Her Majesty the Queen v. J.S.
[Indexed as: R. v. S. (J.)]
2018 ONCA 675
Court of Appeal for Ontario, Strathy C.J.O., Watt and G.J. Epstein JJ.A.
August 2, 2018
Criminal law — Sexual offences — Sentence — Accused filming his
sexual abuse of his three very young nieces and distributing images on
Internet site devoted to made-to-order sadistic child pornography —
Accused also possessing extreme child pornography collection — Accused
pleading guilty to making, possessing and distributing child pornography,
sexual assault with weapon and sexual interference — Sentence of 18
years’ imprisonment affirmed on appeal — Sentence at high end of range
and possibly in excess of range but not resulting from error in principle
and not demonstrably unfit.
The accused pleaded guilty to making, possessing and distributing child
pornography, sexual assault with a weapon and three counts of sexual interference.
While babysitting his three nieces (six-month-old twins and a four-year-old), the
accused sexually abused them, filmed the abuse and distributed the images on an
Internet site devoted to made-to-order sadistic child pornography. He attached the
older child’s name to the sexual abuse images of her which he shared with
others. The website attracted people who, like the accused, had access to children
and recorded their sexual abuse of those children for distribution. The accused also
possessed a child pornography collection that included images and films of sadistic
sexual abuse and sexual degradation of very young children. He was 35 years old at
the time of the trial and had no criminal record. He showed a lack of insight into the
harm he caused and was assessed as a high risk to re-offend. The older girl had
developed very serious behavioural and emotional issues including developing an
eating disorder, signs of self-mutilation and required constant supervision to prevent
her from acting inappropriately towards other children, including her sisters. Victim
impact statements also discussed the harm to the other children and the life-altering
impact of his actions on some members of the victims’ family. The trial judge
sentenced the accused to ten years’ imprisonment for making child pornography, 4.5
years consecutive for distributing child pornography, six months consecutive for
possessing child pornography, five years concurrent for sexual assault with a weapon,
three years concurrent on each of two counts of sexual interference, and three years
consecutive on the third count of sexual interference — a total of 18 years’
imprisonment, less a credit of 18 months for pre-trial custody. The accused appealed.
Held, the appeal should be dismissed.
The sentencing judge did not fail to consider the totality principle. While he did
err in considering the accused’s lack of remorse as an aggravating factor, the error
was inconsequential because it did not impact the sentence. The sentencing
judge’s observations about the accused’s lack of remorse were made in the context
of considering his lack of insight into his crimes and his risk of re-offending. Taken
in context, the sentencing judge did not use the accused’s lack of remorse to
increase the sentence, but rather properly used it to assess the risk of re-offending
and the consequent need to isolate the accused from society.
The sentencing judge did not err in making the sentences for possession of child
pornography and sexual interference consecutive to the sentence for making child
pornography. While there was some overlap in the factual basis of those offences,