WARNING

The President of the panel hearing this appeal directs that
    the following should be attached to the file:

An order restricting publication in this proceeding under
    ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the

Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the victim or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151, 152,
    153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173,
    210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1,
    286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as it
    read at any time before the day on which this subparagraph comes into force, if
    the conduct alleged involves a violation of the complainants sexual integrity
    and that conduct would be an offence referred to in subparagraph (i) if it
    occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),
    effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt with
    in the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings in respect of the
    offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the victim of the right
    to make an application for the order; and

(b)     on application made by the victim, the
    prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an offence
    other than an offence referred to in subsection (1), if the victim is under the
    age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of
    their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an offence
    under section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does
    not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005,
    c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29;
    2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1)       Every person who fails to comply
    with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR
    ONTARIO

CITATION: R. v. J.S.,
    2018 ONCA 675

DATE: 20180802

DOCKET: C63360

Strathy C.J.O., Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.S.

Appellant

Brian A. Callender, for the appellant

John A. Neander, for the respondent

Heard: April 24, 2018

On appeal from the sentence imposed on June 10,
    2016 by Justice John D.D. Evans of the Ontario Court of Justice.

Strathy C.J.O.:

[1]

The
    appellant was convicted of sexually abusing his three nieces (six-month-old
    twins and a four-year-old), filming the abuse and distributing the photographs
    and movies on an Internet site devoted to the sexual abuse of children. He was
    also convicted of possession of child pornography. His collection included images
    and films of sadistic sexual abuse and sexual degradation of very young
    children.

[2]

The
    appellant appeals his sentence of 18 years (less 18 months credit for
    pre-trial custody) on his convictions after guilty pleas to counts of making
    child pornography, distributing child pornography, possessing child pornography,
    sexual assault with a weapon and three counts of sexual interference. The
    relevant offences and sentences are summarized in Appendix A.

[3]

For
    the reasons that follow, I would dismiss the appeal. The sentence imposed,
    while lengthy, is entitled to deference. The sentencing judge identified the
    relevant principles and applied them correctly. The sentence is not
    demonstrably unfit.

A.

Background

The Offences

[4]

I
    begin with a caution. It is unfortunately necessary to describe the offences
    and the circumstances surrounding them in a degree of detail that is graphic
    and disturbing, in order to have a full appreciation of the nature and gravity
    of the appellants admitted conduct.

[5]

In
    2015, the Child Sexual Exploitation Unit of the Ontario Provincial Police
    (OPP), working in conjunction with the Royal Canadian Mounted Polices
    National Child Exploitation Coordination Centre and international police
    agencies, located a child depicted in Internet child pornography known by
    investigators as the S Series. The abuser could be heard using the childs
    name, S, in some of the videos of his abuse.

[6]

After
    interviewing the child and her mother, police arrested the appellant, who had
    been a babysitter for his nieces, S and her twin siblings, B1 and B2.

[7]

A
    search warrant executed at the appellants home yielded two computers and an
    external hard drive containing images and films depicting the appellants
    sexual abuse of his nieces, a child pornography collection and postings by the
    appellant to an anonymous and secret website devoted to distribution and
    trading between producers and consumers of extreme forms of child pornography.

[8]

It
    was ascertained that during the summer of 2012 the appellants three nieces
    were left in the appellants care while his sister-in-law worked outside the
    home. During this time, the appellant sexually abused his nieces, recorded the
    abuse, and posted some of it to a website.

[9]

A
    representative sampling of the images and films found on the appellants devices
    was introduced in evidence before the sentencing judge. This included child
    pornography unrelated to his nieces. The appellants collection contained images
    of vaginal and anal penetration of young children, penetration of children with
    objects and fingers, a movie of the anal rape of a boy under two years of age,
    whose arms and legs were bound by electrical tape, and an image depicting bondage
    of a four year old girl.

[10]

A sampling of
    images of B1 and B2 included images of a childs vaginal area, insertion of the
    appellants penis in a childs mouth and insertion of a candle into a childs
    anus. These images were apparently used as part of the appellants advertisements
    on the web site. Films of one or both of the twins showed the use of an
    electric toothbrush on the infants vagina, digital masturbation and
    cunnilingus. In several of the films, the child was crying during the abuse.

[11]

Images and films
    of S included attempted penetration of the anal and vaginal areas with an erect
    penis, digital penetration, masturbation of the clitoris, anal penetration with
    a Sharpie marker and cunnilingus. One film showed the child nude, awake and
    watching television.

[12]

Apart from the
    child pornography he himself produced, the appellants child pornography
    collection included some 577 images and 243 films. The investigating officer
    testified that the volume of pornography in the collection was not above
    average, but there was evidence to suggest that the appellant may have erased some
    of his material. The officer described the appellants collection as the most
    intrusive collection Ive ever had to categorize. She added, I saw things in
    this collection Ive never seen before in six years. It included sadistic
    sexual acts committed against children, as well as penetration with a range of
    instruments. The officer noted that it was apparent from many of the images and
    films that it was the discomfort of the child that was sexually pleasing to
    the person. The Crown described it as among the most intrusive and degrading
    image and movies that can exist, involving infants and very young children,
    most between the ages of four and six.

[13]

The judge was
    also provided with a four-page written synopsis of the representative sampling,
    prepared by the investigating officer, which is part of the record before us.

[14]

The sentencing
    judge heard and observed evidence of the appellants activity in the world of Internet
    child pornography. The website or boards in which the appellant participated
    were dedicated to the sexual abuse and degradation of children. The abuse
    included anal and vaginal penetration, spanking, and urination and ejaculation
    on childrens bodies.

[15]

The evidence
    adduced before the sentencing judge was that the website used by the appellant
    for distribution of his material attracted the upper echelon of the child
    pornography industry  that is, those, like the appellant, who sexually abused
    children to whom they had access and recorded the abuse for the purpose of
    distribution. The officer described these individuals as the hands-on
    offenders. In order to become a member of the website, or to obtain entry to a
    particular site or board, the user had to show that he had access to a child
    and could make child pornography to order based on what other members wanted
    to see. To use the example given by the officer who testified at the trial, a
    member of the board might ask another member to spank or urinate on a child in
    his care.

[16]

The appellant
    used various names to identify himself on the website. One was Puffy Pudenda.
    The officer defined pudenda as the external genital organs, specifically
    those of the female, the vulva. In May 2013, the appellant posted an
    introduction to himself on the website:

Daddy
    of three gorgeous little fuck toys. Really like to hold down my two youngest
    and spank their little asses for long periods of time, followed by extended
    forced vibrator play making them convulse, shake and piss all over the place.
    Beats using Tempera to calm em down.

[17]

Attached to this
    post were ten images of sexual abuse he had committed on his three nieces.

[18]

Later in the
    same month, the appellant posted another introduction:

Hey
    everyone just wanted to say a quick hello to tell you a bit about myself. Im
    sure some of you have seen some of my material. Im a daddy of three girls, all
    under the age of six. Yeah, I live a pretty blessed life as you can all
    imagine. The best part is Im a stay-at-home dad, [while] mommy works long
    hours.

[19]

The appellant
    proceeded to describe his sexual abuse of one of the children, performing
    cunnilingus on the child until she urinated and then spanking the child for
    urinating on him. He described spanking the child with good strong smacks and
    my rhythm is steady like a metronome, then pinning back her legs and using a
    vibrator on her vagina. The appellant said that he used zinc diaper cream to
    digitally penetrate the childs anus. The appellant indicated that he had
    attached a couple of teasers (photographs of the abuse) to his post. He
    stated that he had already proven myself to the users of the board. He added
    that he [w]ould like to hear from other dads of toddler girls, maybe toddler
    boys. In another posting he told the other members, if you want private
    trades you will need to prove yourself.

[20]

Some of the
    appellants posting demonstrated contempt for leechers, who simply consumed
    the pornography made by producers like him and did not contribute their own
    material to the website.

The Offender

[21]

The appellant
    was 35 years old at the time of trial and was unmarried. He had previously been
    in a common law relationship for six years. He had no previous convictions. The
    sentencing judge noted that he had a grade 10 education and had had sporadic
    employment. He had been receiving payments from the Ontario Disability Support Program
    since October 2013 due to a neck and back injury. He admitted to
    self-medicating his anxiety disorders through the regular use of marijuana. He
    also used other non-prescription drugs.

