R. v. Keough, 2011 ABQB 312

Court of Queen ’ s Bench of Alberta Citation: R. v. Keough, 2011 ABQB 312 Date: 20110509 Docket: 090409517Q2 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Jason Andrew Keough Accused Restriction on Publication: By Court Order, information that may identify the Complainant or Witnesses described in this judgment as the Complainant or Witnesses May not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application.

See the Criminal Code , s. 486.4 _______________________________________________________ Oral Reasons for Judgment on Sentencing of the Honourable Mr. Justice Don J. Manderscheid _______________________________________________________ 1. Introduction: Offender Misconduct........................................................................ Page: 3 A. S.C. / M.A. Recording - Child Pornography Possession #1................. Page: 4 B. J.W. / C.V. Recordings - Child Pornography Possession #2............... Page: 4

C. L.C. / S.H. Recordings - Voyeurism and Making Voyeuristic Materials Page: 4 2. Proposed Sentences............................................................................................. Page: 5 3. Cases and Authorities Cited................................................................................ Page: 6 A. By the Crown.............................................................................................. Page: 6 B. By the Defence........................................................................................... Page: 6 C.

Comparable Sentences............................................................................ Page: 6 i. Crown Comparator Sentencing Cases....................................... Page: 7 a. Possession of Child Pornography................................... Page: 7 b. Voyeurism........................................................................... Page: 8 ii. Defence Comparator Sentencing Cases.................................... Page: 8 a. Possession of Child Pornography................................... Page: 8 b. Voyeurism...........................................................................

Page: 9 4. Sentencing Analysis............................................................................................ Page: 10 A. Relevant Criminal Code Provisions..................................................... Page: 10 B. Principles of Sentencing......................................................................... Page: 10 C. Approach to Sentencing......................................................................... Page: 12 D. Criminal Code , s. 164.1(4) Minimum Sentence.................................. Page: 12 E. Concurrent vs.

Consecutive Sentences................................................ Page: 13 i. Separate Transactions................................................................ Page: 13 ii. The Totality Principle................................................................... Page: 14 F. Child Pornography Convictions.............................................................. Page: 15 i. Sentencing in Child Pornography.............................................. Page: 15 ii. Private Use Materials as Child Pornography........................... Page: 18 iii.

Sentences for Illegal Activities with Private Use Materials...... Page: 20 iv. Aggravating and Mitigating Factors in Private Use Material Offences Page: 22 a. Intrusion in the Privacy of the Young Person................. Page: 22 b. Age of the Participants.................................................... Page: 23 c. Nature of the Private Use Materials............................... Page: 24 d. Kinds of Acts Depicted................................................... Page: 24 e.

Involvement by the Offender in Defeating Private Possession and Control........................................................................................... Page: 25 f. Involvement of the Offender in Creating Private Use Materials Page: 26 g. Relationship to the Private Use Participant.................. Page: 26 h. Knowledge of the Age of the Private Material Participant Page: 28 v. Aggravating and Mitigating Factors Specific to this Case..... Page: 29 a. Multiple Copies and Compilation Recordings.............. Page: 29

b. Deceit in Private Material Retention.............................. Page: 30 c. Retention of the Materials............................................... Page: 30 d. No Guilty Plea................................................................... Page: 31 e. Character of the Offender............................................... Page: 31 e. Offender Conduct while on Pretrial Bail........................ Page: 32 f. Effect on the Victims........................................................ Page: 32 vi. Sentence - Possession of Child Pornography......................... Page: 33 vii.

Consecutive or Concurrent Sentences...................................... Page: 36 G. Voyeurism Convictions........................................................................... Page: 36 i. Sentencing for Voyeurism Offences.......................................... Page: 36 ii. Comparable Offence Sentences............................................... Page: 37 iii. Principles of Sentencing For Voyeurism Offences.................. Page: 39 iv. Aggravating and Mitigating Factors.......................................... Page: 40 a. Nature of the Intrusion......................................................

Page: 41 b. Intention of the Voyeur..................................................... Page: 41 c. Planned and Premeditated Illegal Conduct.................. Page: 42 d. Conspiracy and Paid Collaboration.............................. Page: 42 e. Planning and Sophistication of the Voyeurism............. Page: 42 f. Character of the Offender............................................... Page: 43 g. Effect on the Victim.......................................................... Page: 43 v. Sentence - Engaging in Voyeurism........................................... Page: 44 vi.

