|
Criminal - Child Sex Offences (2). R. v. W.W.
In R. v. W.W. (SCC, 2025) the Supreme Court of Canada dismissed a defendant's criminal appeal, here brought against an Ont CA reversal of a trial acquittal for "transmitting sexually explicit material to a 15-year-old child for the purpose of facilitating the commission of a sexual assault or of indecent exposure pursuant to s. 171.1(1)(b) of the Criminal Code".
Here the court was critical of a lower court's referring to the victims behaviour as 'flirtatious':The Court of Appeal was correct in deciding that, in discounting the appellant’s conduct as “merely flirtatious”, the trial judge erred in law by assessing the evidence on a wrong legal principle. To obtain a conviction in respect of the inchoate offence under s. 171.1(1)(b) of the Criminal Code, the Crown had to prove that the appellant transmitted sexually explicit material “for the purpose of facilitating” one or more of the listed offences. It was not necessary to show that the appellant intended to commit one of the enumerated offences. This Court has held that “facilitating” means “helping to bring about” the child’s participation in prohibited conduct by “making [it] easier or more probable” that this will come about. It includes “grooming” the child by reducing their inhibitions or by exploiting their immaturity (see R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, at para. 28).
The Court of Appeal was also correct to substitute a conviction, and the court showed the appropriate caution before so doing. Based on the trial judge’s findings of fact, all the required elements of the offence of transmitting sexually explicit material to a child under s. 171.1(1)(b) of the Criminal Code were made out beyond a reasonable doubt. Against the evidentiary backdrop of the explicit sexual messages and materials sent by the appellant and his expressed desire to sexually assault the child, we agree with the Court of Appeal that “the only reasonable inference to be taken . . . is that the conduct referred to by the trial judge as ‘flirting’, whatever he meant by that term, is clear evidence of an intention to groom the child” (para. 76). The requisite intent was made out on the findings of facts of the trial judge.
We add the following. Depicting the appellant’s conduct and associated intention as “flirtatious” is a serious mischaracterization for describing the sexualized interaction between an adult — in this case a 52-year-old man — and a child. Insofar as it can serve to normalize an adult’s blameworthy conduct as simply playful, erotic or affectionate, instead of inherently criminal, it has no place in an account of a charge involving sexual violence towards children in our system of criminal justice. It bears recalling that a child can never consent to acts of a sexual nature committed by an adult. An adult’s conduct in this connection is not playful but inherently abusive and exploitative and should be properly described as such (see R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 147). . Quebec (Attorney General) v. Senneville
In Quebec (Attorney General) v. Senneville (SCC, 2025) the Supreme Court of Canada dismissed a criminal Crown sentencing appeal, this brought against a Quebec CA decision that held "the minimum sentence [SS: one year] provided for in s.163.1(4)(a) unconstitutional" ['Possession of child pornography'].
Here the court summarizes the case:I. Introduction
[1] Canadian judges recognize that sentencing is a delicate exercise. Each sentence imposed is the result of an individualized process that seeks to answer the complex question: “For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code?” (R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, at para. 36, quoting R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, at para. 80 (emphasis in original)). This complexity is inherent in sentencing law and is also at the heart of our jurisprudence on the right not to be subjected to any cruel and unusual treatment or punishment (s. 12 of the Canadian Charter of Rights and Freedoms). The resolution of this appeal once again requires a nuanced approach.
[2] The appellants challenge the declarations of unconstitutionality made by the majority of the Quebec Court of Appeal with respect to the mandatory minimum sentences of one year’s imprisonment provided for upon conviction for the offences of possession of child pornography (s. 163.1(4)(a) of the Criminal Code, R.S.C. 1985, c. C‑46 (“Cr. C.”)) and accessing child pornography (s. 163.1(4.1)(a)).[1] Before this Court, the argument centred exclusively on the constitutionality of these minimum sentences by reference to situations other than those of the respondents.
[3] This appeal provides an opportunity to reiterate the importance of the possibility for the courts to consider reasonably foreseeable scenarios in the analysis under s. 12 of the Charter. This possibility can avoid invalid laws remaining in force indefinitely, prevent them from having indirect effects in the context of plea bargaining and promote legal certainty and real access to justice. In short, as this Court has consistently repeated, recourse to reasonably foreseeable scenarios is an essential tool for ensuring effective constitutional review.