[22]

The appellant
    was raised in a dysfunctional home, characterized by violence and substance
    abuse. There was some evidence, referred to in the pre-sentence report, that he
    may have been sexually assaulted by an eleven year old boy from his
    neighbourhood when he was five years old, and other evidence suggesting that he
    had been sexually assaulted by his father at the age of three.

[23]

The sentencing
    judge noted that the author of the pre-sentence report observed that the
    appellant had made some contradictory statements with respect to the benefit he
    might receive from counselling. He did not feel he had hurt S, because he loved
    her.

[24]

The author of
    the pre-sentence report noted that although the appellant took responsibility
    for his conduct by acknowledging guilt, he did not appear to be remorseful or
    concerned for the victims. He lacked insight into what a healthy relationship
    with a child should entail.

The Victims

[25]

Two victim
    impact statements were before the sentencing judge. One was from the childrens
    grandmother, with whom S was placed after the appellants arrest and following the
    removal of the children from the family home. The other was from the victims
    mother. Both statements spoke of the consequences of the abuse, not only on the
    victims, but on their parent, grandparents and siblings.

[26]

The sentencing
    judge observed:

[The
    statements] speak in a poignant and [heart-rending] fashion to the emotional
    trauma suffered by these child victims with its ongoing and lasting effects, as
    well as the physical, emotional and life-altering impact the accuseds conduct
    has wrought upon some of the members of the victims families.

[27]

The victim
    impact statements indicated that the older child, S, had required therapy to
    address behavioural and emotional issues and required constant supervision to control
    inappropriate behaviour towards other children, including her younger siblings.
    She had become isolated and alienated. According to her mother, she had developed
    an eating disorder and showed signs of self-mutilation. Her mother was
    concerned that the two younger girls might develop similar behaviours as a
    result of the abuse.

Submissions at Sentencing

[28]

The Crown sought
    a sentence of between 15 and 18 years. Crown counsel emphasized the nature of
    the sexual abuse itself, the massive breach of trust and the impact on the
    victims and their family life. He pointed out that quite apart from the
    production and distribution of the child pornography, the sexual abuse of
    defenseless young children on its own would attract a very significant
    penitentiary sentence. The Crown described the images as clearly sadistic and
    extreme child sexual abuse, with the appellants own words demonstrating his
    desire for recognition and status in the world of child pornography producers.
    Once distributed on the Internet, the Crown pointed out, the pornography could
    never be recalled. The images will continue to be seen by people around the
    world.

[29]

The defence
    acknowledged the gravity of the offences, the vulnerability of the victims and
    the long-term impact of the images remaining on the Internet, particularly with
    respect to S, whose name was attached to some of the images. It was, the
    defence admitted, a unique and aggravated set of facts.

[30]

The defence
    submitted that the range for the offences was 8 to 15 years. Defence counsel
    acknowledged that it was one of the most serious offences of making and
    distributing child pornography and, in fact, this person is the perpetrator of
    the sexual violence in the creation of those images. So that makes this a very
    worst example of the offence. She suggested, however, a sentence of 8 to 10
    years.

[31]

Defence counsel
    acknowledged the appellant lacked remorse, and suggested that he was born
    without an empathy gene. Counsel said that the appellant simply did not
    understand the harm he had caused the children.

Reasons of the Sentencing Judge

[32]

The sentencing
    judge described the appellants offences as one of the worst, if not the
    worst, examples of these offences. The images and films and the appellants posts
    on the Internet sites spoke for themselves and demonstrated his determination
    to be recognized and appreciated as a producer of the most vile of child
    pornography. He found that the appellant created and distributed the material
    without concern for the pain and suffering he was inflicting upon his helpless
    and vulnerable victims in his pursuit of recognition and appreciation from his
    like-minded peers.

[33]

The victim
    impact statements, in the judges view, spoke to the emotional trauma suffered
    by these child victims with its ongoing and lasting effects, as well as the
    physical, emotional and life-altering impact the accuseds conduct has wrought
    upon some of the members of the victims families.

[34]

The sentencing
    judge noted:

Even
    in the absence of impact statements the Court is entitled to consider the
    well-known consequences of child sexual abuse upon the victims, including
    psychological harm, emotional trauma, and the inability as an adult for the
    victim to form a loving and caring relationship with another adult. The Court
    can also consider, as in this case, that the posting of the child pornography
    on the internet will forever permit these children, and in particular, S, to be
    further victimized and they will be further traumatized by the knowledge that
    these images and movies could surface in their personal lives at any time.

[35]

He referred to
    the pre-sentence report but pointed as well to the opinion of the investigating
    officer who described the accused as arrogant, self-centred and lacking
    remorse. He noted that the author of the pre-sentence report considered that
    the appellant posed a high risk to re-offend.

[36]

The sentencing
    judge found the following aggravating factors:

·

the
    number of victims and their ages of six months and four and a half years;

·

the
    nature of the assaults committed upon the victims, with its relative depravity
    and violence;

·

the
    accuseds sexual abuse of his victims was for the purpose of his creating,
    possessing, and distributing child pornography on the internet which could lead
    to further victimization of the children by others;

·

the
    size and nature of the accuseds child pornography collection;

·

the
    accuseds position of trust as the uncle and part-time care giver to the children;

·

the
    accuseds desire to create and distribute child pornography in a manner which
    would enhance his standing amongst his peers in the child pornography community;

·

the
    accuseds callous disregard of the obvious pain and suffering he was inflicting
    upon his six-month-old victims;

·

the
    accuseds lack of insight into the harm he had visited upon his victims, either
    due to the lack of any moral compass or through willful disregard;

·

the
    accuseds lack of any genuine remorse; and

·

the
    accuseds ambivalence with respect to the possible benefits of counselling,
    which raised the spectre of his being at a high risk to re-offend.

[37]

The sentencing
    judge found the following mitigating factors:

·

the
    accuseds lack of a prior criminal record; and

·

the
    accuseds pleas of guilty, which spared S the trauma of testifying, but which he
    found to be more of an acceptance of reality in the face of overwhelming and
    compelling evidence than an expression of any genuine remorse.

[38]

The judge noted
    the appellants dysfunctional upbringing and the presence of some evidence that
    he had been sexually assaulted as a young child. It was not suggested at
    sentencing or in this court that this evidence should be taken into account as
    an explanation for the appellants conduct.

[39]

The trial judge noted
    that the goals of denunciation, and general and specific deterrence took
    precedence in these types of offences. He said:

The
    Courts have made it clear that in sentencing for these types of offences
    denunciation, general and specific deterrence and the need to separate the
    offender from society take precedence over the other recognized objectives of
    sentencing. The Court has a duty to seek to protect children who are our most
    vulnerable and our most valued assets in our society. The sentences imposed
    must be sufficiently punitive to demonstrate societys revulsion and
    condemnation and to demonstrate to the accused and to those who are like-minded
    that the consequences of such conduct will be dire.

[40]

He noted that even
    where an accused might not qualify as the worst offender the maximum sentence
    might well be appropriate if it is a fit sentence in the light of the gravity
    of the offence and the degree of responsibility of the accused. He also
    referred to the investigating officers opinion that the appellant would be
    likely to re-offend.

[41]

The sentencing
    judge noted the principle of totality, acknowledging that he was required to
    ensure that the sentences imposed, together, did not result in a penalty that
    was unduly harsh or exceeded that which would be appropriate in the
    circumstances.

B.

Submissions
    on appeal

[42]

I will elaborate
    on the parties submissions in more detail in the Analysis section of these
    reasons. The following brief summary will put the issues in context.

Submissions of the Appellant

[43]

While the
    appellant acknowledges that the sentence for distribution of child pornography
    should be at the high end of the range, he submits that the sentencing judge
    did not give adequate consideration to the totality principle in considering
    the sentences for the other offences and the sentence as a whole, resulting in
    a sentence that was disproportionate and unfit. He characterizes the sexual
    assaults and the making of child pornography as being at the low to medium
    level of severity and the sexual interference as part and parcel of the child
    pornography offences. He submits that the trial judges failure to recognize
    that the offences were not the most serious resulted in a total sentence that
    was excessive, particularly when compared to sentences imposed on other
    offenders for similar offences.