Sentence - Copying Voyeuristic Materials................................ Page: 46 viii. Consecutive or Concurrent Sentences...................................... Page: 46 H. Totality Principle....................................................................................... Page: 47 I. Ancillary Orders........................................................................................ Page: 48 a SOIRA Order................................................................................ Page: 48 b. DNA Samples.............................................................................. Page: 48 c.

Property Forfeiture....................................................................... Page: 48 d. Criminal Code, s. 161(1) Public Activity Restriction................ Page: 49 5. Conclusion............................................................................................................ Page: 51 1. Introduction: Offender Misconduct [ 1 ] On January 26, 2011, Jason Andrew Keough [the “Offender”] was found guilty of:

1. two charges of possession of child pornography ( Criminal Code , R.S.C. 1985, c. C-46, s. 163.1(4)), 2. one charge of engaging in voyeurism ( Criminal Code , s. 162(1)), and 3. one charge of having made voyeuristic materials ( Criminal Code , s. 162(4)). [ 2 ] The Offender was found not guilty of two charges of making child pornography ( Criminal Code , s. 163.1(2)) and one charge of being a person in authority or trust who touched a young person for a sexual purpose ( Criminal Code , s. 153(1)(a)). The trial decision is reported as R. v.

Keough , 2011 ABQB 48 . [ 3 ] My findings of fact in relation to the various offences are detailed in the trial judgment. In introduction I will briefly review the circumstances of the three offence groups. Each offence involved one or more videocassette recordings of a couple engaged in sexual activities. All these recordings were recovered by the RCMP from the Offender’s bedroom. A. S.C. / M.A. Recording - Child Pornography Possession #1 [ 4 ] S.C., a 15 year old girl, and M.A., her 18 year old boyfriend recorded their consensual sexual activities with a video camera provided by the Offender.

S.C. asked that the recording be destroyed, but instead it was given to the Offender. S.C. was neither told of nor authorized that transfer. I rejected M.A.’s claim he gave the recording to the Offender so that the Offender could destroy the recording; I concluded that transfer was probably in exchange for some form of consideration from the Offender. B. J.W. / C.V. Recordings - Child Pornography Possession #2 [ 5 ] A 16 year old girl, J.W., and her 20 year old boyfriend, C.V., recorded their consensual sexual activities with a video camera provided by the Offender.

One or both of this couple resided with the Offender. They testified that these recordings were coerced by the Offender, who demanded this couple record their sexual activities in exchange for the opportunity to visit together. [ 6 ] I rejected the testimony of both J.W. and C.V. on most aspects of how and why the recordings were made. I concluded that the recordings were made for the couple’s own use, but that at some point C.V. transferred those recordings to the Offender without J.W.’s knowledge or consent.

Again, I concluded that this transfer was probably in exchange for some form of consideration from the Offender. C. L.C. / S.H. Recordings - Voyeurism and Making Voyeuristic Materials [ 7 ] L.C. and S.H. described their relationship as “friends with benefits”. Both were 18 years old when they met and had sex in the Offender’s spare bedroom. S.H. and the Offender had an arrangement where the Offender recorded S.H. and L.C. having sex in the spare bedroom. That occurred on three occasions. The Offender deployed and concealed a video camera in the spare bedroom, the couple then arrived and were recorded having sex.

L.C. was unaware she was recorded. On one of these occasions, the Offender paid S.H. $200 in exchange for his

part in this arrangement. [ 8 ] The three sets of recordings were recovered in a number of different versions, and in certain instances assembled together into ‘compilation’ tapes.

[ 9 ] It now falls to this Court to determine and impose a fit and proper sentence on the Offender. The Crown and the Defence have a very different view on what that appropriate sentence would be. 2. Proposed Sentences [ 10 ] The Crown submits: 1. the voyeurism possession and copying offences warrant a nine month sentence, to run concurrently, and 2. the two child pornography possession offences deserve a six to nine month concurrent sentence. [ 11 ] In total, the Crown advocates a sentence that would globally be 15 to 18 months, and suggests imprisonment should be followed by two or three years probation.

