R v Rhode, 2019 SKCA 17

Court of Appeal for Saskatchewan Docket: CACR2870 Citation: R v Rhode , 2019 SKCA 17 Date: 2019-02-01 Between: Shawn Michael Rhode Appellant And Her Majesty the Queen Respondent Before: Caldwell, Ryan-Froslie and Schwann JJ.A. Disposition: Conviction appeal dismissed; sentence varied Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Madam Justice Ryan-Froslie In dissent: The Honourable Madam Justice Schwann On Appeal From: 2015 SKQB 353 and 2016 SKQB 330 , Saskatoon Appeal Heard: May 2, 2018 Counsel: Michael D. Nolin for the Appellant Erin L.

Bartsch for the Respondent Caldwell J.A. I. INTRODUCTION [ 1 ] Shawn Michael Rhode appeals against his convictions and his sentences after a trial on indictable offences under the Criminal Code , RSC 1985, c C-46 , namely, that he did: (

a) have in his possession child pornography, contrary to s. 163.1(4); (

b) access child pornography, contrary to s. 163.1(4.2); and (

c) make child pornography, contrary to s. 163.1(2). The trial judge entered acquittals on charges of sexual assault (s. 271) and sexual touching (s. 151) and stayed a second charge of making child pornography (s. 163.1(2)) (see: R v Rhode , 2015 SKQB 353 ). [ 2 ] After a sentencing hearing ( R v Rhode , 2016 SKQB 330 ), the trial judge designated Mr. Rhode a long-term offender [LTO], sentenced him to three concurrent six-year terms of imprisonment and imposed a ten-year long-term supervision order [LTSO]. The trial judge credited 31.5 months against the global sentence for the time Mr. Rhode had spent on remand.

Mr. Rhode is also made subject to a lifetime order under the Sex Offender Information Registration Act , SC 2004, c 10 , and DNA and prohibition orders pursuant to ss. 487.051 and 161 of the Criminal Code . [ 3 ] Mr. Rhode’s notice of appeal raised five grounds for setting aside his convictions. He has abandoned his second ground, under which he had sought a judicial stay of his charges pursuant to ss. 24(1) and (2) of the Charter .

The remaining grounds address an alleged violation of s. 8 of the Charter (seeking the exclusion of evidence under s. 24(2)), impugn the admission of “bad character” evidence, challenge the judge’s

interpretation of what constitutes making child pornography in the circumstances of this case, and allege a judicial stay of proceedings was appropriate due to unreasonable delay under s. 11(

b) of the Charter based on the principles espoused in R v Jordan , 2016 SCC 27 , [2016] 1 SCR 631. [ 4 ] In respect of his sentence appeal, Mr. Rhode asserts that his sentence is demonstrably unfit, reflects an improper emphasis on one or more of the objectives of sentencing and a failure to consider properly the objective of rehabilitation, and is not proportionate to the gravity of the offences and his degree of responsibility.

He also says the trial judge failed to consider the timing of the offences and how that related to amendments to s. 163.1 of the Criminal Code , which increased the maximum sentences available, or, if the trial judge did consider those amendments, he failed to provide sufficient reasons for the sentences he imposed. Lastly, while Mr.

Rhode’s notice of appeal does not directly impugn the LTO designation or the duration of his LTSO, he has also disagreed with his designation as an LTO. [ 5 ] Having reviewed the trial and sentencing decisions and the transcripts of those proceedings and having heard the submissions of counsel, I find no tenable basis upon which to interfere with the convictions entered after trial. I would dismiss the conviction appeal.

However, I find the trial judge erred by failing to address amendments to relevant Criminal Code sentencing provisions thereby leading himself to impose illegal sentences on the convictions for possessing and accessing child pornography. Those sentences must be varied. That error did not affect the concurrent six-year sentence the trial judge imposed on the conviction for making child pornography and, although it is severe, I am not persuaded it is demonstrably unfit. I would, therefore, allow the sentence appeal, but only to vary the two illegal sentences to concurrent terms of 4.5 years each.

II. BACKGROUND [6] I do not propose to set out the factual background to this appeal in any detail. Where necessary, I address the specificevidence or facts of this matter under the allegations of error raised by Mr. Rhode. [7] In simple terms, members of the Saskatoon Police Service seized Mr. Rhode’s computers and other electronic devices,searched them and discovered multiple images and videos of what they considered to be child pornography. Mr.

Rhode had created someof the video and images, some of which depicted him masturbating to pre-existing video or images of young female children engaged insexual activities. [8] On the basis of what the police seized, the evidence against Mr. Rhode on the charges of accessing and possessing childpornography was, as the trial judge observed, “overwhelming.” The evidence of making child pornography was somewhat less sobecause it turned on the trial judge’s

interpretation of what constituted child pornography for the purposes of that charge. In that regard,the trial judge concluded the materials Mr. Rhode had created constituted child pornography within the meaning of ss. 163.1(1) and163.1(2) of the Criminal Code. However, on the charges of sexual assault and sexual interference, the trial judge held a reasonable doubtas to Mr. Rhode’s guilt, as he could not conclude Mr. Rhode had touched the complainant “in circumstances of a sexual nature.” [9] As to sentence, the Crown applied under

Part XXIV of the Criminal Code to have Mr. Rhode designated as an LTO. Aforensic psychiatrist examined Mr. Rhode for that purpose. In his expert report and testimony, the psychiatrist noted Mr. Rhode admitshe is and always has been sexually attracted to young girls. Mr. Rhode has previously been convicted and has served sentences foraccessing and possessing child pornography. The expert evidence indicated Mr. Rhode’s prior participation in sexual-offenderprogramming had not curbed his sexual attraction to young female children. [10] With that, I turn to address the two appeals brought by Mr. Rhode. III.

CONVICTION APPEAL [11] Addressing the conviction appeal, I find no error on the part of the trial judge that would entitle this Court to intervene and setaside the convictions. As noted, Mr. Rhode maintains the trial judge committed four errors that affected the outcome of his trial, namely: (

a) erroneous failure to find a breach under s. 8 of the Charter; (

b) improper admission of bad character evidence; (

c) erroneous

interpretation of “child pornography”; and (

d) erroneous failure to find unreasonable delay. A.

Section 8 of the Charter [12] The police obtained judicial authorisation before they searched Mr. Rhode’s home and electronic devices for evidence.However, an accused may challenge a search warrant for defects of substance appearing on its face or on the basis that the informationused to obtain the warrant [ITO] did not justify the warrant’s issuance. If a warrant is bad by reason of defects in the ITO, the search isunlawful, thereby violating s. 8 of the Charter. The evidence seized through the exercise of a bad warrant may be excluded under s.24(2) of the Charter. [13] In this case, in a pretrial motion, Mr.

Rhode (through his counsel at the time) indicated he wanted to raise potential issues withthe validity of the search warrant under the authority of which the police had searched his home and seized all of his electronic devices.Mr. Rhode did not identify any flaws on the face of the warrant. Further, the evidence did not suggest the police had failed to complywith the terms of the warrant. Rather, Mr. Rhode simply sought to identify at the outset the issue of warrant validity with a view toaddressing it later at trial after the Crown’s evidence had been adduced. For that purpose, at this preliminary stage, Mr.

Rhode soughtpermission to cross-examine the ITO affiant, a police sergeant. The trial judge rejected this request and Mr. Rhode now says the trialjudge erred by doing so. [14] As Mr. Rhode acknowledges, there is no automatic right to cross-examine an ITO affiant. The accused must first demonstratethat cross-examination is necessary for the accused to make full answer and defence (R v Garofoli, (SCC), [1990] 2 SCR1421 at 1465). That is, the accused must show that cross-examination “will elicit testimony tending to discredit the existence of one ofthe preconditions to the authorization” (R v Garofoli at 1465).

If permitted, the cross-examination will be limited to questions directed toestablishing that no basis existed upon which the authorising judge could have granted the warrant (R v Garofoli at 1465). Because thereare limited ways to set aside a warrant, there is a correspondingly narrow window for cross-examination of an ITO affiant (R v Victoria,2018 ONCA 69 at para 76, 359 CCC (3d) 179).