[44]

He also submits
    that the sentencing judge made errors in principle in treating the appellants
    lack of remorse as aggravating and in making the sentences on counts 3
    (possessing child pornography) and 7 (sexual interference) consecutive.

Submissions of the Respondent

[45]

The respondent
    acknowledges that the sentencing judge erred in characterizing lack of remorse
    as aggravating, but submits that the error did not impact the sentence in any
    meaningful way. The respondent describes each of the offences as serious,
    particularly having regard to the very young age of the victims, the distribution
    of images of their abuse on the Internet, the appellants stated intention to
    become a respected producer of sadistic and degrading child pornography and
    his exhortations of others to do the same. Not only was the appellant producing
    child pornography, he was in possession of other particularly vicious and
    degrading images of sexual abuse of young children. The overall sentence was
    fit.

C.

Analysis

[46]

I begin by
    examining the standard of review, followed by outlining some general principles
    applicable to sentencing. I will then examine the appellants grounds of appeal
    and, finally, consider whether the sentence imposed was fit.

(1)

Applicable
    Principles

The Standard of Review

[47]

It is
    well-settled that sentencing decisions attract a high level of deference in
    this court: Absent error in principle, a failure to consider a relevant factor
    or the erroneous consideration of an aggravating or mitigating factor that has had
    an impact on the sentence imposed, appellate intervention is not justified:
R.
    v. Saikaley
, 2017 ONCA 374, 135 O.R. (3d) 641, at para. 155;
R. v.
    Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 43-44.

[48]

In
R. v. M.
    (C.A.)
, [1996] 1 S.C.R. 500, at para. 91, the Supreme Court emphasized
    that deference is required, not simply due to the unique perspective enjoyed by
    the trial judge in hearing and seeing the evidence, and receiving the full
    submissions of counsel for the defence and the Crown, but also because the
    trial judge represents and speaks for the community that has suffered the
    consequences of the crime. The Supreme Court described, at para. 91, the
    determination of a just and appropriate sentence as a delicate art:

[]
    which attempts to balance carefully the societal goals of sentencing against
    the moral blameworthiness of the offender and the circumstances of the offence,
    while at all times taking into account the needs and current conditions of and
    in the community. The discretion of a sentencing judge should thus not be
    interfered with lightly.

See also
R. v. Ramage
, 2010 ONCA 488, 257
    C.C.C. (3d) 261, at para. 72.

[49]

There is
    particular reason for deference in this case. While the appellant pleaded
    guilty, and the judge did not hear evidence as to guilt, he heard evidence on
    sentencing from the investigating officer, a member of the OPPs Child Sexual
    Exploitation Unit, concerning the search to identify the three child victims,
    the identification of the appellant, and the discovery of the child pornography
    on his computers. The officer testified about the nature and extent of
    distribution of child pornography on the Internet, including the S series, the
    location of secret and encrypted websites and user exchange groups and the existence
    of sadistic and degrading websites devoted to made-to-order sexual abuse of
    very young children and babies. The officer also testified about the
    appellants involvement in this world of Internet child pornography where he
    aspired to be, and apparently was, a respected producer.

[50]

The sentencing
    judge also saw with his own eyes a selection of photographs and videoclips, explained
    by the investigating officer, to demonstrate the abuse the appellant perpetrated
    on the three victims. This was the child pornography which he himself produced
    and distributed on the Internet. The judge also observed a selection of the
    unrelated sadistic, intrusive and degrading child pornography that was part of
    the appellants collection.

[51]

In
R. v.
    Kwok
, [2007] O.J. No. 457 (S.C.J.), at para. 48, Molloy J. observed, in reference
    to sadistic child pornography, that [w]hile the description in words of such
    disturbing images is shocking, nobody can fully appreciate the sickening horror
    of such pornography without actually looking at it. Having seen and heard this
    evidence, the trial judge had an appreciation of the evidence that this court does
    not have.

[52]

One of the leading
    cases concerning deference in sentencing matters is the Supreme Courts
    decision in
R. v. L.M.
, 2008 SCC 31, [2008] 2 S.C.R. 163, a case that
    bears some similarity to this. In
L.M.
, the accused was convicted of sexually
    assaulting his four-year-old daughter and of making, distributing and
    possessing child pornography. His collection of 5,300 pictures and 540 videos of
    child pornography included many images of his sexual abuse of his daughter. He
    distributed the pornography for profit on the Internet. The trial judge imposed
    the maximum ten-year sentence for sexual assault and a consecutive sentence on
    the charges of possessing, making and distributing child pornography, which
    resulted in a global sentence of 15 years. The Québec Court of Appeal reduced
    the global sentence from 15 to 9 years. In restoring the sentence imposed by
    the trial judge, the Supreme Court again emphasized the need for deference in
    appellate review of sentence. LeBel J. observed, at paras. 14-15:

In
    its past decisions, this Court has established that appellate courts must show
    great deference in reviewing decisions of trial judges where appeals against
    sentence are concerned. An appellate court may not vary a sentence simply
    because it would have ordered a different one. The court must be convinced it
    is not fit, that is, that ... the sentence [is] clearly unreasonable (
R. v. Shropshire
,
[1995] 4
    S.C.R. 227
, at para. 46, quoted in
R. v. McDonnell
,
[1997] 1
    S.C.R. 948
, at para. 15). This Court also made the following comment
    in

R. v. M. (C.A.)
,
[1996] 1
    S.C.R. 500
, at para. 90:

...
    absent an error in principle, failure to consider a relevant factor, or an
    overemphasis of the appropriate factors, a court of appeal should only
    intervene to vary a sentence imposed at trial if the sentence is demonstrably
    unfit.

[]

Owing
    to the profoundly contextual nature of the sentencing process, in which the
    trier of fact has broad discretion, the standard of review to be applied by an
    appellate court is one based on deference. The sentencing judge has served on
    the front lines of our criminal justice system and possesses unique
    qualifications in terms of experience and the ability to assess the submissions
    of the Crown and the offender (
M. (C.A.)
, at para. 91). In sum,
    in the case at bar, the Court of Appeal was required  for practical reasons,
    since the trier of fact was in the best position to determine the appropriate
    sentence for L.M.  to show deference to the sentence imposed by the trial
    judge.

[53]

I will return to
    the issue of deference later in these reasons, when I consider the fitness of
    the sentence.

[54]

I turn to
    another important principle applicable to this case.

Primacy of Denunciation and Deterrence in Sentencing Adult Sexual Predators

[55]

It has been
    stated time and again, often with reference to this courts decision in
R.
    v. D. (D.)
(2002), 163 C.C.C. (3d) 471 (Ont. C.A.), that in the sentencing
    of adult sexual predators, the objectives of denunciation, general and specific
    deterrence and the separation of offenders from society must be paramount. In
D.
    (D.)
, Moldaver J.A., as he then was, stated, at paras. 33-35:

Before
    going further, I wish to emphasize that the ranges which I have identified are
    not meant to be fixed and inflexible. On the contrary, sentencing is not an
    exact science and trial judges must retain the flexibility needed to do justice
    in individual cases. The suggested ranges are merely guidelines designed to
    assist trial judges in their difficult task of fashioning fit and just
    sentences in similar cases.

The
    overall message however, is meant to be clear. Adult sexual predators who would
    put the lives of innocent children at risk to satisfy their deviant sexual
    needs must know that they will pay a heavy price. In cases such as this, absent
    exceptional circumstances, the objectives of sentencing proclaimed by
    Parliament in s. 718(a), (b) and (c) of the

Criminal Code
,
commonly referred to as denunciation, general
    and specific deterrence, and the need to separate offenders from society, must
    take precedence over the other recognized objectives of sentencing.

We
    as a society owe it to our children to protect them from the harm caused by
    offenders like the appellant. Our children are at once our most valued and our
    most vulnerable assets. Throughout their formative years, they are manifestly
    incapable of defending themselves against predators like the appellant and as
    such, they make easy prey. People like the appellant know this only too well
    and they exploit it to achieve their selfish ends, heedless of the dire
    consequences that can and often do follow.

[56]

The sentencing
    judge made specific reference to these principles.