[4] By assessing a reasonably foreseeable scenario put forward by the parties, I come to the conclusion that the minimum sentences set out in s. 163.1(4)(a) and (4.1)(a) violate the protection against cruel and unusual punishment guaranteed by s. 12 of the Charter. While the teachings of R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, are fully applicable to child pornography offences, which often warrant the imposition of severe penalties, it must be recognized that these offences can be committed in different ways, under different circumstances and by different offenders.
[5] Our case law is categorical: a mandatory minimum sentence does not necessarily violate s. 12 of the Charter (R. v. Hills, 2023 SCC 2, at para. 38; R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045, at p. 1077). However, when the application of a mandatory minimum sentence is broad and covers a wide range of circumstances, the sentence is “constitutionally vulnerable” (R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 3; R. v. Hilbach, 2023 SCC 3, at para. 52) because it leaves no choice but to impose a grossly disproportionate sentence on certain offenders.
[6] A thorough analysis reveals that this is the case for the mandatory minimum sentences contested in this appeal. The offences with which they are associated cover a very wide range of circumstances. They capture both the well‑organized offender who, over the years, has accumulated thousands of files showing prepubescent victims, and the young 18‑year‑old offender who, one day, keeps and views a file showing a 17‑year‑old victim that was sent to the offender without them having requested it.
[7] This last reasonably foreseeable scenario was at the centre of the debate before this Court. The facts of this scenario “are . . . captured by the minimum conduct caught by” (R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 68; Hills, at paras. 79‑80 and 83) the offences of possession of child pornography and accessing child pornography. In the age of digital communication, this scenario is not uncommon, and no aspect of our jurisprudence justifies excluding it for the purposes of the analysis under s. 12 of the Charter. In light of the principles of sentencing, the appropriate sentence for such an offender could be a conditional discharge. The disparity between this non‑carceral penalty and the mandatory minimum sentences of one year’s imprisonment easily meets the constitutional standard of gross disproportionality. The impugned minimum sentences thus violate s. 12 of the Charter, and the appellants did not argue that they can be saved by s. 1. The appeal should therefore be dismissed. . Quebec (Attorney General) v. Senneville
In Quebec (Attorney General) v. Senneville (SCC, 2025) the Supreme Court of Canada dismissed a criminal Crown sentencing appeal, this brought against a Quebec CA decision that held "the minimum sentence [SS: one year] provided for in s.163.1(4)(a) unconstitutional" ['Possession of child pornography'].
The court reviews the harm of child pornography, here in a sentencing context:B. The Serious Social Harm Caused By Child Pornography Offences and the Teachings of Friesen
[30] The ubiquity of the Internet and computer technologies in our lives has changed a good many things, sometimes for the better, sometimes for the worse. In the latter case, it cannot be ignored that new technologies “have accelerated the proliferation of child pornography because they make it easier to produce, distribute and access material in partial anonymity” (R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 114, per Deschamps J., dissenting, citing Y. Akdeniz, Internet Child Pornography and the Law: National and International Responses (2008), at pp. 1‑8; see also Friesen, at para. 47; R. v. Régnier, 2018 QCCA 306, at para. 57). Incidents of child pornography reported by the police have increased (Friesen, at para. 46), and there is no doubt that crimes related to child pornography today present “serious and pressing social harm” (R. v. Bykovets, 2024 SCC 6, at para. 11), sexual offences against children being “among the most profoundly immoral acts an individual can commit” (R. v. Sheppard, 2025 SCC 29, at para. 1).
[31] Regarding, more specifically, the offence of possession of child pornography, Tulloch C.J. detailed the harm caused by this offence (R. v. Pike, 2024 ONCA 608, 173 O.R. (3d) 241, at paras. 144‑56). I agree with his comments, some of which I will refer to.