Moreover, when considering a request for leave to cross-examine an ITO affiant, thereviewing judge must always have in mind the ultimate question, which is simply whether the authorising judge could have issued thewarrant on the ITO notwithstanding the alleged defects, i.e., “whether there continues to be any basis for the decision of the authorizingjudge” (R v Garofoli at 1452). For these reasons, the Supreme Court has said that “leave to cross-examine is not the general rule” (R vGarofoli at 1465). [15] In this appeal, Mr.

Rhode asserts the denial of his request to cross-examine the ITO affiant meant he could not explore theextent of “[p]olice dealings and search.” By the reference in his factum to R v Spencer, 2014 SCC 43, [2014] 2 SCR 212, I take Mr.Rhode as alleging the police unlawfully obtained his name and physical address by cross-referencing his internet protocol addressagainst subscriber records voluntarily disclosed to the police by his internet service provider. However, when this point was raised before

the trial judge at the pretrial stage, R v Spencer was still on reserve at the Supreme Court of Canada. More importantly, Mr. Rhode hadsought to distinguish R v Spencer, 2011 SKCA 144, 377 Sask R 280, such that R v Trapp, 2011 SKCA 143, 377 Sask R 246, would haveapplied. In the end, his counsel at the time concluded Mr. Rhode’s request for leave to cross-examine the ITO affiant was not broadenough to encompass a Charter challenge to the internet service provider’s disclosure of Mr. Rhode’s name and physical address. That isto say, the cross-examination proposed by Mr.

Rhode and denied by the trial judge did not involve a request for leave to cross-examineon this point. Further, the trial judge understood that, under R v Trapp, the internet service provider could legally disclose theinformation requested of it. Finally, as the transcript discloses, the trial judge ultimately held the view that the ITO contained sufficientinformation from other sources to conclude the authorising judge could have issued the warrant even without the information obtainedthrough the disclosure by Mr. Rhode’s internet service provider. [16] Mr.

Rhode also raises the fact the police had employed a ruse to execute the search warrant. It seems a police officer dressedas a City of Saskatoon utilities employee knocked on Mr. Rhode’s door and, when the knock was answered, a uniformed police officerpresented the warrant and thereafter the police searched Mr. Rhode’s home, seizing his electronic devices. However, prior to trial, Mr.Rhode had argued against delving into this circumstance because he saw it as addressing execution of the warrant, not its validity. Thetrial judge agreed and let the Crown’s witness on that point stand down.

Given these circumstances, it does not now lie in Mr. Rhode’smouth to say on appeal that the trial judge somehow erred by acceding to Mr. Rhode’s own arguments and position. Moreover, Mr.Rhode does not say how this opening gambit by the police could have affected the validity of the warrant. [17] In the pretrial motion, Mr. Rhode’s position had been to assert that the Crown ought to produce the ITO affiant for cross-examination because the ITO contained superfluous information that he speculated might have prejudiced the authorising judge. Thetrial judge addressed this contention, finding Mr.

Rhode had not pointed to anything in the ITO that was factually inaccurate and,moreover, even if the impugned information were disregarded, there were ample grounds in the ITO to support the authorisation of asearch warrant. That is, the trial judge, with the whole of the ITO in mind, concluded that, even with the impugned informationextracted, there remained ample basis upon which the authorising judge could have granted the warrant. [18] In the appeal hearing, Mr.

Rhode also took issue with the fact that the ITO affiant had been involved in the prosecution of Mr.Rhode for prior child pornography and other offences. He argued this had coloured the ITO, or the way in which the ITO affiant hadcharacterised matters in the ITO, which ultimately led the reviewing judge to err. The general thrust of this line of reasoning being thatthe ITO affiant was predisposed to see Mr. Rhode in a bad light (since she knew he had a deviant sexual interest in young girls), that hernegative view of Mr.

Rhode was reflected in the ITO information (and had made things seem worse than they might have otherwiseseemed), and that the ITO (having been illuminated in that bad light) led the authorising and reviewing judges to misperceive Mr. Rhodein an overly-negative way (thereby undermining the justification for the warrant and the denial of leave to cross-examine the ITOaffiant). Mr.

Rhode further developed this argument under other of his grounds for appealing against his conviction and sentence.However, under this ground, it is sufficient to reiterate that, regardless of how the information in the ITO had been characterised, the trialjudge found Mr. Rhode had not pointed to anything in it that was factually inaccurate. [19] Having read the ITO and the transcripts and having considered Mr. Rhode’s arguments, I am not persuaded the ITOcontained anything that was factually inaccurate or misleading.

Moreover, I find the proposed cross-examination about superfluousinformation being contained in the ITO self-evidently could not have undermined the warrant authorisation. When a proposed cross-examination is unlikely to assist the reviewing judge to decide whether there is any basis upon which the authorising judge could havegranted a search warrant, leave to cross-examine should be refused (R v Victoria at para 77; R v Pires and Lising, 2005 SCC 66 at paras68–69, [2005] 3 SCR 343). [20] In short, I am not persuaded the trial judge erred by rejecting Mr.

Rhode’s request for leave to cross-examine the ITO affiant.The trial judge’s discretionary decision to refuse leave was not borne of an error in principle, disregard of a material matter of fact or afailure to act judicially, and the resulting denial of leave is not so plainly wrong as to amount to an injustice. Where discretion has beenexercised judicially, this Court is not permitted to interfere with a trial judge’s decision to deny leave to cross-examine an ITO affiant (Rv Garofoli at 1465). [21] As there was no breach under s. 8 of the Charter, there is no need to consider Mr.

Rhode’s consequent claim to relief under s.24(2) in this case. B. Admission of bad character evidence [22] Under this ground, Mr. Rhode alleges the trial judge erred by improperly admitting certain materials into evidence. Mr.Rhode had objected to the admission of a number of items, namely, a posting on his blog (Exhibit P-3); a series of photographs (ExhibitP-9); some notes (Exhibit P-10); a letter written ostensibly by his daughter (Exhibit P-11); a collection of erotica that involved childrenbut did not meet the definition of child pornography (Exhibit P-13); and a so-called homework document (Exhibit P-14).

Of these, thetrial judge admitted four into evidence, namely, Exhibits P-3, P-9, P-11 and P-14. [23] In general terms, all of the impugned materials were prejudicial to Mr. Rhode because they suggested he was the type ofindividual who would commit criminal offences of a sexual nature with respect to young female children.

However, some of thematerials were not terribly probative of the issue of whether he had committed the offences with which he had been charged. [24] In general terms, evidence is not admissible for the purpose of establishing that the accused is the type of person who wouldcommit the offences with which he or she has been charged due to the dangers of propensity reasoning. Nonetheless, evidence of thatnature is admissible if it is probative of an issue at trial, which can include the accused’s motive to commit an offence (R v G. (S.G.), (SCC), [1997] 2 SCR 716 at paras 63–64 and 119–121). [25] Mr.

Rhode does not approach this ground of appeal by alleging the trial judge engaged in propensity reasoning. Rather, Mr.Rhode complains of a number of procedural errors or mistakes thereby invoking this Court’s powers to intervene where a miscarriage ofjustice has occurred (Criminal Code, s. 686(l)(a)(iii)). He argues in his factum that there exists “a general presumption that evidence ofan accused’s character is not admissible unless an accused first opens the door [to it]” and he says that door had not been opened in this

case. He takes issue with the process, saying he received no formal notice from the Crown that it was proposing to tender evidence ofbad character. Mr. Rhode likens the circumstances to trial by ambush, asserting his trial counsel had no time to prepare to address issuessuch as similar fact evidence or bad character evidence. He says there is no point in defence counsel participating in pretrial managementconferences if the Crown is “allowed to ambush the defence at trial.” In his factum, Mr.

Rhode uses his procedural criticisms to assertthe Crown’s tactics entitled him to an adjournment because they impaired his ability to make full answer and defence and his right to afair trial. [26] However, the circumstances do not bear out an impairment of Mr. Rhode’s ability to make full answer and defence or calltrial fairness into question. For example, at the outset of the trial, when the Crown had raised the issue, Mr. Rhode’s counsel told thejudge: “[The prosecutor] alerted me the middle of last week to this particular issue.

And I’ve spent some time researching it.” Theprosecutor had already advised the trial judge that counsel had had “preliminary discussions” about the evidence, wherein it appearsthey had both agreed to tender it in a voir dire, subject to a determination on admissibility. Mr. Rhode’s counsel argued the trial judgewas not dealing with similar fact evidence, but only “general evidence of bad character” that had to be assessed for its admissibility.Lastly, Mr. Rhode did not seek an adjournment at that time.

