornography. At paragraph 40 of the sentencing judgment, she stated: Making child pornography is a distinct act. It involves conduct different from accessing, possessing, and distributing child pornography,and therefore the sentence should be consecutive. Here, the making of child pornography involved others. Mr. Chicoine agreed andconspired with others to sexually assault children and to make child pornography.

The 11 counts relating to agreement or conspiracy tosexually assault children and to make child pornography are all related to Mr. Chicoine’s conduct in making child pornography, andshould be sentenced concurrently with the single count of making child pornography, which spans the time period between 2011 to 2017. [81] The Crown contends this conclusion constituted an error in principle that affected both the sentencing judge’s calculation ofan appropriate sentence for the ss. 172.2(1) and 465(1)(

c) offences and her determination of the ultimate sentence to be imposed. [82]

Section 172.2(1) criminalizes the use of telecommunication, which includes computers and digital devices to makeagreements for the purpose of committing sexual offences against children. Livestreamed abuse is an example of how technology can beused to prey upon vulnerable children. It allows sexual predators in the confines of their home to orchestrate the physical and sexualabuse of children located anywhere in the world. Such abuse can be recorded visually and audibly and disseminated worldwide.

Section 172.2(1) did not exist in 2011. Thus, Mr. Chicoine, for engaging in similar conduct in that year, was charged with conspiring to commit the offences of making child pornography and sexual assault of a child. [ 83 ] In R v Carter , [2018] NJ No 28 (QL) (NL Prov Ct) , Gorman P.C.J. aptly described how technology has impacted sexual offending against children in these terms: [1] How does a person in Newfoundland and Labrador commit sexual offences against four children living in another country without having ever met them? The Internet.

The Internet provides sexual abusers of children with world wide access to children and a degree of anonymity which their predecessors could never have imagined. How is the judiciary to respond? [2] In my view, Canadian judges must recognize that they are dealing with a type of sexual abuse of children which is unprecedented, ongoing, and worldwide: a form of sexual abuse never imagined by our predecessors. A request by a sexual offender that a child in his presence perform a sexual act should no longer be seen as any different as a request to do so online.

In many instances the latter is worse because of how difficult it is to prevent. Thus, we must recognize that the online sexual abuse of children can at times be as serious as the personal sexual abuse of children. [ 84 ] Comments by the Supreme Court of Canada with respect to s. 172.1 (internet child luring) are instructive in considering the purpose and nature of offences under s. 172.2(1) . This is so because both those sections are aimed at predatory adults who use telecommunication to perpetrate sexual offences against children. Those sections provide in part: Luring a child 172.1

(1) Every person commits an offence who, by a means of telecommunication, communicates with (

a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1),

section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2)[.] Agreement or arrangement — sexual offence against child 172.2

(1) Every person commits an offence who, by a means of telecommunication, agrees with a person, or makes an arrangement with a person, to commit an offence (

a) under subsection 153(1),

section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2) with respect to another person who is, or who the accused believes is, under the age of 18 years; (

b) under

section 151 or 152, subsection 160(3) or 173(2) or

section 271, 272, 273 or 280 with respect to another person who is, or who the accused believes is, under the age of 16 years; or (

c) under

section 281 with respect to another person who is, or who the accused believes is, under the age of 14 years. ... [ 85 ] In R v Legare , 2009 SCC 56 , [2009] 3 SCR 551 [ Legare ], Fish J. described Parliament’s intent in enacting s. 172.1: [1] The Internet is an open door to knowledge, entertainment, communication — and exploitation . [2] We are concerned on this appeal with legislation adopted by Parliament to shut that door on predatory adults who, generally for a sexual purpose, troll the Internet for vulnerable children and adolescents.

Shielded by the anonymity of an assumed online name and profile, they aspire to gain the trust of their targeted victims through computer “chats” — and then to tempt or entice them into sexual activity, over the Internet or, still worse, in person. (Emphasis in original) [ 86 ] In R v Morrison , 2019 SCC 15 , 375 CCC (3d) 153, Moldaver J. described the purpose of s. 172.1 as follows: [39] Before turning to the three issues raised on appeal, I find it useful to first describe the nature and purpose of the child luring offence.