Sentencing for the Production, Distribution and Possession of Child Pornography

[57]

This court has also
    frequently stated that denunciation and general deterrence are the primary
    principles of sentencing in offences involving child pornography. In our recent
    decision in
R. v. Inksetter
, 2018 ONCA 474, Hoy A.C.J.O. stated, at
    para. 16:

By
    enacting s. 718.01 of the
Criminal
    Code
,
    Parliament made clear that denunciation and general deterrence must be primary
    considerations for any offence involving the abuse of a child. Further, this
    Court has repeatedly stated that denunciation and general deterrence are the
    primary principles of sentencing for offences involving child pornography:
R. v. D.G.F.
,
2010 ONCA
    27
,
98 O.R.
    (3d) 241
, at paras. 21-22, 30;
R. v. Nisbet
,
2011 ONCA
    26
,
[2011]
    O.J. No. 101
, at para. 3;
R.
    v. E.O.
,
[2003]
    O.J. No. 563
, at para. 7;
R.
    v. Stroempl
,
[1995]
    O.J. No. 2772
, at para. 9.

[58]

Hoy A.C.J.O. observed
    that the evidence in that case reinforced the concern that increasing technological
    sophistication has facilitated the production and distribution of child
    pornography. She noted that the evidence established, as a general trend, that
    [t]he images and videos keep getting more aggressive. The police are now
    identifying more images of baby rape.

[59]

In
R. v. D.G.F.
,
    2010 ONCA 27, 250 C.C.C. (3d) 291, Feldman J.A. noted, at para. 21, that for
    the previous two decades, courts had been on a learning curve to understand
    both the extent and the effects of the creation and dissemination of child
    pornography over the internet and to address the problem appropriately. She
    noted that in cases involving the making of child pornography and child sexual
    abuse, significant custodial sentences had been imposed. She observed, at para.
    22:

Unfortunately,
    the incidence of this behaviour appears to be increasing and expanding as
    technology becomes more sophisticated, encouraging the production of child
    pornography and greatly facilitating its distribution. The victims are innocent
    children who become props in a perverted show, played out for an ever-wider
    audience not only of voyeurs but of perpetrators.

[60]

This appeal demonstrates
    the chilling accuracy of those observations.

[61]

I now turn to
    the grounds of appeal raised by the appellant.

(2)

Grounds
    of Appeal

[62]

I will begin by
    considering the grounds of appeal raised by the appellant.

Totality

[63]

The appellant submits
    that the trial judge failed to apply the totality principle, and that this
    failure led him to impose an unfit sentence of 18 years.

[64]

Totality is an
    expression of the principle, stated in s. 718.1 of the
Criminal Code
,
    that a sentence must be proportionate to the gravity of the offence and the
    responsibility of the offender. As well, s. 718.2(c) provides that where
    consecutive sentences are imposed, the combined sentence should not be unduly
    long or harsh: see also
R. v. Ahmed
, 2017 ONCA 76, 346 C.C.C. (3d)
    504.

[65]

Where an accused
    is ordered to serve consecutive sentences for multiple offences, the offences
    are not looked at in isolation. Nor is it simply a mathematical exercise. The cumulative
    sentence must not exceed the overall culpability of the offender:
R. v. M.
    (C.A.)
, above, at para. 42.

[66]

In
R. v.
    R.B.
, 2014 ONCA 840, 327 O.A.C. 20, this court referred to the proper
    approach in such cases, at para. 8:

Second,
    from reading the sentencing proceedings, we think the sentencing judge followed
    the approach endorsed by this court for sentencing for multiple offences  that
    is, first determine a global sentence and then assign sentences for each
    offence and designate each as concurrent or consecutive to fit within the
    global sentence. Trial counsel framed their submissions in terms of a global
    sentence. The defence argued for two to three years and the Crown for five to
    six years. The sentencing judge appears to have come down the middle.

See also
R. v. Ahmed
, at para. 85;
R. v.
    Jewell
(1995), 100 C.C.C. (3d) 270 (Ont. C.A.), at p. 279.

[67]

In this case, as
    in
R.B.
, the submissions of trial counsel focussed on the total
    sentence. As I have noted, the Crown proposed 15 to 18 years and the defence
    proposed 8 to 10 years. However, at one point defence counsel submitted that
    the sentence should not exceed 14 years (the maximum for sexual assault with a
    weapon). At another point, defence counsel acknowledged that the range for
    making and distributing child pornography was 8 to 15 years, and expressly
    acknowledged that this was one of the worst offences:

You
    clearly have the worst offence in terms of assessing the offender and the
    offence. This is certainly one of the most serious offences of making and
    distributing child pornography and, in fact, this person is the perpetrator of
    the sexual violence in the creation of those images. So that makes this a very
    worst example of the offence.

[68]

Having received
    those submissions, the trial judge specifically adverted to the totality
    principle before determining the appropriate sentence. He said:

Each
    of the offences to which the accused has pled guilty provides for maximum and
    minimum sentences. Generally, maximum sentences are reserved for the worst
    offender committing the worst example of the offence. However, even where an
    accused might not qualify as the worst offender the maximum sentence might well
    be appropriate if it is a fit sentence in light of the gravity of the offence
    and the degree of responsibility of the accused.
However, where the Court is imposing sentences for
    several offences it must have due regard for the principle of totality of
    sentence to ensure that the sentences to be imposed, taken together, do not
    result in a penalty that is unduly harsh and exceeds that which would be
    appropriate in all of the circumstances
.

[Emphasis added.]

[69]

While the trial
    judge did not set out the global sentence before noting the individual
    sentences and whether the sentences were consecutive or concurrent, he stated
    the global sentence immediately thereafter, reflecting the effect of the
    sentences he had imposed. I do not regard this as reflecting a failure to
    consider and apply the totality principle.

[70]

Like
L.M.
,
    this was a complex case in which the determination of the appropriate global
    sentence was the key issue on sentencing. In
L.M.
, LeBel J. observed,
    at para. 31:

The
    judge also correctly understood the close relationship between the offences,
    the overall situation they gave rise to and the need to impose a global
    sentence suited to that situation. Viewed as a whole, the crime was complex.
    The offence of sexual assault was closely connected with three other offences
    of making, possessing and distributing child pornography that are subject to
    express sanctions under the
Criminal
    Code
.
    Each aspect of the offenders conduct could be considered only in light of all
    these charges, viewed as a whole. As Judge Wilhelmy concluded, the global
    sentence was the crucial factor in determining the sentence in the case at bar.

[71]

In my view, the
    appellants approach to totality is not consistent with the jurisprudence. He
    would view the sexual abuse inflicted on the victims at the low to mid-range
    described in
D. (D.)
. He says it was isolated, it did not involve full
    intercourse and it did not include violence or threats of violence. He submits
    the sentence should have taken this into account.

[72]

This is the
    opposite of totality, focusing on isolated features of some of the sexual
    interference offences. It ignores the fact that the appellant committed a
    breach of trust, and that the victims were two infants and a toddler. It
    ignores the sexual assault with a weapon. It ignores the fact that at least
    some of the abuse was committed in the course of making child pornography. It
    ignores the distribution and the perpetuation of the abuse on the Internet. It
    ignores possession of not only the pornography the appellant created, but also of
    the sadistic, degrading and intrusive pornography he obtained from other sources.
    It ignores his activities as a producer and his exhortation of others to do
    the same.

[73]

In my view, the
    sentencing judge properly applied the totality principle and considered these
    matters and others.

Lack of Remorse

[74]

The appellant
    says that the sentencing judge erred in considering lack of remorse as an
    aggravating factor. The respondent acknowledges that, to the extent the
    sentencing judge did so, it was an error. But the respondent submits that this
    error was inconsequential because it did not impact the sentence and therefore
    does not require this court to open up the sentencing and re-sentence the
    appellant based on first principles. For the reasons that follow, I agree with
    the respondent.

[75]

To put this
    issue in context, it is important to consider the several sources of evidence
    that were before the sentencing judge concerning the appellants appreciation
    of the significance of his acts and their impact on his victims. There was
    evidence of the investigating police officer, the author of a pre-sentence
    report, the appellants own statement prior to sentencing and victim impact
    statements from the childrens mother and grandparent.