Rather, his counsel advised the trial judge that “we are in the appropriateprocedural mechanism for [making a decision on admissibility] ..., as my friend said, we’ll argue about it at the end of the day, instead oftoday.” Given this, there is little merit to Mr. Rhode’s procedural criticisms. [27] As to the merit of this ground itself, the Crown argued in the voir dire that the evidence was probative of Mr.

Rhode’s mensrea, but narrowed that argument in some respects to his intention to commit the sexual assault and sexual interference offences.Moreover, the Crown asserted that some of the evidence amounted to an admission to accessing and possessing child pornographybecause that evidence was itself child pornography, namely, Exhibits P-3 and P-11—that is, it was highly probative evidence. [28] The trial judge accepted that Exhibit P-14 was relevant to Mr.

Rhode’s intention or motive when he had touched thecomplainant, namely, whether he had done that for a sexual purpose, even though sexual assault and sexual interference do not require asexual purpose intention (R v Chase, (SCC), [1987] 2 SCR 293).

However, it simply cannot be said the trial judgeengaged in propensity reasoning with respect to the sexual assault and sexual interference charges because the trial judge acquitted Mr.Rhode of those offences notwithstanding the admission of Exhibit P-14 into evidence. [29] On the whole of it, I find nothing in the transcript or the trial judge’s reasons to indicate that he actually relied on any of theimpugned evidence when reaching his verdicts of guilty on the charges under s. 163.1 of the Criminal Code. There is no doubt that theevidence in question suggests Mr. Rhode is sexually attracted to female children.

But, as to the offences of accessing, possessing andmaking child pornography, the other evidence at trial overwhelmingly established Mr. Rhode’s guilt. Frankly, given the volume andstrength of the evidence that went directly to Mr. Rhode’s guilt on those charges, there was simply no room for the trial judge to havehad resort to propensity reasoning. [30] In the end, I am unable to conclude anything in the way in which this issue arose before the trial judge, or as it was addressedby the trial judge, gave rise to error. C.

Interpretation of child pornography [31] This challenge relates to the evidence relied upon by the trial judge to convict Mr. Rhode on the charge that he had made childpornography. That verdict rested on three series of electronic videos or images, which the trial judge referred to as the laptop scenariovideos and still images, the photoshop image and the blue dress image [together, image files]. For consistency, I use those same terms inthese reasons. [32] An error as to whether Mr.

Rhode had made the image files or as to whether they were child pornography would undoubtedlyrelate to a finding of fact essential to the verdict on the s. 163.1(2) charge. As such, the question is whether the trial judge’s findings areplainly contradicted by the evidence relied on in support of those findings or are incompatible with evidence that has not otherwise beencontradicted or rejected by the trial judge (see: R v R.P., 2012 SCC 22 at paras 9 and 10, [2012] 1 SCR 746). [33] As to who had made them, each image file depicted a nude Mr.

Rhode and, for that reason, it was open to the trial judge tofind, and he had no hesitation finding, Mr. Rhode had made them. Furthermore, no evidence adduced at trial was inconsistent with thisfinding or contradicted it. As such, there is no basis upon which to say the trial judge erred in his finding that Mr. Rhode had made theimage files. [34] The next question is whether the image files were in fact child pornography within the meaning of s. 163.1(1) of the CriminalCode, which involves the

interpretation of that term: 163.1(1) In this section, child pornography means (

a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means, (

i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged inexplicit sexual activity, or (ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under theage of eighteen years; (

b) any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age ofeighteen years that would be an offence under this Act; (

c) any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under theage of eighteen years that would be an offence under this Act;

(

d) any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act. [ 35 ] In his reasons for judgment, after quoting only s. 163.1(1) (

a) and ruling out a personal use exception (see: R v Sharpe , 2001 SCC 2 , [2001] 1 SCR 45), the trial judge cited a short passage from R v Meikle , [2011] OJ No 4151 (QL) (Ct J) , where the Ontario court had very briefly explored what Parliament meant to capture by using the term sexual purpose in s. 163.1(1) .

Following this, the trial judge summarised his understanding of the definition of child pornography in this way: [24] In my view, any image created for the clear purpose of appealing to the prurient interest of a pedophile or involving the sexual degradation of a child is sufficient to bring such image within the definition of child pornography. [25] The court should not craft too narrow a definition of child pornography so as to limit the ability of police authorities to prosecute the evil that is child pornography. [ 36 ] Then, turning to the image files themselves, the trial judge found the laptop scenario video and images contained other video or images that were themselves undoubtedly child pornography (this was conceded at trial by Mr.

Rhode) and that all three series of image files depicted young female children as sexual objects and advocated sexual activity with children. [ 37 ] Of the laptop scenario image files, the trial judge found Mr. Rhode had added himself to one or more videos of victimised children and the video and 13 images he created showed him enjoying the abuse of the child depicted in the underlying video. He said that, to any “reasonable viewer”, the image files sought to “excite those drawn to child pornography” (at para 21). Of the photoshop image file, while Mr.

Rhode’s hand covered a little girl’s pelvic region (with no exposure of her genitals or anus), the trial judge wrote the image file “was created for a sexual purpose by a pedophile who is interested in young girls to create sexual stimulation for Mr. Rhode” (at para 26) and that it was “demonstrably child pornography” (at para 27). Of the blue dress image file, which depicted Mr.

Rhode masturbating while looking at the image of a young girl clothed in a blue dress, the trial judge wrote that it was “clearly designed for a sexual purpose and clearly for the purpose of providing stimulation to a pedophile by means of the sexual degradation of the little girl in the blue dress” (at para 29). [ 38 ] Unfortunately, the trial judge seems to have only addressed one aspect of s. 163.1(1) (

a) and, in doing so, he largely reframed it in an overly-simplistic way. Parliament’s definition is much more nuanced, as is evident from the decision in R v Sharpe , where McLachlin C.J.C. summarised the majority’s

interpretation of s. 163.1(4) in this way (at para 128): ... 1. The offence prohibits the possession of photographs, film, videos and other visual representations that show or depict a person under the age of 18 engaged in explicit sexual activity. Visual representations of any activity that falls short of this threshold are not caught. Thus, representations of casual intimacy, such as depictions of kissing or hugging, are not covered by the offence. 2.

The offence prohibits the possession of visual representations that feature, as a dominant characteristic, the depiction of a sexual organ or the anal region of a person under the age of 18 for a sexual purpose. Innocent photographs of a baby in the bath and other representations of non-sexual nudity are not covered by the offence. 3. The offence prohibits the possession of written or visual material that actively induces or encourages unlawful sexual activity with persons under the age of 18. Written description that falls short of this threshold is not covered by the offence. 4.

Courts should take an objective approach to determining whether material falls within the definition of child pornography. The question is whether a reasonable person would conclude, for example, that the impugned material portrays “explicit” sexual activity, or that the material “advocates or counsels” sexual offences with persons under 18. Courts should also take an objective approach in determining the availability of any statutory defence. 5.

The various statutory defences (i.e., artistic merit; educational, scientific or medical purpose; and public good) must be interpreted liberally to protect freedom of expression, as well as possession for socially redeeming purposes. 6. The guarantees provided in ss. 2(

b) and 7 of the Charter require the recognition of two exceptions to s. 163.1(4), where the prohibition’s intrusion into free expression and privacy is most pronounced and its benefits most attenuated: (

a) The first exception protects the possession of expressive material created through the efforts of a single person and held by that person alone, exclusively for his or her own personal use. This exception protects deeply private expression, such as personal journals and drawings, intended solely for the eyes of their creator. (

b) The second exception protects a person’s possession of visual recordings created by or depicting that person, but only where these recordings do not depict unlawful sexual activity, are held only for private use, and were created with the consent of those persons depicted. 7. These two exceptions apply equally to the offence of “making” child pornography under s. 163.1(2). 8.