The Crown also requests a number of ancillary orders: 1. a restriction from locations or activities that bring the Offender into proximity with children ( Criminal Code , s. 161); 2. forfeiture of the child pornography and voyeuristic materials - ie. the recordings ( Criminal Code , s. 164(4)); 3. a DNA sample for forensic analysis and storage ( Criminal Code , s. 487.051); and 4. registration of the Offender as a sex offender [a “ SOIRA ” order] ( Criminal Code , s. 490.012). [ 12 ] The Defence argues shorter sentences are appropriate: 1. a suspended sentence is adequate for the voyeurism possession and making offences; and 2. the two child pornography possession offences warrant a total 45 day sentence followed by probation. [ 13 ] The Defence further submits that in the event that the Court does sentence the Offender to incarceration between 45 to 90 days, that he be permitted to serve that sentence on an intermittent basis given that the Offender’s mother is in ill health and it is the Offender’s desire to assist her with her illness.

The Defence is not opposed to a post-incarceration period of probation. [ 14 ] The Defence agrees the DNA order and forfeiture as requested by the Crown are appropriate. The Offender takes no position with respect to the SOIRA order, but argues a s. 161 order is inappropriate given the nature of the Offender’s illegal actions. 3. Cases and Authorities Cited A. By the Crown [ 15 ] Case law: R. v. Weinheimer , 2007 ABPC 349 , 431 A.R. 126; R. v. Taylor (December 3, 2008), Okotoks 080575426P1 (Alta.

Prov. Ct.); R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45l; R. v. Kwok (2007), 72 W.C.B. (2d) 533, (Ont. Sup. Ct. J.);R. v. Johnston, 2009 ONCJ 628; R. v. Hutchings, 2010 ONCJ 214; R. v. Gauthier, 2008 ABCA 39, 425 A.R. 267; R. v. Hammond,2009 ABCA 415, 469 A.R. 317; R. v. Johnston, 2010 NLTD 117 , 2010 NLTD(G) 117, 299 Nfld. & P.E.I.R. 43; R. v. Arcand,2010 ABCA 363, 264 C.C.C. (3d) 134; R. v. Proulx, 2010 MBQB 58, 250 Man.R. (2d) 254; R. v. P.M. (2002), (ONCA), 155 O.A.C. 242, 53 W.C.B. (2d) 408 (Ont. C.A.); R. v. Nagarkar (March 3, 2011), Edmonton C013705277 (Alta. Prov.

Ct.). [16] Other authorities: Voyeurism as a Criminal Offence: A Consultation Paper 2002 - Department of Justice Canada; Key ChildProtection Reforms and Voyeurism Offences to Come into Effect - Press Release October 26, 2005; Statistics Canada-Incident BasedCrime Statistics-Results. B. By the Defence [17] Case law: R. v. Slapak, 2010 ABPC 177; R. v. Peterson, 2006 ABPC 177, 402 A.R. 372; R. v. L.W., 2008 BCPC 281; R. v.H.T., 2010 MBPC 8, 250 Man.R. (2d) 86; R. v. Proulx, 2009 MBPC 13, 237 Man.R. (2d) 313, reversed 2010 MBQB 58, 250 Man.R.(2d) 254; R. v. Kostas, 2008 ONCJ 224, 77 W.C.B. (2d) 269; R. v.

Decker, 2008 NSPC 43, 268 N.S.R. (2d) 254; R. v. S.M., 2010 ONCJ347. C. Comparable Sentences [18] As I will later discuss in more detail, a key principle of sentencing is that similar offenders who engage in similar illegalconduct should receive comparable sentences. Both the Crown and Defence have identified cases that they suggest are usefulcomparators. i. Crown Comparator Sentencing Cases a. Possession of Child Pornography [19] In R. v. Kwok, a 29 year-old accused with no record entered a guilty plea for possessing child pornography (part-way throughtrial). One year imprisonment was ordered.

The Court rejected the offender’s explanation for the material as relating to his sexualexperiences as a child and concluded the offender was not remorseful and lacked insight into the nature of his misconduct (at para. 43).The volume and extreme character of the pornography identified was an extremely aggravating factor (para. 48). [20] The Alberta Court of Appeal in R. v. Gauthier confirmed a one year prison sentence for possession of child pornography. Theoffender was found to have possession of “approximately 2,000 still images and 100 movies of child pornography” on his computer.