Parliament created this offence to combat the very real threat posed by adult predators who attempt to groom or lure children by electronic means. As this Court explained in Levigne , the offence seeks to protect children by “identify[ing] and apprehend[ing] predatory adults who, generally for illicit sexual purposes, troll the Internet to attract and entice vulnerable children and adolescents”: para. 24 . [40] To achieve this purpose, s. 172.1 criminalizes conduct that precedes the commission, or even the attempted commission, of certain designated offences, most of which involve sexual exploitation of children.

It thereby creates an essentially inchoate offence — that is, a preparatory crime that captures conduct intended to culminate in the commission of a completed offence : see Legare , at para. 25 ; R. v. Alicandro , 2009 ONCA 133 , 95 O.R. (3d) 173, at para. 20 , citing A. Ashworth, Principles of Criminal Law , (5th ed. 2006), at pp. 468-70. There is no requirement that the accused meet or even intend to meet with the other person with a view to committing any of the designated offences: see Legare , at para. 25 .

The offence reflects Parliament’s desire to “close the cyberspace door before the predator gets in to prey”: para. 25. (Emphasis added) [ 87 ] In my view, ss. 172.2(1) and 172.1 serve the same purpose, namely, to “shut the door” on predatory adults who use telecommunication to commit sexual offences against children.

Section 172.2(1) seeks to protect children by identifying and apprehending predatory adults who enter into agreements to commit sexual offences against children before the offences contemplated

by such agreements are actually committed. Indeed, the commission of the sexual offence that forms the subject matter of a s. 172.2(1)agreement is not a prerequisite to a conviction under that section. This is so because the gist of the offence is the agreement, not thesexual offence itself. [88] Mr. Chicoine’s s. 465(1)(

c) offences serve the same purpose as the offences committed contrary to s. 172.2(1). Both ofthose sections create inchoate offences, which criminalize agreements entered into to commit sexual offences against children. The keydifference is that s. 465(1)(

c) does not require the agreements be made by telecommunication. [89] Making child pornography, on the other hand, targets those who record, by any means, children engaged in sexual activity,presented in sexually suggestive poses or depict, for a sexual purpose, a child’s sexual organs or anal region: R v Sharpe, 2001 SCC 2,[2001] 1 SCR 45. [90]

Section 172.2(1) and s. 465(1)(

c) offences also address different societal interests than the offence of making childpornography. The offence of making child pornography is concerned with protecting children from a specific type of sexual exploitation.Section 172.2(1) is concerned with the ever-increasing use of technology by sexual predators to commit sexual offences against children.In the circumstances of this case, the same societal interest is engaged by Mr. Chicoine’s s. 465(1)(

c) offences. [91] Given that the purpose and societal interest involved in the ss. 172.2(1) and 465(1)(

c) offences are different from thoseengaged by the offence of making child pornography, the sentencing judge erred by characterizing those offences as relating to makingchild pornography: R v Kandola, 2014 BCCA 443 at para 40, 317 CCC (3d) 166; R v McCrea, 2008 BCCA 227 at paras 7–9, 256 BCAC312. Further, those offences are distinguishable from the making child pornography offence because some of the agreements entered intoby Mr. Chicoine related to committing sexual assaults against children for the purpose of gratifying Mr. Chicoine’s own sexual needs. [92] All of this leads to the question of whether the sentencing judge erred by imposing sentences for the ss. 172.2(1) and465(1)(

c) offences that were to run concurrently to the sentence imposed for making child pornography. Except where prescribed bylegislation, a sentencing judge’s decision to impose consecutive or concurrent sentences is subject to the same deferential treatment byappellate courts as the sentence itself: R v McDonnell, (SCC), [1997] 1 SCR 948 at para 46; R v Agecoutay, 2009SKCA 100 at para 62, [2009] 11 WWR 606 [Agecoutay]. [93] Generally speaking, consecutive sentences are to be imposed for different offences.