Neither exception affords protection to a person harbouring any other intention than private possession; any intention to distribute, publish, print, share or in any other way disseminate these materials will subject a person to the full force of s. 163 .1. (Emphasis in original) [ 39 ] Nonetheless, I am not persuaded the trial judge’s finding of fact on the actus reus —i.e., that Mr. Rhode had made child pornography—is in error. I say that because, given the trial judge’s description of them, the laptop scenario image files undoubtedly met the definition of child pornography under s. 163.1(1) (a)(

i) as a visual representation “that shows a person who is or is depicted as being

under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity.” Further, while the two otherimage files may not meet either definition under s. 163.1(1)(a), the trial judge’s findings mean they are each a “visual representation ...that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under [the CriminalCode]” pursuant to s. 163.1(1)(b). In the language of R v Sharpe, all of the image files are “visual material that actively induces orencourages unlawful sexual activity with persons under the age of 18.” [40] That is, regardless of any misstep in the trial judge’s

interpretation of the definition for child pornography under s. 163.l(l)(a),the image files in question satisfy the definition of child pornography under either s. 163.1(1)(a)(

i) or s. 163.1(1)(

b) of the CriminalCode. In short, nothing in this appeal has persuaded me that the trial judge’s findings of fact themselves are in error. D. Unreasonable delay [41] Although not pursued in the hearing before us, Mr. Rhode raised the issue of delay in his notice of appeal and factum. At theconclusion of his sentencing hearing, Mr. Rhode had applied for a judicial stay of proceedings on the basis that his right to be triedwithin a reasonable time—guaranteed by s. 11(

b) of the Charter—had been infringed. I take Mr. Rhode as submitting that, because theoverall time between his charges and sentence amounted to 41 months, the presumptive 30-month ceiling set out in R v Jordan has beenexceeded and his charges ought to have been stayed. In his factum, he argued two points: (

i) that the trial judge erred by concluding R vJordan did not apply to

Part XXIV proceedings or to transitional cases; and (ii) that the trial judge failed to provide sufficient reasons forhis determination on the issue of unreasonable delay. [42] In his decision, the trial judge identified R v Jordan and its presumptive 30-month ceiling, recognised that 41 months hadpassed between the time the charges had been laid (April 2013) and the sentencing (September 2016), and, therefore, understood that hehad to examine the issue of delay. After his review of the record, the trial judge concluded Mr. Rhode had been solely responsible forjust over one year of delay. He speculated that Mr.

Rhode had been responsible for additional delay early in the proceedings, but foundfurther review unnecessary because, by his calculation, deducting the delay he had attributed to Mr. Rhode left 29 months between thecharges and the sentencing, which the trial judge noted was under the presumptive 30-month ceiling. After reviewing R v Jordan, andparticularly what the Court had said there about addressing transitional cases like this one, the trial judge found no unreasonable delay. [43] During his review, the trial judge remarked that R v Jordan and s. 11(

b) of the Charter do not apply to sentencingproceedings. While s. 11(

b) of the Charter does apply to sentencing proceedings (R v Jordan at para 49; R v MacDougall, (SCC), [1998] 3 SCR 45 at paras 15 and 18), it is true that R v Jordan does not establish a 30-month presumptive ceiling in thecontext of delay in sentencing (at footnote 2, quoted below; see also: R v S.C.W., 2018 BCCA 346, 49 CR (7th) 118). Moreover,notwithstanding his remarks about s. 11(

b) and sentencing, the trial judge found the time between charges and sentencing adjusted fordelay attributable to Mr. Rhode was 29 months—i.e., less than the presumptive 30-month ceiling. [44] Nonetheless, the majority in R v Jordan said delay may be unreasonable even if it falls below the presumptive 30-monthceiling (at para 82). In such cases, the accused bears the onus of showing the delay is unreasonable by establishing two things: (

i) thatthe accused “took meaningful steps that demonstrate a sustained effort to expedite the proceedings”; and (ii) that the case “tookmarkedly longer than it reasonably should have.” In R v Jordan, the majority said a s. 11(

b) application must fail absent either of thesefactors (at para 82). Importantly in this regard, Mr. Rhode had adduced no evidence in support of his application. [45] On the basis of the record, 12 of the 41 months in question are, as the trial judge found, attributable to delay of Mr. Rhode’sown making. I particularly refer to the fact Mr. Rhode’s trial had been scheduled to proceed in October 2014, but his then counsel hadbeen granted leave to withdraw and Mr. Rhode did not retain new counsel until February 2015. The endorsements on the court fileindicate this delay was to be attributed solely to Mr. Rhode.

As a result, the trial was held a year later in November 2015, with verdictspronounced on November 13, 2015. Both counsel then asked for an adjournment—the Crown so it could consider a

Part XXIVapplication and the defence to obtain the benefit of a pre-sentence report and risk assessment. The trial judge acceded to these requestsand adjourned the matter to be spoken to a month later on December 21, 2015. On that date, the Crown sought to have Mr. Rhodeassessed pursuant to s. 752.1 of the Criminal Code. The trial judge appointed Dr. Lohrasbe to conduct the assessment and Dr. Lohrasbeinterviewed Mr. Rhode on January 25 and 26, 2016, and Mr. Rhode’s wife on February 22, 2016. Dr. Lohrasbe filed his report with thecourt on March 16, 2016. Thereafter, the Crown elected to proceed with a

Part XXIV application and sentencing was scheduled forSeptember 2016. The sentencing hearing proceeded between September 12 and 14, 2016. Given this timeline, I have no hesitationconcluding the matter did not “markedly [exceed] the reasonable time requirements of the case” (R v Jordan at para 87). [46] As noted, Mr. Rhode also asserted that the trial judge’s reasons for dismissing his s. 11(

b) Charter application were deficient.As is by now evident, I find they were not. The trial judge’s decision serves the purpose for which the duty to provide sufficient reasonsis imposed, i.e., having regard to the particular circumstances of this case, the decision is intelligible and provides the basis formeaningful appellate review of the correctness of the trial judge’s decision (R v Sheppard, 2002 SCC 26 at para 55, [2002] 1 SCR 869).There is no merit to this allegation of error. [47] Because the presumptive ceiling had not been exceeded and because Mr. Rhode had failed to discharge the onus on him inthat circumstance, I have not directly addressed the issue of s. 11(

b) and

Part XXIV proceedings. I note, however, that in a footnote to R vJordan, the majority of the Supreme Court said: This Court has held that s. 11(

b) applies to sentencing proceedings (R. v. MacDougall, (SCC), [1998] 3 S.C.R. 45).Some sentencing proceedings require significant time, for example, dangerous offender applications or situations in which expert reportsare required, or extensive evidence is tendered. The issue of delay in sentencing, however, is not before us, and we make no commentabout how this ceiling should apply to s. 11(

b) applications brought after a conviction is entered, or whether additional time should beadded to the ceiling in such cases. Although an outstanding issue under R v Jordan, the question of whether or how the presumptive 30-month ceiling should apply whenPart XXIV proceedings are engaged at sentencing must still be left to another day.

[48] Despite the trial judge’s erroneous understanding as to the application of s. 11(

b) to sentencing hearings, his bottom-linefinding that the time between charges and sentencing did not exceed the 30-month ceiling established in R v Jordan was correct.Therefore, the onus fell to Mr. Rhode to establish the overall time, as adjusted, between charges and sentencing was unreasonable and hedid not adduce any evidence to address that point. Moreover, the matter did not markedly exceed the reasonable time requirements of thecase. [49] As such, I would not interfere with the trial judge’s decision to dismiss the application under s. 11(

b) of the Charter. E. Conclusion on conviction appeal [50] I find no basis upon which to interfere with the verdicts of guilt or the judgment of the trial judge convicting Mr. Rhode oncharges of accessing, possessing and making child pornography. The conviction appeal must be dismissed. IV. SENTENCE APPEAL [51] Mr. Rhode framed his sentence appeal under several grounds. He also asserted in his written materials and orally before theCourt that his LTO designation was not merited in the circumstances. I will address that assertion first. A. LTO designation [52] Although not raised in his notice of appeal, Mr.