[76]

First, the
    pre-sentence report. The author of the report considered the appellant at high
    risk to re-offend due to his lack of insight and lack of remorse, among other
    things. The trial judge summarized this evidence as follows:

The
    author of the pre-sentence report indicated that while the appellant admitted
    the offences, he lacked insight into the offences: he did not feel he hurt the
    children stating that he loves the [oldest] child, he would never hurt her.
    He made no reference to the other two children. At one point in the interview
    the appellant blames his brother and sister-in-law [the childrens parents] for
    being bad parents and permitting the older child to wander around the house
    naked after a bath. The appellant also made contradictory statements about the
    benefits of counselling. The report continues that one of the investigating
    officers described the appellant as arrogant, self-centered and lacking in
    remorse. The officer described the case as the worst, most sadistic case of
    child exploitation she has been involved in.

[77]

In a brief
    statement prior to sentencing, the appellant expressed sorrow for the hurt he
    had caused his family. However, nowhere in the appellants statement did he
    recognize the physical and emotional trauma that he had inflicted on the
    victims and their family or the lasting implications of the publication of the
    abuse on the Internet.

[78]

Defence counsel
    in sentencing submissions acknowledged that the appellant did not appreciate
    the damage he had done to his child victims  he doesnt get the harm he
    caused to them and it was as if he was born without an empathy gene.

[79]

It appears that
    the sentencing judges observations about the appellants lack of remorse were
    made in the context of considering the appellants lack of insight into his
    crimes and his risk of re-offending. In summarizing the last three of the ten
    aggravating factors he identified, the judge described:

[]

(8) the
    accuseds lack of insight into the harm he has visited upon his victims, either
    due to the lack of any moral compass or through willful disregard;

(9) the
    accuseds lack of any genuine remorse; and

(10) his ambivalence
    with respect to the possible benefits of counselling, which even in the absence
    of any formal risk assessment certainly raises the spectre of his being at a
    high risk to re-offend.

[80]

These
    observations reflect, in part, the views expressed by the author of the
    pre-sentence report:

In
    this writers opinion, the offenders criminal behaviour combined with his lack
    of remorse for the victims, his thought processes that he can have an intimate
    relationship with a child, moving to a location that could have provided him
    with an opportunity for more victims, his sense of notoriety within the
    pedophilic community, his lack of family supports in the community, and his
    self-centered, arrogant/controlling behaviours
make him a high risk to re-offend
. [Emphasis added.]

[81]

The judge also
    stated that while the appellants guilty pleas were a mitigating factor, he
    considered them to be more of an acceptance of reality in the face of
    overwhelming and compelling evidence than an expression of any genuine remorse.
    However, the judge noted that the appellants guilty pleas precluded the
    possibility of the older child testifying, potentially risking further trauma.

[82]

The judge was
    entitled to reject the appellants profession of sorrow or remorse. While he
    erred in saying that the lack of remorse was aggravating, the context in which
    the statement was made indicates that the primary purpose was to emphasize the
    appellants lack of insight into his crimes and the impact on his risk of
    re-offending.

[83]

In
R. v. Shah
,
    2017 ONCA 872, this court observed that lack of remorse may indicate a lack of
    insight and responsibility for the offence and may therefore be a relevant
    factor in considering the risk of re-offending. The court stated, at paras.
    8-9:

Lack
    of remorse is not ordinarily a relevant aggravating factor on sentencing:

R. v. Valentini

[1999]
    O.J. No. 251
(C.A.), at para. 82. It cannot be used to punish the
    accused for failing to plead guilty or for having mounted a defence:
Valentini
, at para. 83;
R. v. J.F.
,
2011 ONCA
    220
, at para. 84,
105 O.R.
    (3d) 161
; affd on other grounds in
2013 SCC
    12
,
[2013] 1
    S.C.R. 565
. Absence of remorse is a relevant factor in sentencing,
    however, with respect to the issues of rehabilitation and specific deterrence,
    in that an accuseds absence of remorse
may indicate a lack of insight into and a failure to
    accept responsibility for the crimes committed, and demonstrate a substantial
    likelihood of future dangerousness
:
Valentini
, at para. 82;
R. v. B.P.

(2004),
    190 O.A.C. 354
(C.A.), at para. 2.

In
    the present case, the placement of the phrase concerning the appellants lack
    of genuine remorse is awkward. However, when the Reasons for Sentence are
    considered in their entirety, we do not agree that the trial judge treated the
    appellants lack of genuine remorse as an aggravating factor. Certainly, there
    is no indication that the trial judge increased the sentence because the
    appellant lacked genuine remorse. [Emphasis added.]

See also
L.M.
, at para. 30.

[84]

Taken in
    context, the trial judge did not use the appellants lack of remorse to
    increase the sentence. He properly used it to assess the risk of re-offending
    and the consequent need to isolate the appellant from society. If there was an
    error, it did not have an impact on the sentence imposed.

Consecutive Sentences for Count 3 and Count 7

[85]

The appellant
    submitted that the sentencing judge erred in imposing consecutive sentences for
    count 3 (possession of child pornography) and count 7 (sexual interference). He
    submits that the sexual interference was part and parcel of the possession of
    child pornography and that the imposition of a six-month consecutive sentence
    for the possession count was unjustified.

[86]

The appellant
    also submitted in his factum, relying on
R. v. Jewell
, that the three-year
    sentence for sexual interference was inappropriate because it was an inherent
    feature of the making of child pornography. He asserted that the effect is that
    he was sentenced twice for the same conduct and the two should have been
    treated as a single transaction.

[87]

I would not
    accept either submission. The sentencing judges decision to impose a consecutive
    sentence is entitled to deference from this court:
R. v. P.M.
, 2012
    ONCA 162, 282 C.C.C. (3d) 450, at para. 56, referring to
R. v. McDonnell
,
    [1997] 1 S.C.R. 948, at para. 46:

In my opinion, the decision to order concurrent or
    consecutive sentences should be treated with the same deference owed by
    appellate courts to sentencing judges concerning the length of sentences
    ordered. The rationale for deference with respect to the length of sentence,
    clearly stated in both
Shropshire and
    M. (C.A.)
, applies equally to the decision to order concurrent or
    consecutive sentences. In both setting duration and the type of sentence, the
    sentencing judge exercises his or her discretion based on his or her first-hand
    knowledge of the case; it is not for an appellate court to intervene absent an
    error in principle, unless the sentencing judge ignored factors or imposed a
    sentence which, considered in its entirety, is demonstrably unfit. []

See also
R. v. P.J.B.
, 2010 ABCA 49, at para.
    8.

[88]

The child
    pornography count included child pornography found on the appellants computers
    that was in addition to the child pornography he himself produced. In total, his
    collection included some 577 still images and 243 movies. There was also
    evidence that the appellant may have used a software program to erase some of
    the files. The photographs and films recovered included images from what the
    investigating officer described as one of the most offensive and violent series
    of child pornography on the Internet. It included images and films of young
    children being sexually violated, abused and degraded. The investigating
    officer said that she had seen larger collections of child pornography, but in
    six years of working in the area the appellants was the most intrusive
    collection she had ever had to categorize. She saw things that she had never
    seen before. The images showed vaginal and anal rape of young children,
    including a child of under two years of age whose arms and legs were bound with
    electrical tape and who was anally penetrated.

[89]

As well, some of
    the pornography produced by the appellant was unrelated to the charges of sexual
    interference.

[90]

While there was
    some overlap in the factual basis of the offences, they were by no means
    co-extensive. Moreover, the offences of sexual interference and making child
    pornography protect different interests. It was within the discretion of the
    sentencing judge to impose consecutive sentences.

[91]

I turn to the
    question of whether the sentence was unfit.

(3)

Was
    the Sentence Excessive or Unfit?

[92]

In this section,
    I will consider whether the sentence was excessive or unfit. It is not
    necessary to repeat the aggravating circumstances identified by the sentencing
    judge and set out in detail above. Suffice to say that the circumstances of
    this case are unique and egregious. I will begin by identifying the relevant
    sentencing principles and how they impact on these offences. I will also
    examine sentences imposed in similar cases. Finally, I will consider whether
    the sentence was unfit, in light of the foregoing.

(a)
Relevant Sentencing Principles

[93]

I have already
    referred to, and do not need to repeat, this courts jurisprudence on the
    primacy of denunciation and general and specific deterrence in the sentencing
    of adult sexual predators. I have also referred to the application of the same
    principles in sentencing for child pornography offences.