[32] People who possess child pornography — just like those who access it — participate in the serious violation of children’s dignity, in that they perpetuate “the exploitation originating from the production of the images” and infringe “their right not to have the permanent record of their abuse and exploitation viewed by adults” (Pike, at para. 147, citing R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at paras. 92, 158 and 169, and A. Rogers, “The Dignitary Harm of Child Pornography — From Producers to Possessors”, in C. Byrne Hessick, ed., Refining Child Pornography Law: Crime, Language, and Social Consequences (2016), 165, at pp. 177‑80; see also Friesen, at para. 51). The possession and accessing of child pornography feed the vicious circle of its production, because its production “is fueled by the market for it, and the market in turn is fueled by those who seek to possess it” (Sharpe, at para. 92). Child pornography denies “children’s humanity”, autonomy and dignity and propagates “the false view that children are appropriate sexual partners and that they are sexual objects to be used for the sexual gratification of adults” (para. 183, per L’Heureux‑Dubé, Gonthier and Bastarache JJ.; see also Pike, at para. 155). It trivializes and encourages the sexual exploitation of children, and is particularly harmful for this reason, whether or not it depicts real children (Sharpe, at para. 38; Pike, at para. 169). It is disturbing to note that child pornography can now be generated on a very large scale using artificial intelligence (see, e.g., R. v. Larouche, 2023 QCCQ 1853, at paras. 68‑70) and that the production of deepfakes is “a present and growing danger for children worldwide” (I.F., Canadian Centre for Child Protection Inc., at para. 17; see also A.F., at para. 105).
[33] People who possess child pornography and who access it also participate in the “extreme violation” of the privacy interests of the children it depicts (Sharpe, at para. 241, per L’Heureux‑Dubé, Gonthier and Bastarache JJ.). The criminalization of possession of child pornography is intended, among other things, to bring an end to this violation of children’s privacy by incentivizing the destruction of “pornographic representations which already exist” (ibid.). However, those who choose to possess such material frustrate that objective and, as stated by Tulloch C.J., they act instead as receivers of stolen goods, acquiring “stolen recordings whose production and distribution children cannot consent to, thus robbing children of control over to whom, and in what context, to disclose their abuse and exploitation” (Pike, at para. 148). Moreover, people who possess child pornography and who access that content “make the challenging path of recovery for children much steeper by transforming the initial exploitation and violence of the production into a continuing violation” (para. 149). Victims of child pornography have varying life trajectories and recover at their own pace from the crimes committed against them, but all of them are condemned to spend the rest of their lives “with the knowledge that the degrading photo or film may still exist, and may at any moment be being watched and enjoyed by someone” (Sharpe, at para. 92; see also R. v. Snowden, 2023 ONCA 768, 432 C.C.C. (3d) 52, at para. 93).
[34] The crimes of possession of and accessing child pornography thus cause serious social harm and victimize “the most vulnerable members of our society” (Friesen, at para. 1). The guidance provided in Friesen is fully applicable to these crimes. In that case, this Court noted that it is important that “sentences for sexual offences against children correspond to Parliament’s legislative initiatives and the contemporary understanding of the profound harm that sexual violence against children causes” (para. 107; see also R. v. Bertrand Marchand, 2023 SCC 26, at para. 31; R. v. R.P.A., 2025 ABCA 300, at para. 104). As I explain later, the sentences imposed for the offences of possession of and accessing child pornography must reflect the fact that Parliament has increased the maximum sentences for these crimes and indicated that the objectives of denunciation and deterrence must be given primary consideration for such offences (s. 718.01 Cr. C.). This provision has the effect of limiting the discretion of sentencing judges, although they can give “significant weight” (Friesen, at para. 104) to other objectives, including “restorative sentencing goals” (see Gladue, at para. 43) such as rehabilitation (Bertrand Marchand, at para. 28, citing R. v. Rayo, 2018 QCCA 824, at paras. 102‑8).
[35] Proportionality, whose constitutional dimension is enshrined in s. 12 of the Charter (R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 41; R. v. Bissonnette, 2022 SCC 23, [2022] 1 S.C.R. 597, at para. 52), nevertheless remains the central tenet of sentencing. “[W]hatever weight a judge may wish to accord to the objectives [listed in s. 718], the resulting sentence must respect the fundamental principle of proportionality” (Nasogaluak, at para. 40 (emphasis in original); see also R. v. J.W., 2025 SCC 16, at para. 42). As the principle of proportionality requires only consideration of the gravity of the offence and the degree of responsibility of the offender, it performs a limiting function with respect to the objectives of sentencing. It therefore has the effect of limiting the pursuit of other objectives (Nasogaluak, at para. 42). In other words, these other objectives do not render a sentence more proportional or less proportional; rather, proportionality imposes a limit on their pursuit.