Rhode argued before us that his designation as an LTO was not merited in thecircumstances. In making this assertion, he picked up on his earlier allegation that the ITO affiant’s characterisation of the ITO hadtainted the trial judge’s view of Mr. Rhode. [53] A dangerous offender or LTO determination made under

Part XXIV of the Criminal Code is a finding of fact (R v Currie, (SCC), [1997] 2 SCR 260 at para 44). In appeals against such a determination, absent an error of law, the standard ofappellate review is reasonableness (see: Criminal Code, s. 759(1); R v Currie at paras 33–35). [54] In

Part XXIV proceedings, the sentencing court may designate an offender as an LTO if the court is satisfied beyond areasonable doubt that: (

i) the predicate offence merits a sentence of at least two years’ imprisonment; (ii) there is a substantial risk theoffender will reoffend; and (iii) there is a reasonable possibility of eventual control of that risk in the community (Criminal Code, s.753.1). [55] Given the predicate convictions in this case were not Mr. Rhode’s first convictions for child pornography offences, the trialjudge had no hesitation concluding the first of the requirements had been satisfied, namely, that the predicate offences merited a sentenceof at least two years’ imprisonment (s. 753(l)(a)).

In the circumstances, I find no error in that conclusion. [56] The second requirement speaks to the necessity of a substantial risk the offender will reoffend (s. 753(1)(b)). In this respect,the nature of the reoffending for LTO proceedings differs from dangerous offender proceedings. Dangerous offender proceedings mustfollow a conviction for a serious personal injury offence as defined in s. 752 of the Criminal Code; lesser offences do not satisfy itsrequirements. However, an application to have an offender declared an LTO does not require conviction on a serious personal injuryoffence.

In LTO proceedings, the court must have first convicted the offender of one of the offences enumerated in s. 753.1(2)(

a) or havefound that the offender has engaged in “serious conduct of a sexual nature in the commission of another offence of which the offenderhas been convicted.” [57] In particular terms, s. 753.1(2) says the sentencing court shall be satisfied a substantial risk exists if: (

a) the offender has been convicted of an offence under

section 151 (sexual interference), 152 (invitation to sexual touching) or 153(sexual exploitation), subsection 163.1(2) (making child pornography), 163.1(3) (distribution, etc., of child pornography), 163.1(4)(possession of child pornography) or 163.1(4.1) (accessing child pornography),

section 170 (parent or guardian procuring sexualactivity), 171 (householder permitting sexual activity), 171.1 (making sexually explicit material available to child), 172.1 (luring a child)or 172.2 (agreement or arrangement-sexual offence against child), subsection 173(2) (exposure) or

section 271 (sexual assault), 272(sexual assault with a weapon) 273 (aggravated sexual assault) or 279.011 (trafficking-person under 18 years) or subsection 279.02(2)(material benefit-trafficking of person under 18 years), 279.03(2) (withholding or destroying documents-trafficking of person under 18years), 286.1(2) (obtaining sexual services for consideration from person under 18 years), 286.2(2) (material benefit from sexual servicesprovided by person under 18 years) or 286.3(2) (procuring-person under 18 years), or has engaged in serious conduct of a sexual naturein the commission of another offence of which the offender has been convicted; and (

b) the offender (

i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows alikelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons, or (ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted,has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences. [58] The child pornography offences under s. 163.1 of the Criminal Code were added to the list of offences enumerated in s.753.1(2)(

a) under the Criminal Law Amendment Act, 2001, SC 2002, c 13, s 76. As the predicate offences in this case were added beforeMr. Rhode committed them, the first part of the inquiry under s. 753.1(2) is satisfied. [59] The second part of the inquiry (under s. 753.1(2)(b)) calls for an assessment of Mr. Rhode’s conduct and, particularly,

whether he has shown a likelihood of causing injury, pain or other evil in the future through similar offences. When addressing this part of the inquiry, the trial judge first observed it was not debatable that child pornography offences brought about injury, pain or other evil to other persons, writing: [22] As to the issue of “injury, pain or other evil”, the concept is present and not in debate.

Justice L’Heureux-Dubé in R v Sharpe , 2001 SCC 2 at para 158 , [2001] 1 SCR 45 states: 158 The very existence of child pornography, as it is defined by s. 163.1(1) of the Criminal Code , is inherently harmful to children and to society. This harm exists independently of dissemination or any risk of dissemination and flows directly from the existence of the pornographic representations, which on their own violate the dignity and equality rights of children.

The harm of child pornography is inherent because degrading, dehumanizing, and objectifying depictions of children, by their very existence, undermine the Charter rights of children and other members of society. Child pornography eroticises the inferior social, economic, and sexual status of children. It preys on pre-existing inequalities. [ 60 ] Judge Kalmakoff (as he then was) in R v Hudec , 2016 SKPC 16 , addressed circumstances very similar to those of Mr.

Rhode and also found that, even if there were no risk of the offender committing “contact” offences in the future, “the high risk that [the offender] poses for committing further child pornography-related offences clearly amounts to a risk of causing ‘injury, pain or other evil to other persons’, within the meaning of s. 753.1(2)(b)(ii).” In reaching this conclusion, Kalmakoff P.C.J. also referred to the reasons of L’Heureux-Dubé J. in R v Sharpe (see also: R v McTurk , 2015 ONCJ 63 at para 70 ; R v Rotman , 2015 ONCA 663 , 339 OAC 266). [ 61 ] While L’Heureux-Dubé J. wrote for the minority in R v Sharpe , the conclusion reached by the trial judge in this case as to the harms wrought by child pornography is also supported by the majority reasons of McLachlin C.J.C. in that case (at paras 84–94).

Although she was addressing the constitutionality of s. 163.1 of the Criminal Code , McLachlin C.J.C. had this to say about the evils associated with s. 163.1 offences: [28] This brings us to the countervailing interest at stake in this appeal: society’s interest in protecting children from the evils associated with the possession of child pornography. Just as no one denies the importance of free expression, so no one denies that child pornography involves the exploitation of children.

The links between possession of child pornography and harm to children are arguably more attenuated than are the links between the manufacture and distribution of child pornography and harm to children. However, possession of child pornography contributes to the market for child pornography, a market which in turn drives production involving the exploitation of children. Possession of child pornography may facilitate the seduction and grooming of victims and may break down inhibitions or incite potential offences.

Some of these links are disputed and must be considered in greater detail in the course of the s. 1 justification analysis. The point at this stage is simply to describe the concerns that, according to the government, justify limiting free expression by banning the possession of child pornography. (Emphasis in original) [ 62 ] Turning to the likelihood of reoffending, the trial judge found the evidence, including Dr. Lohrasbe’s expert evidence, established that Mr. Rhode poses a high risk to commit the offences of accessing and possessing child pornography in the future. By referencing passages from Dr.

Lohrasbe’s report, the trial judge observed that Mr. Rhode identifies paedophilia or sexual arousal focused on children as “problematic” not because children are at risk, but because it drives his pursuit of child pornography, which gets him into legal trouble. Mr. Rhode does not consider his paedophilia to be causing harm. Mr. Rhode does not see paedophilia as being synonymous with sexual offending. [ 63 ] As to the risk posed by Mr. Rhode, the trial judge cited the following passages from Dr. Lohrasbe’s report: Mr. Rhode has a lengthy history of accessing and viewing child pornography.

It has not been a transient indulgence. Patterns of stimulation that lead to sexual arousal and release, which are intensely pleasurable, tend to be self-reinforcing. Hence, unless there are good reasons to believe otherwise, the expectation should be that he will access and view child pornography again if given the opportunity to do so. There are additional reasons to anticipate an ongoing risk for accessing child pornography. Mr. Rhode had a very unpleasant experience during his prior incarceration. An intelligent man, Mr. Rhode knew what he faced if he reoffended.

Clearly, criminal sanctions were insufficient to ensure desistance. Moreover, he also had an intellectual understanding of at least some of his risk factors. He has explored the basics of his offense [ sic ] chain on his own and had also participated in both individual and group therapy. Although he has not had the benefit of the kind of intense programs available within correctional institutions, similar treatment principles are used in out-of-custody programs are [ sic ]. So far, treatment programs have been insufficient to ensure desistance. Perhaps most importantly, Mr.

Rhode had the benefit of the love and strong support from his spouse. This is rare among sexual offenders. It was insufficient to ensure desistance. Hence, as things stand, Mr. Rhode is at high risk for further possession and viewing of child pornography in the foreseeable future, an opinion based on the length and persistence of his use of child pornography as well as its continuation despite the presence of both ‘positive’ and ‘negative’ motivations to desist. [ 64 ] Mr.