[94]

This is
    confirmed by s. 718.01 of the
Criminal Code
, which states that [w]hen
    a court imposes a sentence for an offence that involved the abuse of a person
    under the age of 18 years, it shall give primary consideration to the
    objectives of denunciation and deterrence of such conduct.

[95]

The
    circumstances of this particular case also bring into play a number of
    statutory aggravating circumstances, including (a) abuse of a person under the
    age of 18 years (s. 718.2(ii.1)); (b) abuse of a position of trust (s.
    718.2(iii)); and abuse which has a significant impact on the victims,
    considering their ages and other personal circumstances (s. 718.2(iii.1)).

[96]

Moreover,
    although the provision was not in effect at the time of the offences, it is
    appropriate to note that the
Tougher Penalties for Child Predators Act
,
    S.C. 2015, c. 23, increased mandatory minimum and maximum sentences for certain
    sexual offences against children. This included increasing the minimum sentence
    for possession of child pornography to one year and the maximum sentence to 10
    years, where the Crown proceeds by indictment. It also provided that the
    sentences for certain offences against children were required to be served
    consecutively. It added s. 718.3(7), which provides:

(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.

[97]

In
Inksetter
,
    Hoy A.C.J.O. observed, at para. 24, that:

[]
    Parliaments legislative initiatives signal Canadians concerns regarding the
    increasing incidence of child pornography. Sentencing decisions that precede
    these amendments must be viewed with some caution.

[98]

Parliaments
    concern is reflected in increasing judicial concern about the sexual abuse of
    children and the dissemination of images and films of child sexual abuse on the
    Internet, inciting others, like the appellant, to commit both offences.

[99]

Some 23 years
    ago, in
Jewell
, this court expressed concern about a child pornography
    subculture that it described as unsettling and repugnant. Speaking for the
    court, Finlayson J.A. stated, at p. 277:

[] These
    appeals confront the court with the pressing issue of how to deal with
    offenders such as the appellants who prey on young persons, boys in this case,
    for no other purpose than their own sexual gratification. The court must be
    responsive to emerging concerns that pornography, particularly child
    pornography, has become an area of criminality that increasingly menaces our young
    people and threatens our values as a society. Because pornography now can be so
    easily prepared and disseminated through relatively inexpensive means, such as
    the hand-held video camera used in the case under appeal, it has emerged as a
    very real problem in our society.

[100]

That case was decided before the Internet
    was easily accessible to child pornographers. Even in
D. (D.)
, decided
    16 years ago when the Internet was in its relative infancy, this court could
    not foresee that a new category of child sexual abuse was emerging
    made-to-order sadistic sexual abuse and degradation of young children and
    babies, broadcast into the darkest corners of the Internet, shared with
    communities of abusers and consumers, creating an ongoing cycle in which the
    publisher feeds not only a demand but creates his own supply. A single act of
    abuse is repeated, violating the victim again and again, promoting new abuse of
    new victims.

[101]

This was expressed in eloquent and
    moving words by Ratushny J. in
R. v. Lynch-Staunton
, 2011 ONSC 218, at
    paras. 49 and 54:

This
    [child sexual abuse] is the source of the extreme harm caused by the possession
    and distribution of child pornography. It starts with innocent children who
    have been physically and emotionally abused by acts of sexual violence
    committed by depraved persons interested in satisfying their own deviant urges
    and in having their actions filmed and shown to others. This starts the cycle
    of abuse and the sexual victimization of these children and of other children
    continues so as to satisfy the business of production and distribution of
    child pornography for the curious viewer, the deviant viewer and the depraved
    viewer.

[]

It
    is the business of the possession of child pornography that perpetuates the
    cycle of the physical and mental abuse of children, even though the possessor
    is rarely, and certainly not in the present case in terms of the images, the
    original abuser. As Detective Coakley testified, it is the new children being
    portrayed in child pornography images that attract the most demand in terms of
    the trading card mentality surrounding collections of child pornography. This
    value only means that new and real children are being abused to satisfy the
    demand.

[102]

In
R. v. Nisbet
, 2011
    ONCA 26, at para. 1, this court observed that Internet child pornography is
    increasing:

Sadly, possession of child pornography facilitated through
    the internet is on the rise. It is an abhorrent crime that victimizes the most
    vulnerable members of our society and hence the need for sentences to reflect
    denunciation and deterrence.

[103]

The fact that Internet child
    pornography is on the rise means that sexual abuse of children for the purpose
    of creating child pornography is almost certainly on the rise.

[104]

As this case demonstrates, the
    detection and prosecution of such crimes is difficult. The offences take place
    in private and are perpetrated against victims who have no voice. Images are
    traded, encrypted, in dark and anonymous corners of the Internet using software
    designed to protect both the supplier and the consumer. Even if police are able
    to access the images, tracing the perpetrators and producers  and, most
    importantly, rescuing the victims  is enormously challenging and depends on
    extraordinarily skillful and patient investigation as well as some degree of
    luck.

(b)
Other Cases

[105]

The parties have referred us to
    the sentences in a number of cases involving a combination of sexual offences
    and the possession, creation or distribution of child pornography. I will
    briefly summarize some of the cases that appear to me to be of most assistance.
    I do not propose to distinguish each case from this one, although I will make
    some general comments following this review

[106]

In
R. v. Cardno
, [2013] B.C.J.
    No. 889 (B.C. Prov. Ct.), the accused was convicted of sexual touching, sexual
    touching by a person in a position of trust, sexual assault, sexual exploitation
    and making child pornography. The offences took place over 13 years and were
    committed on prepubescent boys the accused had befriended. There were hundreds
    of incidents and thousands of pictures documenting the abuse. The accused was
    sentenced to a total of 9 years imprisonment: 3 years for making child
    pornography and 6 years consecutive for the sexual offences.

[107]

In
R. v. Pike
, 2008 ONCJ
    484, the accused pleaded guilty to and was convicted on 8 counts of sexual
    interference, 1 count of making child pornography and 1 count of possession of
    child pornography. He abused 8 young male victims between the ages of 2 to 14,
    whom he had met through babysitting, coaching and other activities, over the
    course of 4 years. At all times the accused was in a position of trust towards
    the boys. He was found in possession of thousands of images and hundreds of
    movies and stories depicting the sexual abuse of his victims and other children.
    There was evidence of ongoing psychological trauma to the victims. He was sentenced
    to 14 years imprisonment, before credit for pre-trial custody.

[108]

In
R. v. Gilbert
, 2011
    NBPC 10, [2011] N.B.J. No. 76 , the accused pleaded guilty to 11 counts of
    making child pornography, possessing child pornography, sexual assault
    (including unprotected anal sex), sexual interference and sexual exploitation
    committed against 6 male children between the ages of 4 and 16, over an 11-year
    period. The accused abused a position of trust and groomed some of the victims.
    He was sentenced to 15 years imprisonment.

[109]

In
R. v. D.C.
, 2016 MBCA
    49, 336 C.C.C. (3d) 366, the court upheld a 16-year sentence for an offender
    who, over a 3-year period, sexually abused his 9-year-old daughter and 4 sons,
    who ranged in age from 4 to 8 years. He recorded the abuse and posted some of
    it on a website used for sharing child pornography. He pleaded guilty to sexual
    touching, invitation to sexual touching, creating child pornography, possession
    of child pornography and distribution of child pornography. It is noteworthy that
    the sentencing judge would have imposed a sentence of 22.5 years, but for the
    application of the totality principle.

[110]

In
R. v. Snook
, 2013 NBPC
    17, an accused was sentenced to 18 years imprisonment after pleading guilty to
    46 offences committed against 17 young male victims (including his foster
    child) over a 12-year period, including making child pornography, making child
    pornography available and possession of child pornography. He was an elected
    municipal official who participated in programs for underprivileged youth.

[111]

In
R. v. K.D.H.
, 2012
    ABQB 471, an offender was convicted of sexually abusing 4 child victims,
    including his 2 biological children, over a 9-year period. Their ages ranged
    from approximately 6 to 13 when the abuse began. The abuse included bondage,
    sadism and bestiality.