Hehad an unrelated criminal record, and favourable professional evaluations that indicated a low risk of re-offence. [21] In R. v. Hammond, an employed 61-year-old male offender with no criminal record pled guilty to accessing childpornography over a six and one-half year period. There were 456 unique images and 106 unique videos on his computer. The trial judgereviewed a sample of these materials and found them abhorrent. The offender showed no remorse, and was identified as havinglongstanding deviant sexual interests. He was endowed with skills which he had put to good use in society.

The Court of Appealsubstituted a 12 month sentence for the 90 days intermittent sentence ordered at trial. [22] The accused in R. v. Proulx pled guilty to possession of child pornography, a collection of 2,466 child pornography imagescollected over two years that involved a wide range of acts and aged participants, including children engaging in sex acts with adults. Theat-trial sentence of 90 days imprisonment served on an intermittent basis was increased to 8 months on appeal. [23] R. v.

Johnston, 2009 ONCJ 628 involves an offender guilty of invitation to sexual touching, sexual interference, andpossession of child pornography (para. 86). He pled guilty to the last charge (para. 22) and was sentenced to three months imprisonmentfor that offence. The pornography collection was very small, and the offender had strong community support and good prospects for

rehabilitation. [24] The offender in R. v. Hutchings pled guilty to a

summary conviction for possession of child pornography, and received a 4.5month custodial sentence followed by three years probation. The offender was frank about his misconduct (para. 18), had strong support(paras. 19, 23), and was professionally successful (paras. 25-26). [25] R. v. Johnston, 2010 NLTD 117 , 2010 NLTD(G) 117, 299 Nfld. & P.E.I.R. 43 involved a 72 year old former policeofficer who pled guilty to possession of child pornography, an assortment of photos and videos downloaded from the Internet.

Theoffender cooperated with the investigation and assessment, and accepted responsibility for the illegal conduct (para. 17). His formeremployment, and the nature and quantity of the pornography were aggravating factors (para. 18). A 15 month sentence and three yearsprobation were ordered. b. Voyeurism [26] Fradsham P.C.J. in R. v. Weinheimer sentenced an adult male who pled guilty to two years probation for two counts ofvoyeurism.

The offender, an ‘in the closet’ homosexual, had positioned a digital camera to observe the males urinating at his workplace.The collecting of images over time was an aggravating factor (para. 45). The offender’s sexual preference and social issues were anexplanation for his actions, but not a mitigating factor (para. 46). [27] R. v. Taylor involved an adult male who deployed a video camera to record a female neighbor while undressing. The offenderlater showed the recording to a young woman.

The offender pled guilty to voyeurism and making voyeuristic materials, and disclosed hehad also tried to observe other neighborhood females. The offender had a positive pre-sentence report and received a six monthconditional sentence followed by six months probation. Sharing of the voyeuristic material was an aggravating circumstance. [28] An oral and unreported decision of Judge Chrumka, R. v. Nagarkar, resulted in a six month conditional sentence with oneyear probation where a manager of a fast-food restaurant deployed a camera disguised as a pen in a change room used by staff.

Thisdevice was detected by the complainant, whose investigations identified three recordings of herself changing her clothes in the changeroom. The offender acknowledge he owned and had deployed the device, and pled guilty. ii. Defence Comparator Sentencing Cases a. Possession of Child Pornography [29] The Defence cited the Manitoba Provincial Court trial decision of R. v. Proulx which was reversed on appeal, see para. 23above. [30] A 90 day intermittent sentence was ordered in R. v.

Slapak where the offender pled guilty to possession of child pornography.The offender was 18 years old, had some psychological issues, and was found with a small collection of pornography. The Court rejecteda Crown application for a SOIRA order. [31] In R. v. Peterson a 50 year old man pled guilty to possession of a large (3,800 image) collection of child pornography andaccessing child pornography, and received a 90 day custodial sentence and two years probation (para. 33). The pre-sentence report wasneutral (para. 9), but expert assessment concluded there was low chance of re-offence (paras. 10-11).