Rhode has not alleged the trial judge erred in respect of the third requirement under s. 753.1(1), namely, a reasonable possibility of eventual control of the offender’s risk in the community. In that regard, the trial judge wrote: [25]

Section 753.l(l)(

c) of the Criminal Code requires the court to consider whether there is a reasonable possibility of eventual control of the risk presented by Mr. Rhode in the community. In my view, there is. Dr. Lohrasbe points out and I agree Mr. Rhode is quite intelligent. He has a supportive spouse and now a son. He knows the risks to them if he reoffends. These are motivators for him to avoid the evil that is child pornography.

[ 65 ] On the whole of it, including Mr. Rhode’s criminal record, his testimony and Dr. Lohrasbe’s report, the trial judge found the evidence led “inexorably” to the conclusion that the requirements of s. 753.1(1) had been met. He therefore determined Mr. Rhode was an LTO. [ 66 ] I have reiterated the trial judge’s reasoning and described the evidence he relied upon.

As his reasons demonstrate, the trial judge reviewed the applicable case law, addressed the issues he was required to address under s. 753.1 of the Criminal Code , considered the evidence relevant to those issues, and found the Crown had met its burden. Applying the standard of reasonableness, I am unable to say the trial judge’s conclusion is unreasonable or unsupported by the evidence. B. Sentence fitness [ 67 ] As noted, the trial judge designated Mr. Rhode an LTO, sentenced him to three concurrent six-year terms of imprisonment and imposed a ten-year LTSO.

The trial judge credited 31.5 months against the six-year global sentence. [ 68 ] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender ( Criminal Code , s. 718.1 ). There are a number of secondary sentencing principles, including those of aggravation, mitigation, parity, totality, and restraint (ss. 718.2(a)–(e)).

Further, a sentence may have one or more objectives, such as to denounce unlawful conduct and harm done, deter the offender or others from committing offences, separate offenders from society, assist in the rehabilitation of offenders, provide reparations for harm done, and promote a sense of responsibility in offenders and acknowledgement of the harm done (ss. 718(a)–(f)).

Nonetheless, as is often remarked, the sentencing of any particular offender is an individualised process where the sentencing court has a good measure of discretion to craft a fit sentence, provided the sentence imposed has been guided by the appropriate principles and objectives of sentencing. In R v Lacasse , 2015 SCC 64 , [2015] 3 SCR 1089, Wagner J. (as he then was), for the majority, wrote: [11] This Court has on many occasions noted the importance of giving wide latitude to sentencing judges.

Since they have, inter alia , the advantage of having heard and seen the witnesses, sentencing judges are in the best position to determine, having regard to the circumstances, a just and appropriate sentence that is consistent with the objectives and principles set out in the Criminal Code in this regard. The fact that a judge deviates from the proper sentencing range does not in itself justify appellate intervention.

Ultimately, except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit. [ 69 ] Mr. Rhode asserts his sentence is demonstrably unfit, reflects an improper emphasis on one or more of the objectives of sentencing, fails to properly address the objective of rehabilitation, and is not proportionate to the gravity of his offences and his degree of responsibility.

He also says the trial judge either failed to consider the timing of the offences and how that related to amendments to s. 163.1 of the Criminal Code , which had increased the maximum sentence available, or, if the trial judge did consider those amendments, he failed to provide sufficient reasons for the sentences he imposed. [ 70 ] On the last ground, Mr. Rhode is correct in that two of the three six-year concurrent terms of imprisonment he received are illegal sentences.

The maximum penalties of five years’ imprisonment for the offences of accessing and possessing child pornography were not increased to ten years’ imprisonment until 2015 ( Tougher Penalties for Child Predators Act , SC 2015, c 23, s 7). As Mr. Rhode committed his ss. 163.1(4) and (4.1) offences prior to those amendments, his maximum jeopardy for each of those two offences was five years’ imprisonment. While those sentences must be varied, I will first address the fitness of the sentence imposed on Mr.

Rhode for the offence of making child pornography. [ 71 ] The maximum penalty for the offence of making child pornography (s. 163.1(2)) was ten years’ imprisonment at the time of Mr. Rhode’s offending (subsequently increased to 14 years’ imprisonment). Accordingly, the sentence of six years’ imprisonment the trial judge imposed for that offence did not exceed the maximum sentence available at the time of its commission. Therefore, the six- year sentence is not illegal. [ 72 ] That leaves to be addressed Mr.

Rhode’s assertions that a six-year sentence for making child pornography is demonstrably unfit, reflects an improper emphasis on one or more of the objectives of sentencing, fails to properly address the objective of rehabilitation, and is not proportionate to the gravity of his offence and his degree of responsibility. To be clear, however, I do not see the illegality of the two other sentences as, itself, undermining the trial judge’s assessment of the gravity of the offence of making child pornography or the moral culpability of the offender.

Nonetheless, appellate review of the sentence imposed for making child pornography under these grounds of appeal is complicated by a number of factors, not least of which is the fact the trial judge approached sentencing holistically, analysing the circumstances and imposing concurrent six-year sentences of imprisonment for all three offences, and two of those sentences are illegal. [ 73 ] With that caution in mind, the review begins with the objective gravity of child pornography offences and the moral culpability of the offenders who commit them.

Broadly speaking, it should be beyond question that the very existence of child pornography is inherently harmful to children and to society as a whole ( R v Sharpe at paras 84–94 ). The creation and distribution of child pornography, which often involves and records the inherently-violent sexual assault of a child, is driven by its consumption—i.e., by those who access and possess it.

While the makers of child pornography may directly sexually assault children, the consumers of child pornography directly promote the sexual assault of children. [ 74 ] When it comes to the fundamental principle of sentencing, the objective gravity of child pornography offences and the moral culpability of the individuals who commit those offences are considerable. This drives courts to emphasise the objectives of denunciation and deterrence when sentencing such offenders, particularly where the offenders are otherwise law-abiding citizens.

Justice Wagner made this point in R v Lacasse in relation to impaired driving offences: [73] While it is true that the objectives of deterrence and denunciation apply in most cases, they are particularly relevant to offences that might be committed by ordinarily law-abiding people. It is such people, more than chronic offenders, who will be sensitive to harsh sentences. Impaired driving offences are an obvious example of this type of offence, as this Court noted in Proulx :

... dangerous driving and impaired driving may be offences for which harsh sentences plausibly provide general deterrence. These crimesare often committed by otherwise law-abiding persons, with good employment records and families. Arguably, such persons are the onesmost likely to be deterred by the threat of severe penalties: see R. v. McVeigh (1985), (ON CA), 22 C.C.C. (3d) 145(Ont. C.A.), at p. 150; R. v. Biancofiore (1997), (ON CA), 119 C.C.C. (3d) 344 (Ont. C.A.), at paras. 18-24; R. v.Blakeley (1998), (ON CA), 40 O.R. (3d) 541 (C.A.), at pp. 542-43. [para. 129] [75] Furthermore, when, as in this case,

Part XXIV proceedings are engaged, the sentencing objective of protection of the public isenhanced (R v Boutilier, 2017 SCC 64, [2017] 2 SCR 936). That said, the aggravating and mitigating factors present in each case will, ofcourse, also influence the sentence imposed on a particular offender. [76] At a base level, the evidence is that Mr. Rhode is a sexual deviant—a paedophile—who incorrigibly accesses and possesseschild pornography, but the evidence also shows that he now makes child pornography too. The transcript and expert evidencedemonstrate that Mr.

Rhode is intelligent but that he rationalises his deviance. He does not acknowledge his consumption and productionof imagery depicting the sexual assault of children is a direct cause of harm to those children and to others. The evidence of hisrationalisation of child pornography and his failed efforts at rehabilitation in the past both suggest he will not voluntarily cease to act ordesist from acting on his sexual attraction to young female children. Indeed, the trial judge designated Mr.

Rhode an LTO because heposes a high risk of accessing and possessing child pornography in the future. [77] While the trial judge did not go into great detail canvassing mitigating factors in this case, I am satisfied his reasons meet therequirements of R v Sheppard in that the written decision on sentence sets out a meaningful basis for the sentence imposed and in that thereasons given and the record allow for appellate review of sentence fitness.

Put bluntly, there were few mitigating factors in this case andthey could have had but marginal effect on the sentence, given the high objective gravity of the offences and the particular aggravatingcircumstances in this case. While not truly a mitigating factor, the trial judge observed, more than once, that Mr. Rhode had not beenconvicted of offences involving “personal violence” or “hands-on” sexual offences and had been “simply viewing offensive material.”These statements applied to the accessing and possessing offences but, in Mr.