[112]

In
R. v. L.M.
, the
    Supreme Court of Canada restored the sentence of 15 years imprisonment imposed
    by the trial judge on the accused, who had abused 2 child victims, one of whom
    was his daughter, over a period of 2 years when she was between 2 and 4 years
    old. He had distributed images of the abuse, for profit, over the Internet to a
    child pornography network. The accused had a previous record for sexual assaults
    of minors and there were numerous aggravating factors. He pleaded guilty to possession
    and distribution of child pornography and was convicted as well of making child
    pornography and sexual assault. He was assessed at a high rate to re-offend.

[113]

In this courts decision in
R.
    v. D.G.F.
, referred to earlier, the accused pleaded guilty to 7 sexual
    offences, including 2 counts of sexual assault of his 4-year-old daughter, 3 counts
    of making child pornography in relation to his daughter, 1 count of possession
    of child pornography and 1 count of distributing child pornography. He had
    participated in an Internet chat room devoted to the exchange of images and
    films of child sexual abuse. The accused explained that he decided to sexually
    abuse his daughter after receiving encouragement online from other members of
    the chat room. He was apprehended shortly after transmitting a live sexual
    assault of his own daughter to an undercover police officer.

[114]

This court set aside an effective 4-year
    sentence as manifestly unfit and imposed a sentence of 7 years, which was the
    sentence the Crown had requested at trial and the basis on which the guilty
    plea had been entered. The Crown on appeal contended that the range for the
    offences was between 7 and 10 years. Feldman J.A. noted, at para. 29, that in
L.M.
the Supreme Court upheld the 15-year sentence imposed by the trial judge,
    making it clear that the range can reach well into the double-digit level,
    depending on the number of offences and the confluence of circumstances that
    may exist in each case.

[115]

It seems clear that the sentence
    imposed by this court in
D.G.F.
was reflective of a plea agreement and
    would undoubtedly have been higher in the absence of that consideration.

(c)
Conclusion: The
    Sentence was Fit

[116]

The foregoing summary of some of the
    case law does not begin to describe the gravity of the offences or the impact
    on the child victims. Nor does it readily permit comparisons between this case
    and others. The myriad and complex ways in which such crimes are committed makes
    it difficult to compare one case to others and to identify whether one offender
    deserves a greater or lesser sentence than another.

[117]

In comparison to some of the cases
    referred to above, this case might be described as an anomaly. The abuse took
    place over a relatively shorter time period than some, there were fewer victims
    than some, and the abuse did not include full intercourse or violence extrinsic
    to the abuse. On the other hand, the circumstances of this case are, to some
    extent
sui generis
 in a class of their own, so to speak. These
    included: the very young age of the victims; sexual assault with a weapon and
    objects causing evident distress; distribution of the images of the abuse on
    the Internet; the appellants boastfulness, his exhortation of others to prove
    themselves with private trades; his portrayal of himself as a producer and
    a decent member of the community; and the evidence of the appellants child
    pornography collection, with its focus on sadistic and degrading abuse of young
    children.

[118]

I return to the issue of
    deference. The Supreme Courts decision in
R. v. Lacasse
, above,
    reminds us that deviation from a sentencing range is not, in itself, a basis
    for appellate intervention. The court stated, at para. 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.

[119]

The court also stated, at para.
    58, that a sentence outside the range may sometimes be appropriate:

There
    will always be situations that call for a sentence outside a particular range:
    although ensuring parity in sentencing is in itself a desirable objective, the
    fact that each crime is committed in unique circumstances by an offender with a
    unique profile cannot be disregarded. The determination of a just and
    appropriate sentence is a highly individualized exercise that goes beyond a
    purely mathematical calculation. It involves a variety of factors that are
    difficult to define with precision. This is why it may happen that a sentence
    that, on its face, falls outside a particular range, and that may never have
    been imposed in the past for a similar crime, is not demonstrably unfit. Once
    again, everything depends on the gravity of the offence, the offenders degree
    of responsibility and the specific circumstances of each case. LeBel J.
    commented as follows on this subject:

A
    judge can order a sentence outside that range as long as it is in accordance
    with the principles and objectives of sentencing. Thus, a sentence falling
    outside the regular range of appropriate sentences is not necessarily unfit.
    Regard must be had to all the circumstances of the offence and the offender,
    and to the needs of the community in which the offence occurred.

[120]

Sadistic sexual assault of twin
    babies and a very young child by a trusted caregiver is amongst the most
    grievous crimes imaginable. To record such abuse and trade it on the Internet compounds
    the injury to the victims. All the more so when the offender does so for the
    stated purpose of attaining notoriety and respect so that others will share
    their own sadistic abuse of children. And the more horrific the abuse, the more
    it is valued in that community. The appellants violation of his victims is repeated
    every time the images are viewed on the Internet, where they cannot be erased
    and will likely reside in perpetuity. And, as the sentencing judge observed,
    the victims, particularly S whose face is shown, may be further traumatized by
    the knowledge that these images and films could surface in their personal lives
    at any time.

[121]

As the sentencing judge noted,
    this is not the only way the victims have been and will be affected. Child
    sexual abuse can cause enduring, even lifelong, psychological harm, trauma and
    suffering. The sexually abused child may become incapable of forming loving and
    caring relationships. His or her family members may suffer the indirect consequences
    of the abuse.

[122]

Courts must continue to denounce
    and deter such conduct in the strongest possible terms. The only way to do so
    is to send a message to the offender, and to like-minded 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 such offences, 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
    consider or over-emphasis of a relevant factor. Nor is the sentence demonstrably
    unfit.

D.

disposition

[124]

For these reasons, I would dismiss
    the appeal.

Released:
    GRS AUG 02 2018

G.R. Strathy C.J.O.

I agree. David Watt J.A.

I agree. G. J. Epstein J.A.

Appendix A

Count: Child

Pornography (CP)

Sentence Length

Concurrent/

Consecutive

Transaction

1. Making CP:

s.163.1(2)

10 years

Principal sentence

Created CP films and
        images of his three victims

2.
        Distributing CP:

s.163.1(3)

4.5
        years

Consecutive

Posted
        CP films and images of the victims on the internet

3.
        Possessing CP:

s.
        163.1(4)

0.5
        years

Consecutive

Possessed
        CP films and images of the victims and other unknown children

4.
        Sexual Assault  Weapon: s. 272(1)

5
        years

Concurrent

Digitally
        penetrated infant victim with a candlestick

5.
        Sexual Interference: s. 151

3
        years

Concurrent

Touched
        Victim 1 (B1) for a sexual purpose

6.
        Sexual Interference: s. 151

3
        years

Concurrent

Touched
        Victim 2 (B2) for a sexual purpose

7.
        Sexual Interference: s. 151

3
        years

Consecutive

Touched
        Victim 3 (S) for a sexual purpose

Ancillary
    orders:
·

A DNA order;
·

An order to comply with
SOIRA
for life;
·

A s. 743.21 order prohibiting communication with any of the
    victims, their mother and grandparents;
·

A ss. 161(1)(a), (b), (c) and (d) order for life;
·

A forfeiture order; and
·

A victim fine surcharge of $1,400.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Judd, 2018 ONCA 724

DATE: 20180831

DOCKET: C63789

Watt, Huscroft and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Randall Judd

Appellant

Lauren M. Wilhelm, for the appellant

Kevin Wilson, for the respondent

Heard and released orally: August 24, 2018

On appeal from the conviction entered on June 22-23, 2015
    and the sentence imposed on December 2, 2016 by Justice Dale Parayeski of the Superior
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant appeals a sentence of three years imposed upon him after a
    plea of guilty to a count of production of marijuana. He was also found guilty
    of possession for the purpose of trafficking in the same controlled substance
    and ordered to serve a concurrent sentence of imprisonment of six months.

[2]

The sentence for production was imposed on a joint submission after the
    trial judge rejected a challenge to the constitutionality of the applicable
    minimum punishment provisions of s. 7(2)(b) of the
Controlled Drugs and
    Substances Act.

[3]

In this court, the parties are
ad idem
that the subsequent
    decisions in
R. v. Vu
,
2018 ONCA 436
and
R.
    v. Tran
, 2017 ONSC 651
are
    dispositive of the constitutionality of the applicable punishment provisions.
    It follows that the trial judges decision in this respect was wrong and we are
    left to determine the fitness of the sentence imposed.

