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| John L. Hill |
Dr. Scott Woodside, who had dealt with Snowden since 2003, diagnosed the problem with Snowden as having multiple disorders, including pedophilia, hebephilia, transvestic disorder with fetishism, exhibitionistic disorder, sadomasochistic interests, conduct disorder, anti-social personality disorder, and alcohol and cannabis use disorder. He was certainly not the man one would want to babysit the children.
Snowden was 34 years old in August 2018 when he had his first run-in with the police. Less than a month later, police seized devices containing more photos and videos of child porn. He was arrested for possession of child pornography, accessing child pornography and making it available to others on a peer-to-peer network. He was released on bail. Again, in November, more devices were seized. Further seizures were made in May, June and December 2019. In total, the police seized 2,730 images and 99 videos depicting child pornography. As well as the photographic depictions, Snowden participated in Internet chats urging others to engage in child abuse.
When he went to trial in 2021, he pleaded guilty to child pornography offences. The Crown urged Ontario Court of Justice Judge Apple Newton-Smith to impose a dangerous offender or long-term offender designation. Instead, the sentencing judge imposed a five-year sentence with several ancillary orders (R. v. Snowden 3021 ONCJ 597). The Crown appealed. Appeal Court Justice Gary Trotter wrote for a unanimous three-judge panel to allow the appeal, setting aside the sentence imposed and ordering a new hearing (R. v. Snowden 2023 ONCA 768).
The error the trial judge made was in incorrectly determining if the child pornography findings amounted to a serious personal injury offence (SPIO) as defined in s. 782 of the Criminal Code. The Court of Appeal interpreted the leading case of R. v. Steele 2014 SCC 61, which required courts to make a case-by-case determination if the facts proven at trial meet the criteria for an SPIO.
To find that a serious personal injury offence has been committed, the indictable offence committed must be punishable by a sentence of 10 years or more. After 2015, the Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, increased the maximum sentence for making child pornography available from five years to 14 years. Even if some offences do not qualify as SPIOs by definition, Steele still requires the court to examine how the offence was committed to ensure it denotes personal violence or endangerment.
In analyzing how possession of child pornography might inflict serious harm upon a child, the court adopted the reasoning of Chief Justice Beverley McLachlin in R. v. Sharpe 2001 SCC 2, where she noted that even if the owner of child pornography had no physical contact with the child, ownership of the product signifies the marketability and demand for increased production of the material that ultimately will inflict serious mental harm to the child.
Even though the trial judge reviewed these authorities and others, the stated conclusion was, “Mr. Snowden’s actions may be a contributing factor to the perpetuation of the harm suffered by these victims … but I cannot say that [Snowden] is a cause of the severe psychological damage that they suffered.” The Appeal Court found this was an overly restrictive approach to defining an SPIO.
Once the court determined that the trial judge erred in law in not concluding that an SPIO offence had been committed, the question became one of remedy. Ordinarily, an appeal court would vary the sentence or dismiss the appeal without the power to remit the case back to the sentencing judge for a new hearing or further consideration (R. v. Abdelrazzaq 2023 ONCA 231). However, s. 759(3) of the Code provides an exception that allows the court to have the trial judge reconsider the matter in light of the comments of the appeal panel. That is what was ordered. It also suggested the same judge should be involved due to the voluminous evidence she had to consider in the first instance.
Does this mean that Snowden will eventually be designated a dangerous offender? As the court pointed out early in the judgment, finding the SPIO offence is only the first step. Even if the trial judge amends her finding, further steps must be taken before making the determination. Stay tuned as the saga continues.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.
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