Rhode’s circumstances, they might be said to apply to themaking offence as well. Drawing on the absence of direct violence to children, the trial judge rejected the Crown’s opening position thatMr.

Rhode’s offending warranted a global sentence of ten years’ imprisonment and a ten-year LTSO, saying the Crown’s proposal failedto meet the requirement of proportionality (at paras 27–31). [78] Nonetheless, the global sentence of six years (before remand credit) imposed by the trial judge in this case is higher than mostof the sentences previously meted out to what might be called similar offenders for similar offences committed in similar circumstances(see, as examples: R v L.M., 2008 SCC 31, [2008] 2 SCR 163—15 years, but also convicted of sexual assault; R v Hudec—LTOdesignation and 5.5-year determinate sentence; R v Rotman—LTO designation and 4.5-year determinate sentence; R c Nadeau, 2015QCCQ 5719—LTO designation and four-year determinate sentence; R v Snow, 2014 BCPC 27—four-year sentence; R v Collins(9 January 2013) Regina, Tomkins P.C.J. (Sask Prov Ct)—4.5 years on a joint submission). [79] In broad terms, the trial judge’s reasons in this case demonstrate that he was aware the general circumstances pushed thesentencing objectives of denunciation and deterrence to the forefront.

Further, he understood the designation of Mr. Rhode as an LTOput emphasis on the objective of protection of the public. As to offender rehabilitation, while the trial judge had acknowledged theexistence of “a reasonable possibility of eventual control of the risk presented by Mr. Rhode in the community” (at para 25), the expertevidence adduced at the sentencing hearing and relied upon by the trial judge made it clear Mr.

Rhode had reoffended despite hisintelligence and an intellectual understanding of “at least some of his risk factors”, even with strong family support from his spouse, aftertaking out-of-custody group and individual therapy to address his deviance, and notwithstanding a “very unpleasant” previousincarceration for accessing and possessing child pornography. These circumstances necessarily relegated the objective of offenderrehabilitation behind denunciation, deterrence and protection of the public.

Furthermore, it is difficult to successfully argue a sentencingcourt has erred by failing to place sufficient emphasis on rehabilitation or restorative justice where past rehabilitative efforts have failedand the court was sentencing a recidivist offender who does not accept the gravity of his or her offending or acknowledge the degree ofhis or her responsibility for that offending. [80] For these reasons, I find the sentence imposed on Mr. Rhode is consistent with the sentencing objectives and principles set outin the Criminal Code. The trial judge considered the few mitigating factors in Mr.

Rhode’s favour and not unreasonably, given theaggravating circumstances, attached less weight to them than Mr. Rhode does in this appeal. The trial judge’s decision to weigh suchfactors in the way he did is not a reviewable error. The trial judge also properly emphasised the importance of deterrence anddenunciation in this case and found the expert psychiatric evidence spoke negatively to Mr. Rhode’s prospects for rehabilitation. In thecontext of this sentencing, I cannot criticise the trial judge for placing less emphasis on the objective of rehabilitation.

Although thesentence in this case may be seen as severe, there is no basis upon which to conclude that the trial judge failed to weigh the sentencingobjectives and principles set out in the Criminal Code. This means the trial judge did not make a reversible error in his crafting of thesentence.

However, in R v Lacasse, Wagner J. noted “it is possible for a sentence to be demonstrably unfit even if the judge has made noerror in imposing it” (at para 52). [81] What draws the attention here is the fact that a six-year term of imprisonment for making child pornography is double theprevious high watermark for sentences imposed on arguably similar offenders for s. 163.1(2) offences committed in arguably similarcircumstances—just referring to so-called “Photoshop” cases. On the face of it, the sentence imposed on Mr. Rhode is a departure fromwhat may be seen as the sentence range.

This fact, alone and on its face, engages greater appellate scrutiny. [82] I would start by identifying that there are several difficulties with determining a range for sentences imposed on offendersunder s. 163.1(2). If the sentencing range is put at its broadest, the statutory minimum sentence for making child pornography iscurrently one year of imprisonment and the statutory maximum is now 14 years of imprisonment.

However, when Parliament first addeds. 163.1(2) to the Criminal Code, it was initially a hybrid offence with no statutory minimum (An Act to amend the Criminal Code andthe Customs Tariff (child pornography and corrupting morals), SC 1993, c 46, s 2). This changed in 2005, when Parliament amended theCriminal Code to provide for a statutory minimum sentence of 90 days on

summary conviction and one year by way of indictment (AnAct to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, SC 2005, c 32, s7(2)). In 2012, the statutory minimum sentence on

summary conviction increased to six months (Safe Streets and Communities Act,

SC 2012, c 1, s 17). It was not until 2015 that Parliament amended s. 163.1(2) to make it an indictable offence only (Tougher Penaltiesfor Child Predators Act). At the time of Mr. Rhode’s offending, the statutory range was one to ten years of imprisonment by way ofindictment and 90 days to two-years-less-a-day upon

summary conviction. In this case, the Crown elected to proceed by way ofindictment against Mr. Rhode. [83] Given the legislative history, sentences imposed across Canada for the offence of making child pornography under s. 163.1(2)of the Criminal Code have been between 45 days on

summary conviction and three years of imprisonment following conviction onindictment (as examples, see: R v Leier, 2017 SKCA (SentDig) 23—three years concurrent, as part of a five-year global sentence forpossessing and making child pornography and breach of probation, offender appeal dismissed; R v Pitts, 2016 NSCA 78—two yearsconcurrent, as part of a seven-year global sentence; R v McLean, 2016 SKCA 93, 484 Sask R 137—global sentence of three years forconvictions including possessing and making child pornography, luring, extortion and sexual interference; R v Poole, 2015 SKCA(SentDig) 12—15 months consecutive to a one-year sentence for possessing child pornography; R v R.B., 2014 ONCA 840, 327 OAC 20—12 months consecutive to a six-month sentence for voyeurism and 18 months consecutive to a 12-month sentence for luring; R vTettersell, 2012 ABCA 57, 524 AR 88—two years consecutive as part of a global sentence of eight years; R v Walsh (2006), (ON CA), 206 CCC (3d) 543 (Ont CA)—sentence for revenge-porn involving a minor reduced from two years to timeserved; R v Fulton, 2005 ABCA 423, 376 AR 128—14 months’ imprisonment plus 18 months’ probation; R v R.M.V., 2015 BCPC469—1.5 years consecutive to 2.5 years for sexual assault; R v R.K., 2015 ONSC 2391—two years concurrent and 18 months concurrentas part of a global sentence of 5.25 years on convictions for making and possessing child pornography and voyeurism; R v Brunton,2014 ONCJ 120—90 days consecutive and 45 days concurrent as part of a global sentence of 15 months’ incarceration plus three years’probation).

At six years of imprisonment, Mr. Rhode’s sentence under s. 163.1(2) is noticeably longer than sentences imposed on otheroffenders in the past. [84] Also notable is the fact that, unlike many of the cases cited, Mr. Rhode’s circumstances did not lead the trial judge to imposeconsecutive sentences, which makes direct sentence comparisons awkward. When comparing the sentences imposed on offenders unders. 163.1(2), it is important to recall that many of the sentences imposed previously were consecutive to other sentences and thereforeinvoked the totality principle of sentencing (s. 718.2(c)).

Although enacted after Mr. Rhode’s offences, Parliament added s. 718.3(7) ofthe Criminal Code under The Tougher Penalties for Child Predators Act (s. 17), which requires a sentencing court to impose aconsecutive sentence for offences under s. 163.1 where the offender is also being sentenced for a different sexual offence committedagainst the same child. Here, the trial judge gave no indication whether he considered imposing a consecutive sentence for the offenceunder s. 163.1(2).

It may be that he assessed the global six-year sentence as achieving the same result as imposing concurrent sentencesfor accessing and possessing child pornography followed by a shorter consecutive sentence for making child pornography. I just do notknow. [85] I do know, from the legislative history of s. 163.1, that the objective gravity of such crimes is based more on their societalconsequences than the actual actus reus of the offence committed or the particular moral culpability of the offender.

That is, respondingto the irremediable damage done by the accessing, possessing and making of child pornography, Parliament has repeatedly increased theminimum and maximum sentences for the objective offences under s. 163.1.