Some of the child pornography waspurchased, but not of the most serious kind (para. 25). [32] Possession of a very large collection (26,000) of child pornography images and video recordings in R. v. L.W. led to a 60 dayintermittent sentence and two years probation. The majority of the material depicted acts or conduct of intermediate severity (para. 3)

though some more offensive material was also present. The charges proceeded summarily (para. 6). The offender had family support, and acknowledged his illegal conduct and its implications (paras. 8-9). Prospects for rehabilitation and professional development were favourable (paras. 11-12). [ 33 ] R. v. H.T. is another instance where a comparatively lenient sentence, 90 days served intermittently, was ordered where a 72 year old offender with no prior record pled guilty to both possession and distribution of child pornography. The Crown proceeded summarily (para. 2).

The offender purchased pornography from an online source and took steps to conceal his activities (paras. 41-45, 47). Other pornography was traded. Once identified, the offender acknowledged his misconduct and assisted with the police investigation. He lost family support, experienced strong regret for his misconduct, and showed unusual progress and effort in pre- sentence rehabilitation (paras. 80-85). Trial delay was a mitigating factor (para. 122). [ 34 ] The offender in R. v. Decker pled guilty to possession of child pornography, almost 5,000 images, ranging from erotic posing to bestiality (paras. 6-7).

He also had written a number of child pornography stories (paras. 5, 11). The offender was the sole caregiver for an elderly mother with severe physical impediments (para. 16). The Court concluded the offender was remorseful. A 90 day intermittent sentence was ordered. [ 35 ] R. v. Kostas involves unusual facts. An 18 year old male was identified in possession of child pornography of extreme character, and a scrapbook documenting his plan to kidnap, rape and torture a particular young female (para. 11).

The offender was fully cooperative with investigators, pled guilty, had strong family support and was open with psychiatric investigators and therapists. He was identified as a pedophile and possessed abnormal personality traits which together required intensive treatment (paras. 27-29). His unusual cataloguing and preparation activities were an aggravating factor (paras. 12, 47). A 90 day intermittent sentence and three years probation was ordered. b. Voyeurism [ 36 ] In R. v.

Mahabir , the defendant was given a suspended sentence and probation for 18 months for surreptitiously videotaping consensual sexual acts in a hotel room while the complainant was blindfolded. Camera equipment was then deployed without her knowledge and consent. Prior to this photography, she had consented to pictures being taken while she was lying in the bathtub and sipping champagne. 4. Sentencing Analysis [ 37 ] On March 11, 2011, at the close of the sentencing hearing, I reserved my decision on sentencing.

Both the Crown and the Defence each tendered judicial authorities which they argue lend support to their respective positions. I have considered those cases, and in particular the Supreme Court of Canada and the Alberta Court of Appeal decisions, to determine a just and proper sentence for the Offender. A. Relevant Criminal Code Provisions [ 38 ] The sentence ranges for the various offences committed by the Offender are specified by the Criminal Code : 1. Criminal Code , s. 163.1(4), possession of child pornography - imprisonment between 45 days and five years; 2.

Criminal Code , s. 162(1), voyeuristic activities - imprisonment for up to five years; and 3. Criminal Code , s. 162(4), copying voyeuristic materials - imprisonment for up to five years

[ 39 ] The Offender may thus be sentenced for up to five years imprisonment for each of the pornography or voyeurism charges. He faces a minimum sentence of 45 days on the child pornography possession charges. B. Principles of Sentencing [ 40 ] Criminal Code , ss. 718- 718.2 , as elaborated by the common-law, provide the principles that guide sentencing in Canada. The overall purpose of sentencing is to contribute to respect for the law, maintain a just, peaceful and safe society, and suppress future crimes.

On sentencing, the Criminal Code specifies a number of objectives: 1. denunciation of unlawful conduct; 2. to deter the offender from committing this or any other crime again; 3. to send a message to the public and in particular to the offender’s friends, associates and community that behaviour such as that witnessed in this case is not tolerated; 4. to protect the public by separating the offender from the public; 5. to assist the offender in his or her rehabilitation; 6. to provide reparation for harm done to the victim or the community; and 7. to promote responsibility in the offender and encourage the offender to acknowledge the harm that has flowed from his or her misconduct. [ 41 ] For certain offences the Criminal Code emphasizes specific sentencing objectives.