[36] It must also be remembered that “criminal justice responses alone cannot solve the problem of sexual violence against children” (Friesen, at para. 45). The protection of children is one [translation] “of the essential and perennial values” of our society (R. v. L. (J.‑J.) (1998), 1998 CanLII 12722 (QC CA), 126 C.C.C. (3d) 235, at p. 250; Friesen, at para. 42), but it would be unwise to believe that the infliction of punishment, which occurs after the harm is done, can on its own protect children from the dangers of child pornography. The Criminal Code also provides that “[t]he fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives” (s. 718). In light of that indication from Parliament, Vauclair J.A. was entirely correct in observing the following in V.L. v. R., 2023 QCCA 449:[translation] . . . it is doubtful that the role of the courts is to eradicate any kind of criminal conduct . . . . Setting an unrealistic and unattainable objective can only undermine public confidence in the administration of justice. It must be remembered that the courts are first and foremost only a link in the chain of interventions meant to protect society. Once again, the courts participate, along with crime prevention initiatives, in maintaining a just, peaceful and safe society. Their role, if it must be identified, is to impose just sanctions. [Emphasis in original; para. 41.] [37] I agree with my colleagues that child pornography is a scourge that is profoundly wrongful and harmful towards children. However, I conclude this section by noting this Court’s recognition that there is no incongruity between emphasizing the severe harms and wrongfulness associated with sexual offences against children and finding that minimum sentences are unconstitutional (see Bertrand Marchand, at para. 167). The finding that the mandatory minimum sentences challenged in this appeal cover a wide range of circumstances and in some cases require the imposition of cruel and unusual punishment is at the heart of the constitutional debate before us. It has no effect on the scope of the guidance provided in Friesen or on the fact that crimes related to child pornography, like other sexual offences against children, are serious crimes that often justify severe penalties. . R. v. Terwilligar
In R. v. Terwilligar (Ont CA, 2025) the Ontario Court of Appeal considered child sex offence 'prohibition orders' under CCC 161:A s. 161 order was available to the sentencing judge
[22] The sentence appeal is focused on the availability of an order under s. 161 of the Criminal Code. Section 161 provides:161 (1) When an offender is convicted, or is discharged on the conditions prescribed in a probation order under section 730, of an offence referred to in subsection (1.1) in respect of a person who is under the age of 16 years, the court that sentences the offender or directs that the accused be discharged, as the case may be, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, shall consider making and may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from [Listed prohibitions omitted. Emphasis added.] [23] The appellant argues that the reference to “a person who is under the age of 16 years” limits the scope of s. 161 to situations where an actual child has been the subject of criminal conduct under one of the listed prohibitions. According to the appellant, as no child was the victim of his conduct (since his communications were with an undercover officer posing as a child), no order under s. 161 was available to the sentencing judge.
[24] The appellant contrasts the language of s. 161 with the description of the child luring offence under s. 172.2(1) which refers both to a person who is under 18 years of age, or a person who the offender believes is under 18. Section 172.2(1) states:172.2 (1) Every person commits an offence who, by a means of telecommunication, agrees with a person, or makes an arrangement with a person, to commit an offence
(a) under subsection 153(1), section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2) with respect to another person who is, or who the accused believes is, under the age of 18 years;
(b) under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280 with respect to another person who is, or who the accused believes is, under the age of 16 years; or
(c) under section 281 with respect to another person who is, or who the accused believes is, under the age of 14 years. [Emphasis added.] [25] According to the appellant, Parliament intended an order pursuant to s. 161 only to apply in situations where an actual child was present in the commission of the offence rather than an undercover officer. Had Parliament intended such orders to apply where undercover officers are involved, the appellant contends that it would have amended s. 161 to include “or who the offender believed” language.
[26] The Crown highlights that the Supreme Court in R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at paras. 44-48, and this Court in R. v. J.D., 2021 ONCA 376, 156 O.R. (3d) 126, at para. 58, leave to appeal refused, [2021] S.C.C.A. No. 297, affirmed that the objective of s. 161 orders is to protect children from individuals who have committed child sex offences and give courts tools to prevent those posing a risk to children from having access to them. The Crown argues that the appellant’s interpretation of s. 161 cannot be reconciled with the protective purpose of s. 161.