[4]

Before dealing with the issue of fitness, something should be said about
    an issue raised at first instance and discussed briefly by counsel in this
    court. That issue concerns the meaning to be assigned to the term plants as
    it appears in the punishment provisions of s. 7 of the
CDSA.

[5]

In our view, it is unnecessary for us to decide this issue on this
    appeal. There is no question that this was a sizable grow operation consisting
    of both plants and clones. Whether the clones are considered as plants,
    despite the absence of evidence that there were roots attached to them, or
    whether they only become plants if there are roots attached to them, need not
    be decided in this appeal.

[6]

In this court, Mr. Wilson, with commendable fairness, acknowledged that
    a two-year sentence would also be fit.

[7]

In light of the pre-sentence custody for which the appellant received no
    credit at trial, his plea of guilty, the significant period on pre-trial
    release, including several months of house arrest, and in spite of the
    appellants lengthy criminal record, we are satisfied that the ends of justice
    would be met by reducing the sentence imposed at trial to a term of two years.

[8]

In the result, leave to appeal sentence is granted, the appeal is allowed
    and the sentence is varied to a term of two years on the production count. The
    concurrent sentence of six months on the conviction of possession for the
    purpose of trafficking remains, as do the ancillary orders made at trial.

David Watt J.A.

Grant Huscroft J.A.

Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lawrence, 2018 ONCA 676

DATE: 20180803

DOCKET: C63424

Benotto, Trotter and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Leston Everest Lawrence

Appellant

Leston Everest Lawrence,
    acting in person

Erin Dann, appearing as duty counsel

Deborah Calderwood, for the respondent

Heard: July 11, 2018

On appeal from the sentence imposed
    by Justice Peter K. Doody of the Ontario Court of Justice on February 2, 2017,
    with reasons reported at 2017 ONCJ 66.

REASONS FOR DECISION

OVERVIEW

[1]

After a judge alone trial, the appellant was convicted of several
    charges relating to the theft and money laundering of gold from the Canadian
    Mint, where he was employed.

[2]

The sentencing judge conditionally stayed some of the charges to avoid
    double punishment. He ultimately sentenced the appellant to two years and six
    months in custody on the remaining charges for which the appellant was
    convicted, namely: conveying gold out of the Canadian Mint contrary to
Criminal
    Code
, s. 459(c); laundering proceeds of crime contrary to
Criminal
    Code
, s. 462.31(1)(a); and breach of trust by a public official contrary
    to
Criminal Code
, s. 122.

[3]

The sentencing judge made a restitution order pursuant to
Criminal
    Code
, s. 758 in the amount of $190,000. He imposed a fine in lieu of
    forfeiture in the same amount pursuant to
Criminal Code
, s. 462.37(3).
    Finally, he ordered that the appellant serve a further consecutive term of two
    years and six months in prison if he does not pay the fine in lieu of
    forfeiture within three years of the expiration of any term of imprisonment.

[4]

The appellant initially appealed his conviction but has now abandoned
    that appeal. He has also chosen to limit his request for leave to appeal
    sentence to the quantum of the restitution order and the quantum of the fine in
    lieu of forfeiture order. If his challenge to the quantum of the fine in lieu
    of forfeiture succeeds, the appellant also seeks to have the period he must
    serve in lieu of payment shortened. Finally, he asks this court to extend his
    time to pay the fine in lieu of forfeiture.

THE RESTITUTION ORDER

[5]

The appellant was found to have stolen and sold gold pucks produced by
    the Canadian Mint. At the time of the crime, the gold pucks had a value of $165,451.14.
    The value of gold increased pending the completion of the appellants trial. At
    the time of sentencing the pucks had a market value of modestly more than
    $190,000.

[6]

In relevant part, s. 738(1)(a) requires a sentencing judge to consider
    making a restitution order in an amount not exceeding the replacement value of
    the property as of the date the order is imposed. The sentencing judge relied
    on
Criminal Code
, s. 738(1) to impose a restitution order that would
    represent the market value of $190,000.

[7]

With the assistance of duty counsel, the appellant submits that the sentencing
    judge erred when quantifying the restitution order. Duty counsels main
    submission is that the replacement value and market value differ in this case.
    Since the Canadian Mint buys gold products in bulk at a discount, the replacement
    value is less than $190,000, and so the amount of the restitution order should
    be reduced.

[8]

We would not give effect to this argument, which was made for the first
    time on appeal. The stolen gold pucks had been refined by the Canadian Mint and
    were more than 99% pure. That is what required replacement. The replacement
    value of the stolen products was the market value.

[9]

Duty counsel further submits that the sentencing judge erred in the
    exercise of his discretion to award replacement value restitution by not
    applying the principle of restraint in establishing the quantum of the
    restitution order, by failing to recognize that the Canadian Mint is not a
    particularly vulnerable victim, and by not properly considering the appellants
    ability to pay the amount of restitution ordered. We would not give effect to
    these arguments either.

[10]

Restitution
    orders are made to make the victim whole. The discretion of a sentencing judge
    to provide replacement value restitution to accomplish that objective does not
    offend the principles of restraint.

[11]

In
    our view, there is no merit in the vulnerability argument. It was recognized in
R. v. Castro
, 2010 ONCA 718, 102 O.R. (3d) 609, that large
    institutions may be less vulnerable than others, and that this can affect
    whether to make a restitution order. There is no requirement, however, that
    restitution orders must be lower for institutional victims. The sentencing judge
    in this case was alive to the nature of the breach of trust that the appellants
    acts entailed and he properly adjudged that breach of trust to be serious.

[12]

On
    the facts as found at trial, it was open to the sentencing judge to quantify
    restitution based on replacement value.

[13]

Nor
    did the sentencing judge fail to consider the appellants ability to pay the
    restitution he ordered. During the sentencing hearing, all parties proceeded on
    the basis of the appellants counsels assurance that the appellant could pay
    restitution. In any event, where, as here, a breach of trust is particularly
    egregious, a restitution order may be imposed even where repayment does not
    appear to be likely:
R. v. Wa
, 2015 ONCA 117, at para. 12.

THE FINE IN LIEU OF FORFEITURE

[14]

In
    our view, the sentencing judge erred by using the market value of the gold as
    the amount of the fine. The purpose of a fine in lieu of forfeiture is to
    deprive an offender of the proceeds of crime.
Criminal Code
, s.
    462.37(1) provides for the forfeiture of property that is the proceeds of
    crime. Pursuant to
Criminal Code
, s. 462.37(3), the fine in lieu of
    forfeiture is to be the value of the proceeds of crime. The value of the
    proceeds of crime is not necessarily the value of the property:
R. v.
    Lavigne
, 2006 SCC 10, [2006] 1 S.C.R. 392, at paras. 10 and 16. The fine is
dealt with separately from, and in addition to, the punishment
    for committing a crime: see
Lavigne
, at para.
    26.

[15]

The sentencing judge found that the proceeds of
    crime was the money the appellant received in exchange for the gold. At para. 56
    he said: The pucks were sold, producing cash which was proceeds of crime. Based
    on this finding, the sentencing judge was bound to set the amount of the fine
    at $130,206.19.

TIME OF INCARCERATION IN DEFAULT OF PAYMENT

[16]

Notwithstanding
    that we are lowering the fine in lieu of forfeiture, we do not disturb the time
    of two and one-half years in custody that the appellant will have to serve if
    that fine is not paid. As indicated, the sentencing hearing proceeded on the
    representation that the appellant could pay restitution. Yet he has not paid
    any restitution to date.

[17]

The
    appellant admitted that he has yet to sell his house because he prefers to wait
    for it to increase in value. He offers no repayment plan. We see no basis for
    lowering the default sentence should the appellant choose not to pay the fine.

THE REQUEST FOR EXTENSION OF TIME TO PAY

[18]

For
    the same reasons, we do not extend the time that the appellant will have to pay
    the fine in lieu of forfeiture of three years as ordered by the sentencing judge.

CONCLUSION

[19]

Leave
    to appeal is granted with respect to the restitution order and the fine. The
    appeal as to the restitution order is dismissed. The appeal as to the fine in
    lieu of forfeiture is allowed, and the fine is reduced to $130,206.19.

[20]

The
    conviction appeal is dismissed as abandoned.

M.L. Benotto J.A.

G.T. Trotter J.A.

David M. Paciocco J.A.