As stated by Green C.J., writing for theNewfoundland and Labrador Court of Appeal (five judges sitting), in R v Hutchings, 2012 NLCA 2 at paras 18–19, 282 CCC (3d) 104(quoting R v Crocker (1991), (NL CA), 93 Nfld & PEIR 222 (NL CA) at para 47): “consecutive sentences should beimposed unless there is a valid reason not to do so”. [94] In Agecoutay, this Court concluded concurrent sentences are appropriate in two situations: (

i) when more than oneconviction arises from a single circumstance, venture, enterprise or transaction; and (ii) to avoid an overall sentence that is unduly long orharsh. The rationale behind the first situation is to ensure no offender is punished twice for the same conduct. The second situationrelates to how a sentence can be adjusted to comply with the principle of totality. [95] While the concept of imposing concurrent and consecutive sentences seems simple, it is not always easy to apply inpractice. It is often difficult to determine whether the necessary nexus exists to warrant a concurrent sentence.

Even where such a nexusdoes exist, a court may refuse to impose concurrent sentences where offences constitute the invasion of different legally-protectedinterests or where there are multiple victims: R v Boyd, 2016 ONCA 380 at para 3; R v Gillis, 2009 ONCA 312, 248 OAC 1; R v Berry,2014 BCCA 7 at para 53, 349 BCAC 76; R v P.K., 2012 MBCA 69 at para 23, 286 CCC (3d) 112; R v DC, 2016 MBCA 49 at para 43,336 CCC (3d) 366 [DC]. [96] In McLean, Ottenbreit J.A., writing for this Court, stated: [54] Generally speaking, and subject to the totality principle, multiple offences against multiple victims may result in the lengtheningof the overall sentence.

In the case of sexual offences on multiple victims, it may be more appropriate to impose consecutivesentences. Some courts have commented that to treat cases with multiple victims in close time proximity as a singular eventwould allow the offender to commit crimes “cheaper by the dozen” (R v Maliki, 2005 BCCA 495, 201 CCC (3d) 524; R v Berry,2014 BCCA 7, 349 BCAC 76) or result in a “free ride” error (R v P.K., 2012 MBCA 69, 286 CCC (3d) 112). (Emphasis added) [97] This same view was expressed by the Manitoba Court of Appeal in DC.

In that case, the accused had sexually abused all ofhis children and made and distributed child pornography involving his daughter. In considering whether the sentences imposed for thesexual abuse and distribution should be consecutive or concurrent, Burnett J.A., writing for a unanimous Court, stated: [43] In my view, concurrent sentences are rarely appropriate where there are separate victims of sexual abuse, each of whom hassuffered an individual harm. (And I note parenthetically that on July 17, 2015, Canada Bill C-26,

An Act to amend the Criminal Code,the Canada Evidence Act and the Sex Offender Information Registration Act, to enact the High Risk Child Sex Offender Database Actand to make consequential amendments to other Acts, 2nd Sess, 41st Parl (assented to 18 June 2015), came into effect amending anumber of the sentencing provisions for child abuse offences.

While these amendments are not retrospective and, therefore, are notapplicable to the present case, sentencing judges will now be obligated to order consecutive sentences for sexual offences involvingchildren, including offences involving child pornography.) [98] As indicated, the purpose of ordering sentences to be served concurrently is to ensure no offender is punished twice for thesame conduct. Here, the conduct giving rise to the ss. 172.2(1) and 465(1)(

c) offences was not the same as the conduct giving rise to theoffence of making child pornography. Sections 172.2(1) and 465(1)(

c) target the making of agreements to commit sexual offences; whilemaking child pornography involves the commission of a specific sexual offence against children, namely, the recording, by any means,of children engaged in sexual activity presented in sexually suggestive poses or depicting for a sexual purpose a child’s sexual organs oranal region. Further, as already pointed out, some of the agreements entered into by Mr. Chicoine related to the sexual assault of children

for the primary purpose of satisfying his sexual needs. [ 99 ] Finally, Mr. Chicoine’s making child pornography offence was not based on the video recordings created pursuant to the ss. 172.2(1) and 465(1) (

c) agreements. Those video recordings included not only the recording of the livestreamed sexual abuse paid for by Mr. Chicoine but also included pre-recorded videos of other sexual assaults for which Mr. Chicoine was not present. On the other hand, Mr. Chicoine’s making child pornography offence related only to “screenshots” taken of the livestreamed sexual abuse. As a result, the sentencing judge’s determination that the ss. 172.2(1) and 465(1) (

c) offences should run concurrently to Mr. Chicoine’s making child pornography offence failed to recognize the gravity of those offences, which included agreements to sexually assault children as well as make child pornography. [ 100 ] The sentencing judge’s characterization of the ss. 172.2(1) and 465(1)(

c) offences as relating to the making of child pornography also led her to overlook aggravating factors relevant to assessing the gravity of those offences. Those factors include the fact the sexual offences that formed the subject matter of the agreements and conspiracies entered into by Mr. Chicoine were actually carried out and that Mr. Chicoine played a key role in the commission of those offences by paying for them and by directing and orchestrating the sexual abuse. The fact Mr.

