March 01, 2018
Duval Hesler, Bouchard, Ruel
Application for leave to appeal. Appeal from sentence. Allowed.
The applicant appeals from a judgment of the Court of Quebec sentencing the respondent to a prison sentence of 18 months for offences related to accessing child pornography and possession and distribution of such materials. The appeal concerns only the term and fairness of the prison sentence.
The choice of sentencing range falls under the discretionary power of the trial judge and cannot in itself constitute a reviewable error. In this case, however, the judge imposed a sentence that was in the upper echelons of the range of sentences, but chose a range that was obsolete. The sentence should be increased. Indeed, for the last 12 years, many legislative amendments have been brought to the provisions on child pornography, resulting in increasingly harsher sentences. It is time to give full effect to the will of Parliament.
Furthermore, in light of the principles established in R v. L.M. (S.C. Can., 2008-05-29), 2008 SCC 31, SOQUIJ AZ-50494138, J.E. 2008-1117,  2 S.C.R. 163, even if the trial judge identified the nature of the files seized, their number, the duration of the offences, and the age of the children as aggravating factors, he did not give these factors their due weight.
Moreover, it appears from the case law of the various appellate courts of Canada that rehabilitation is not the most important factor with respect to offences of a sexual nature against a minor. Instead, emphasis must be placed on denunciation and deterrence. Finally, the sentence imposed does not take into account the objective seriousness of the offence of distribution, which is in fact recognized as a much more serious offence than that of possession of child pornography or access thereto. The judge therefore committed an error of principle by imposing prison sentences of equal terms for these two offences.
Consequently, even if the respondent’s rehabilitation efforts are laudable, a prison sentence of 36 months is more appropriate in the circumstances.
*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca
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