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[22] Notwithstanding the submissions of the Crown, the trial judge imposed consecutive sentences for the two possession of child pornography charges. He summed up his reasoning as follows:
172 The two offences occurred over a year apart, and involved different complainants. The Offender’s ‘accomplices’ were also different in each case. I therefore conclude that though the two offences are very similar in that both involved the Offender coming into possession of a private use material that involved a teenage girl, these were two separate transactions. I will later in the judgment comment on the application of the ‘totality principle’, and whether those sentences should be decreased on that basis.
Earlier in his reasons (at paras. 50-3) the trial judge had concluded, after discussing the relevant case law, that concurrent sentences were not appropriate for convictions arising out of separate transactions, involving separate victims.
[23] The two possession of child pornography charges were very similarly worded:
1. On or about the 5th day of September, 2008, at or near Athabasca, in the province of Alberta, did have in his possession child pornography, of S.C. contrary to section 163.1(4) of the Criminal Code.
. . .
5. On or about the 5th day of September, 2008 A.D., at or near Athabasca, in the province of Alberta, did have in his possession child pornography, of J.W. contrary to section 163.1(4) of the Criminal Code.
The wording of the two counts is identical, except for the identification (by initials) of the person depicted in the images.
[24] It can be seen from the wording of the two counts that the trial judge was in error in concluding that the “two offences occurred over a year apart”. Both counts contain the same offence date, namely September 5th. It is on that date that the appellant was found in possession of the materials, and that is the foundation of the offences. It is true that the evidence revealed that the recordings were made over a year apart, but the appellant had been acquitted of the charges of making pornography. The trial judge was similarly in error in stating that the appellant had “different accomplices” for the two charges; while different male partners were involved in making the recordings, the appellant’s “possession” of the materials on September 5th did not involve any accomplices.
[25] The trial judge’s description of the two teenagers shown in the recordings is problematic. It is true that there are different teenagers in the different images, and they are also clearly “victims” of the child pornography. But they are not fully “different complainants” as that term is used in the case law on consecutive sentencing. They are individually mentioned in the two counts, primarily to identify more precisely the material underlying the charge. Where the charge is “possession” the offence is made out whether or not different persons are depicted in different images. For example, 10 images of child pornography involving the same child could support 10 different charges.
[26] It is common in pornography cases for the accused to be found in possession of hundreds, and even thousands of images. Theoretically, the Crown could lay a separate charge for each image, but the thousands of convictions that would result would not justify consecutive sentences. The act of possession occurs on a particular date, at a particular time, and the number of images (as well as the content of the images) is generally dealt with as an aggravating factor in sentencing.
[27] In practice, the Crown lays one charge of possession for the multiple images, and argues that a greater number of images warrants a higher sentence. Indeed, during this trial the Crown applied to collapse the two possession counts into one. That application was dismissed, but during sentencing counsel for the Crown stated:
The Crown: Yes. Yeah. And to address that point, sir, you’ll recall I fell on my sword and said I had made a mistake on the indictment and wanted to have one global count of child pornography.
The Court: Yes.
The Crown: And ‑‑ and whether we did four and a half or four and a half consecutive for the two that are here today, my range is a global range of six to nine months. It can be one sentence, concurrent one to the other. That ‑‑ that’s fair. (AR p. 17, l. 27-36)
The Crown argued the appellant was somehow estopped by his successful resistance of the application to join the two counts, and could not now argue that they were not separate transactions. No such estoppel arises. This particular component of this appeal does however demonstrate that the Crown’s recommendation of concurrent sentences was based in principle. The trial judge’s reasoning why the two counts could not be collapsed into one foreshadowed the subsequent error in characterizing them during sentencing as unrelated transactions.
[28] The case law shows that the courts consistently impose a single sentence for the single act of possession of pornography, even when thousands of images are involved: see for example, R. v Gauthier, 2008 ABCA 39 (CanLII), 425 AR 267 (over 2,000 images); R. v Peterson, 2006 ABPC 177 (CanLII), 402 AR 372 (over 7,000 images). It is considerations of that nature that likely were behind the Crown’s position that concurrent sentences were appropriate here. By analogy, if the accused was found with 6 spitballs of cocaine in separate pockets, and the Crown chose to lay 6 separate charges of possession of cocaine, it would still not be appropriate to impose consecutive sentences. Ten convictions for break and enters in the same day would result in 10 sentences, but while the global sentence must reflect the number of events, it would still not be appropriate to impose consecutive sentences without regard to the total. As the Crown pointed out in this case, it did not make any difference if there were two nine-month concurrent sentences, or two consecutive 4.5 months sentences.
[29] The trial judge’s treatment of the two possession offences as separate transactions arose from his analysis that the recordings were “private use materials”, and were legal when made. They only became illegal when they came into the possession of the appellant, and accordingly he concluded that the “moment of illegality” was at the time of transfer. Correspondingly, that was when the appellant’s possession commenced. But the appellant was not convicted of “making” the pornography under s. 163.1(2), either in the sense of him making the physical recordings, or in the sense that he “made them illegal” by taking possession of them. Specifically, he was never charged with or convicted of “transferring” the pornographic materials, which is a separate offence of “transmitting or distributing” pornography under s. 163.1(3). The appellant was charged only with “possession” under s. 163.1(4), not “making” or “transmitting”. He was only charged with possession on one fixed day, and all of his “possession” on that day was a single transaction.
[30] In this case the Crown chose to lay a separate charge for each set of images of each of the teenagers. (There were in fact multiple images of each of them.) The Crown was entitled to proceed in this fashion, and likely did so because there were companion charges of “making” pornography for each of the “possession” charges. The trial judge, however, mis-characterized the latter charges. He essentially sentenced the appellant for a crime of which he was neither charged nor convicted.
[31] As noted, it is within the discretion of the trial judge to impose consecutive sentences. However, the mis-characterization of the two offences by the trial judge reflects an error of principle, calling for appellate intervention. On the offence date the appellant was found in possession of a number of images of child pornography. While separate charges were laid, all of his “possession” was closely related, and the sentences should have been based on them being very closely related transactions. The Crown’s submission for concurrent sentences was reasonable, and should have been accepted.
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