Chicoine’s victims were children, that he understood the people he was paying to abuse them and record that abuse were the mothers of those children, the number of children involved, the sexual degradation to which the children were subjected and the period of time over which the offending occurred, all add to the gravity of those offences. While not specifically raised by the Crown as part of its appeal, those aggravating factors bear on what constitutes a proportionate sentence. [ 101 ] The sentencing judge’s misapprehension of the gravity of the ss. 172.2(1) and 465(1)(

c) offences is also evident from her conclusion that Mr. Chicoine “did not engage in hands-on sexual offending of children” (at para 28). That conclusion led the sentencing judge to disregard a number of cases cited by the Crown with regard to an appropriate ultimate sentence. Convictions for conspiracy pursuant to s. 465(1) (

c) of the Criminal Code render an offender liable to the same sentence as an offender who actually commits the offence. In this case, that includes the sexual assault of children. In other words, Mr. Chicoine’s offending equated to actual “hands-on” sexual offending for sentencing purposes. Further, Mr. Chicoine was actively engaged in the online sexual assault of children. The fact he directed such assaults through telecommunication does not detract, in any way, from his direct involvement in the sexual assaults committed. He was present in real time and directed and orchestrated the assaults.

In my view, his conduct equated to “hands-on” sexual offending. Advances in technology give new meaning to that concept and courts must adjust to that changing reality. [ 102 ] The sentencing judge also distinguished the Crown’s case authorities on the basis they involved “serious hands-on sexual offending against children, generally conducted by adults in positions of trust and authority, often involving reoccurring or repeated sexual assaults over an extended period of time, and one even involving the administration of noxious substances”.

Instead, she focused on two cases: Pitts , which was cited by the defence, and Snook , which was cited by the Crown. She found those two cases set out the “two ends of the spectrum on sentencing”. The offender in Pitts was sentenced to 7 years of incarceration, while Mr. Snook was sentenced to 18 years. [ 103 ] In Pitts , the offender pled guilty to 11 charges: one count of possessing child pornography; one count of accessing child pornography; one count of making child pornography; and, eight counts of conspiracy to commit the indictable offence of sexual assault against a child, contrary to s. 465(1) (

c) of the Criminal Code . Mr. Pitts received a global sentence of seven years, distributed among his offences as follows: (

a) five years consecutive for the eight conspiracy charges; (

b) two years concurrent for making child pornography; (

c) two years concurrent for accessing child pornography; and (

d) two years consecutive for possessing child pornography. [ 104 ] Like Mr. Chicoine, Mr. Pitts had communicated with women in the Philippines. He had paid them modest amounts of money to participate in five or six livestreamed shows where he watched them and others engage in the sexual abuse of children. As part of the “livestreamed shows”, Mr. Pitts directed particular acts be undertaken for his viewing. Mr. Pitts recorded two of those shows, which formed the basis for his making child pornography charge. [ 105 ] Mr.

Pitts had a collection of child pornography, separate and apart from the videos of those livestreamed shows, which consisted of “a couple of hundred” images and a number of videos. [3] Mr. Pitts had a prior criminal conviction for sexual interference and was assessed as a “high risk to reoffend” against children. [ 106 ] In Snook , a 41-year-old offender pled guilty to 46 sexual offences against 17 young males, which occurred over a 12-year period.

The offences included production, possession and sharing of child pornography, sexual interference, invitation to sexual touching, sexual exploitation, child luring, sexual assault and extortion. The majority of the sexual offences involved touching, masturbation and oral sex. There was one victim of anal penetration and one of attempted anal penetration. Mr. Snook was a pastor, foster parent and youth ministry worker. His victim

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