Criminal Code , s. 718.01 instructs that where an offence involves abuse of a person under 18 years of age, then the court “... shall give primary consideration to the objectives of denunciation and deterrence of such conduct.” By definition, s. 718.01 is relevant to the child pornography possession sentences. [ 42 ] The concept of deterrence is explained by Justice Charron in R. v. B.W.P.; R. v.

B.V.N. , 2006 SCC 27 at para. 2 , [2006] 1 S.C.R. 941: Deterrence, as a principle of sentencing, refers to the imposition of a sanction for the purpose of discouraging the offender and others from engaging in criminal conduct. ... [ 43 ] Chief Justice McLachlin in R. v.

Proulx , 2000 SCC 5 at para. 102 , [2000] 1 S.C.R. 61 defined denunciation as: ... the communication of society's condemnation of the offender's conduct. ... a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law. [ 44 ] The Court in R. v. Latimer , 2001 SCC 1 at para. 86 , [2001] 1 S.C.R. 3 stated:

Furthermore, denunciation becomes much more important in the consideration of sentencing in cases where there is a “high degree of planning and premeditation, and where the offence and its consequences are highly publicized, [so that] like-minded individuals may well be deterred by severe sentences”: R. v. Mulvahill and Snelgrove (1993), 21 B.C.A.C. 296, at p. 300 . This is particularly so where the victim is a vulnerable person with respect to age, disability, or other similar factors. [ 45 ] The direction in Criminal Code , s. 718.01 does not mean all other sentencing factors are irrelevant.

As was indicated by Neilson J.A. in R. v. B.C.M. , 2008 BCCA 365 at para. 35 , 259 B.C.A.C. 222, “... the principles of restraint and rehabilitation, while still operative, are given secondary status in offences involving young victims.” C. Approach to Sentencing [ 46 ] Our Court of Appeal in R. v. Arcand , 2010 ABCA 363 , 264 C.C.C. (3d) 134 has provided detailed guidance on the correct approach to sentencing of criminal offenders in Alberta. At para. 299, Watson J.A. listed key general principles of sentencing, some of which relate to specific offences.

In his comprehensive judgment, at paras. 66-70 he also summarizes the manner in which a Court should approach sentencing: 66 The sentencing process in Canada is an individualized one , and always has been. Accordingly, to this day in Canada, sentences continue to be imposed on a case-by-case basis in the discretion of the sentencing court, subject to two limitations, that is where Parliament has prescribed a minimum sentence or a mandatory one.

Four aspects of this individualized process ... merit special mention. 67 First, though individualized to the case, the sentencing process is not exclusively about the offender. The process is also about the harm to the victim and the community from the crime.

Harm properly occupies a prominent place in the sentencing process, representing as it effectively does one of the central elements in the proportionality principle, the gravity of the offence . 68 Second, in the absence of any appellate guidance, the range of possible sentence for most crimes is theoretically broad and thus the margin for potential unwarranted disparity great. 69 [The serious nature of sexual assault should not be understated.] 70 Fourth, to maintain confidence in the criminal justice system, an offender's sentence should be based on the facts of the case - and what he or she did - and not on the philosophy or preferences of the sentencing judge .

Parliament has accepted that some differences in sentences will arise from the human factor. But wide disparities in sentencing untethered to valid distinctions between cases cause serious problems for the criminal justice system - and understandably so . Such disparities undermine the public's trust that the criminal justice system, and the exercise of state power that it involves, will treat people fairly and equally. They also breed disrespect for the law. [Footnotes omitted, emphasis added.] D.

Criminal Code , s. 164.1(4) Minimum Sentence [ 47 ] In November 1, 2005, Criminal Code , s. 164.1(4) was amended to alter the sentence range for a person found in possession of child pornography. Before that date the sentence was up to five years, post-amendment the legislation required a range of 45 days to five years. Criminal Code , s. 718.2(

b) instructs that ‘parity’ should exist between homologous offenders and offences: “... a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”. [ 48 ] The Crown submits that the effect of this amendment is to ‘shift’ the appropriate sentence for any offender towards the five year end of the spectrum. When comparing sentences as required by s. 718.2 (b), a pre-amendment sentence used as a comparator should be ‘inflated’.

