Accused edited 74 child pornography films during three years working for co-accused employer. Accused was kept for three days due to adjournment Crown obtained to prevent destruction of evidence on computer although concern was eliminated before three days passed. Accused claimed he was not given his OCD medication on first or second day in custody, was tripped and hit on back of head, was kept in cell overnight dressed only in boxer shorts with no mattress or covers, was given little to drink or eat, and that guards told other inmates of reason for his arrest. Trial judge held that loss of three days’ liberty due to adjournment was arbitrary detention violating accused’s rights under s. 9 of Canadian Charter of Rights and Freedoms and that state agents’ treatment of accused infringed accused’s rights under s. 7 of Charter but declined to enter stay of proceedings. After accused pleaded guilty and was convicted of making child pornography, trial judge sentenced accused to conditional sentence of 21 months to be served in community. Trial judge noted that accused had no criminal record, that nature of charge was at lower end of spectrum, that term of imprisonment would not be proportionate to accused’s role, that accused’s risk of suicide in jail was very high, and held that this was exceptional case requiring override of mandatory one-year prison term for offence. Crown appealed. Appeal allowed; sentence set aside and substituted with 21-month imprisonment sentence, operation of which was to be stayed given accused’s completion of conditional sentence and absence of penological principle or state interest in his re-incarceration. Trial judge erred in finding that accused’s rights under ss. 7 and 9 of Charter were infringed. Trial judge erred in invoking s. 24(1) of Charter to impose sentence outside statutory limits for offence. Trial judge assessed state-imposed psychological stress subjectively based on effects on accused who was susceptible to anxiety and stress due to OCD, rather than on objective basis as required by s. 24(1). Trial judge could have fashioned effective remedy for state conduct within confines of Part XXIII of Criminal Code. If significant bodily harm and repeated assaults on accused in Supreme Court of Canada case did not meet threshold of “exceptional case” for application of s. 24(1) to reduce sentence to outside statutory limits, this case clearly fell short of that threshold.
R. v. Donnelly (2016), 2016 CarswellOnt 20585, 2016 ONCA 988, David Watt J.A., Gloria Epstein J.A., and M. Tulloch J.A. (Ont. C.A.); varied (2014), 2014 CarswellOnt 15683, 2014 ONSC 6472, Nordheimer J. (Ont. S.C.J.).