[27] The Crown further relies on the analysis undertaken by Stribopoulos J. (then of the Ontario Court of Justice) in R. v. Barnes, 2018 ONCJ 302, 141 O.R. (3d) 509, interpreting s. 161. In Barnes, Stribopoulos J. explained that interpreting "a person who is under the age of 16 years" as requiring an actual child would insert an arbitrary distinction into the legislative scheme governing the availability of s. 161 orders: although offenders who commit a listed offence involving an actual child could be subject to a prohibition order, other offenders who may pose a similar or even greater risk to children, would not be. Arbitrarily excluding some offenders would be at odds with the protective and preventative purpose of s. 161.
[28] The sentencing judge rejected the appellant’s argument in his reasons, explaining:I agree with the Crown’s submission on this, and what some of the cases have found, that a purposive interpretation of the legislation is proper, and that contemporary statutory interpretation would invite extending the protective goal of Section 161 to cases involving police filling the place of young children. So, notwithstanding there not being a young child involved, that the Section is properly invoked. I am satisfied that the offending for which the Accused has been found guilty does support a finding that he poses some future risk to teenage and/or pubescent girls, and, therefore, the Order is properly put in place to minimize that risk. The Order will be for a period of eight years. [29] I agree with the sentencing judge that s. 161, properly interpreted, was available to him.
[30] The sentencing judge adopted the interpretive approach Stribopoulos J. set out in the following passage in Barnes, at para. 82:In summary, understood in isolation, the plain meaning of the words “a person who is under the age of 16 years” suggests an interpretation that does not reach situations where an offender commits an offence listed in subsection (1.1) by communicating with an undercover police officer posing as a child. But plain meaning alone is not decisive. Read as required by the modern approach, in context, remembering the purpose of section 161, supports an interpretation that makes a prohibition order available to a sentencing judge where an offender commits a listed offence believing that their interlocutor was “a person under the age of 16 years.” Importantly, this interpretation best achieves a harmonious reading of the whole of section 161. Accordingly, this is the correct interpretation. [31] This interpretation of s. 161 also is consistent with s. 12 of the Interpretation Act, R.S.C. 1985, c. I-21, which provides: “Every enactment is deemed remedial, and shall be given such fair, large and liberation construction and interpretation as best ensures the attainment of its objects.” The object of s. 161 is to protect children, and the interpretation set out in Barnes best ensures the attainment of that object.
[32] In M.K. v. R., 2010 NBCA 71, 261 C.C.C. (3d) 359, Robertson J.A. made a similar point in rejecting a similar argument from the appellant in the case before him involving a conviction for possession of child pornography, at para. 28:I find no justiciable reason to read down s. 161 so as to perpetuate the understanding that the section only applies if there is an actual victim. True, all of the offences listed in s. 161, other than s. 163.1, involve an actual victim. The fact remains that Parliament chose to make s. 161 apply also to the offence of possessing child pornography. Furthermore, Parliament decided that child pornography would include both photographic and digital images of actual children, and pornographic drawings or illustrations of children. It matters not how the images came into existence; what matters is that the images exist and that they come within the definition of child pornography set out in s. 163.1(1). With great respect, the appellant has not laid the foundation for an interpretative argument that warrants further consideration. [33] While neither Robertson J.A. in M.K. or Stribopoulos J. in Barnes addressed the wording of the offences in s. 172.2 of the Criminal Code, I see no basis in the wording of the child luring offence that would lead to a different conclusion on the availability of s. 161 orders for those convicted of this offence (whether based on a victim who was a child or an undercover police officer who the offender believed to be a child). Indeed, the fact that the wording of s. 172.2 expressly includes a person who engages in the prohibited activity with someone they believe to be a child, and that this offence is listed as one of the offences to which a s. 161 order may apply, reinforces that s. 161 is available in these circumstances.
[34] Section 161 comes into play when someone is convicted of one of the listed offences and is found by a sentencing judge to pose an ongoing and/or future risk to children. This is a finding the sentencing judge clearly made in the context of the appellant.
[35] I see no error in the sentencing judge’s analysis of the availability of s. 161, or in the actual order made in relation to the appellant.
|