In my assessment, the legislative history of s. 163.1 signalsconvincingly that Parliament considers it important for the courts to convey a strong message of denunciation to the offenders whocommit such crimes and of general deterrence to those ordinary citizens who might consider doing so in the future. [86] The court in R v J.S., 2018 ONCA 675, 142 OR (3d) 81, reached the same conclusion, where Strathy C.J.O. disposed of asentence appeal under s. 163.1 by stating: [122] Courts must continue to denounce and deter such conduct in the strongest possible terms.

The only way to do so is to send amessage to the offender, and to likeminded individuals, that they will pay a very heavy price for their conduct. [123] The sentence in this case sends that message. It needed to do so. While the sentence was at the high end of the range for suchoffences, and possibly in excess of the range, I am not satisfied that it was the product of an error in principle or of the failure to consideror over-emphasis of a relevant factor.

Nor is the sentence demonstrably unfit. [87] The statutory requirement for consecutive sentences, the legislative history of the offence and its penalties, the disparatecircumstances of the particular offences committed, and the scope of aggravating and mitigating factors that can arise in relation to theoffence and the particular offender all make it difficult to say there is a definitive range of sentences for the offence of making childpornography simpliciter (see: R v J.S. at para 116).

For this and other reasons, I would echo what Hoy A.C.J.O. stated in R v Inksetter,2018 ONCA 474, 141 OR (3d) 161: [24] I am aware that there is an appeal pending in this Court in R. v. Cristoferi-Paolucci, 2017 ONSC 4246, [2017] O.J. No. 4341,challenging the constitutionality of the mandatory minimums for possession of, and making available, child pornography. However, evenif the mandatory minimums are declared of no force and effect, Parliament’s legislative initiatives signal Canadians’ concerns regardingthe increasing incidence of child pornography.

Sentencing decisions that precede these amendments must be viewed with some caution. (Emphasis added) [88] For the foregoing reasons, I conclude courts should not take previous sentencing decisions under s. 163.1 as establishing adefinitive range of sentences that reliably reflects the current application of the fundamental principle of sentencing or as establishing areliable guide for the current application of all of the other relevant principles and objectives of sentencing. [89] As to his particular offence, it could be said that the gravity of Mr.

Rhode’s offending under s. 163.1(2) is not at the highestby reason that it did not involve the direct, hands-on abuse of a child and there were few image files. While still relevant, but given thegeneral nature of the crimes, the number of image files made seems less material to a “making” charge, where there should be moreemphasis on the “how” not the “how many”, than the number of image files possessed is to a “possessing” charge. Moreover, on theevidence before the trial judge, it was open for him to conclude Mr.

Rhode had involved himself in something more than simplysuperimposing himself in few pre-existing images of exploited children for his own personal gratification. In this regard, it is noteworthy

the trial judge rejected the availability in Mr. Rhode’s circumstances of the personal use exemption referred to in R v Sharpe . This is telling given the trial judge had heard the following expert explanation of the use to which some child pornography that has been altered in this way is put by offenders: Q MR. PASHOVITZ [Prosecutor]: Detective Sergeant, [1] I just wanted to suggest a couple of things to you that I believe we’ve heard in evidence in this case that may assist the court.

I believe we heard from a forensic psychiatrist about the fact that he has seen over -- and the phrase that keeps coming up, at least as far as my memory the last ten years, his phrase was, I think, the last ten years he has seen technology progressing as far as offenders using Photoshop to put themselves into child pornography photographs. Is that something you’ve seen being done more and more over the past ten years, if I can use that term as well or -- A Yes, there’s entire web sites dedicated to people who Photoshop themselves into images or, you know, change the images.

There are people who do that just to trade images, so they’ll create child pornography with themselves in it, just to gain credit with other people they’re trading child pornography with to -- to at least provide some indication that they’re a hands-on offender, so an offender who has access to kids and has offended against kids before. We certainly see that at an increasing kind of rate.

Part of that is obviously because technology is -- is more advanced, and it’s easier for people to use, but also just there’s -- there’s instruction on how to view these sorts of things for people, and if they want to do that they’ll do that. And a lot of offenders are becoming more careful in trading images or sharing information with people like that -- you know, screening them for law enforcement because obviously we wouldn’t do that. We wouldn’t share child pornography images, Photoshopped or not.

So you know, that’s certainly an area where people are becoming more advanced, not just offenders that we catch, but also people who are committing these offences who are interacting with the offenders who we’re investigating. Q So Photoshop on top of an existing photo of a child pornography situation, what are your thoughts as far as that? That’s not causing any harm. That photo was already out there. What about offenders’ attitudes like that? Do you deal with that in your profession? A Well, yes, obviously, that’s -- that’s [ sic ] argument that’s been made before, certainly to me -- Q Mmhmm.

A -- in other cases, just simply about the images not actually causing harm, but certainly they do cause harm, and I think it’s enhanced with someone who takes that image, especially if it’s a non-child pornography image, so say it’s an image of a child who is in - - you know, just standing there wearing a bathing suit, and an offender say Photoshops themselves and their penis in this child’s mouth or -- or -- or that they’re touching this child in such a way, I think it creates -- it exploits that child who wasn’t normally exploited in that same sense.

And even if they don’t do that, if an offender simply puts themselves in this picture that they don’t belong in, even if it’s not sexualized, they then use that in order to trade other images of kids who are being exploited. It exploits that child who they’ve altered in that photo. That is, in terms of the gravity of Mr. Rhode’s offending, the expert evidence was that, far from being some lesser form of child exploitation, image files such as those Mr. Rhode created through image-editing software often play a cancerous role in the propagation of child pornography.

Nonetheless, it is not clear the trial judge saw them in this light. Albeit he was addressing whether the image files satisfied the definition of child pornography, the trial judge said the photoshop image file had been created by Mr. Rhode to sexually stimulate himself . He makes no mention of other uses, but then he made the statement in the trial decision, before he had heard the expert evidence at the sentencing hearing. [ 90 ] In terms of moral culpability for the offence of making child pornography, the psychiatrist who had examined Mr. Rhode for the purposes of the

Part XXIV proceeding testified as follows about Mr. Rhode inserting himself into child pornography: Q Thank you, Doctor. The next part of your report focuses in on his predicate offences, and if I may call your attention to page 21. At the bottom of page 21 there is a full paragraph when you asked him as follows: When asked when he first started inserting himself into images, he thinks it was around 2010. It goes on to say: He described how he photo shopped images of himself with those available on the Internet. Then he goes on to say, quote: But it was not to create pornography.

I’ve jotted down in my notes, in the Crown’s opinion of course, it was to create photography (sic). Does that cause you concern as far as his risk to reoffend? He says what he was doing was, quote, Not to create pornography, but in reality of course it was? A Well, yes, and I share your concern. It’s one of those things where there’s a gulf between this otherwise intelligent and in many ways insightful man and the rest of us because to the point where we parted after our second interview he does not acknowledge that accessing child pornography harms children, which is blindingly obvious to most of us.

He does not -- he can’t see it. There is a gulf there between him and the rest of us. Similarly, when it comes to viewing, inserting himself in -- in some kind of a sexually suggestive or -- or with sexual connotations, into the same picture, deliberately doing that, putting himself together with a child, obviously alarms most of us on the outside. He just doesn’t see it. So it’s one of the many kinds of what I refer to as unfathomable parts of him. Despite his good intelligence, despite good insight in many things, there is a gap between him and social morals, if I can put it that way.

This expert evidence, alongside evidence of strong family supports, etc., indicates Mr. Rhode was wholly responsible for his own offending. [ 91 ] On the other hand, in the context of the

Part XXIV proceeding, the psychiatrist opined, albeit in a qualified way, that Mr. Rhode’s risk for reoffending under s. 162.1(2) was low: Q Doctor, if I may turn now to basically the top of page 52, as far as your risk assessment for him making child pornography. You

conclude, at the bottom of that portion: All things considered, therefore, it is my view that he poses a low risk for making child pornography in the foreseeable future. You go on to say: I acknowledge that this is a subjective opinion as there is little by way of clinical experience or professional literature to guide me on this topic. That’s still your opinion, Doctor? A Yes. Q You say earlier in that portion of the report, though, I think in the middle of that last full paragraph in that section, quote: It is a relatively recent development and one that is ancillary to his accessing child pornography. Again, i

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