[49] I agree. A useful review of this specific issue is provided in R. v. B.C.M., at paras. 25-35. Justice Neilson concluded at para.32: ... It would be inconsistent with proportionality if worse offenders in more serious circumstances, who might have received a one yearsentence prior to Bill C-2, continue to be sentenced to one year under the new regime. The principle that similar offenders should receivesimilar sentences requires acknowledgement that a minimum sentence has a proportionate inflationary effect on the balance of thesentencing range. [Emphasis added.] See also R. v. Hammond, at para. 8. E.

Concurrent vs. Consecutive Sentences [50] When an offender is found guilty of more than one offence, the Court has discretion under Criminal Code, s. 718.3(4)(

c) as towhether the sentences are served one after the other (consecutively), or at the same time (concurrently). In R. v. C.A.M., (SCC), [1996] 1 S.C.R. 500, 194 N.R. 321, Lamer C.J.C. provided the general approach under which sentences should be eitherconcurrent or consecutive. i. Separate Transactions [51] Generally, offences are served consecutively where they arise from “separate transactions”. Recently Côté J.A. in R. v.B.S.M., 2011 ABCA 105 commented on whether sexual interference and making child pornography had occurred in the same or separatetransactions. He observed at para. 30: ...

Closeness in time is not enough. One must ask whether the two crimes were “essentially different in character and involve[d] differentsubject matter”: R. v. Nichols, (1978) 1978 ALTASCAD 136 , 9 A.R. 203 (C.A.) (para. 9) (a reserved decision). [52] R. v. Innerebner, 2010 ABQB 188 includes a recent and helpful review of how a series of similar offences with differentvictims ought to be treated.

In that case a taekwondo instructor was found guilty of sexual assault or interference of 13 complainants.Read J. observed: [137] Sentences for multiple offences should be consecutive unless there is a good reason for making them concurrent: R. v. S.P.M.,2005 NLCA 36 at para. 11; Clayton Ruby et al., Sentencing, 7th ed. (Markham: LexisNexis Canada Inc., 2008) at §14.2. [138] Consecutive sentences should be imposed when multiple convictions are unrelated to one another, or were not part of the same‘transaction’ even if they are similar in fact.

This is a very fact specific determination and it is impossible to set down any hard and fastrule as to when a sentence should be consecutive or concurrent.

Ruby notes several different phrases used in the jurisprudence over theyears to discuss the same concept; “a break in the transaction”, “really separate invasions of the community’s right to peace and order,notwithstanding that they are historically interdependent”, “one multi-faceted course of criminal conduct”, “one transaction”, “part of thesame transaction or endeavour”, “closely linked together”, “one continuous criminal act”, “one single enterprise”, “single criminaladventure”, and “reasonably close nexus”: Sentencing at §14.10 (cites omitted). [Emphasis added.] [53] Justice Read concluded that: ... while the acts were similar, the offences were perpetrated against different victims at different times, over a number of months andyears.

Therefore this is an appropriate case for consecutive sentencing. [Emphasis added.] ii. The Totality Principle

[54] Criminal Code, s. 718.2(

c) directs a sentencing judge that “where consecutive sentences are imposed, the combined sentenceshould not be unduly long or harsh”. This principle, that the overall sentence faced by an offender should not be excessive, is oftenreferred to as the “totality principle”. R. v.

C.A.M., at para. 42, provides the threshold and remedy for an unduly long or harsh sentence.First, a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentencerendered does not exceed the overall culpability of the offender. [55] Chief Justice Lamer quotes Clayton Ruby, Sentencing, 4th ed. (Toronto: Butterworths, 1994) at pp. 44-45: A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentencefor the most serious of the individual offences involved, or if its effect is to impose on the offender "a crushing sentence" not in keepingwith his record and prospects. [56] “Where the total projected sentence is excessive, the individual sentences must then be adjusted below the figure which wouldbe appropriate for each offence taken in isolation, so that the total sentence is proper”: R. v.

Fait (1982), 1982 ABCA 148 , 37A.R. 273, 20 Alta. L.R. (2d) 90 (Alta. C.A.); R. v. Erwin, 2002 ABCA 210 at para. 4, 317 A.R. 379. F. Child Pornography Convictions i. Sentencing in Child Pornography [57] Offences related to child pornography, in any form, constitute perhaps the most horrific and debasing of crimes. There is acommon saying that our children are our greatest resource as they establish our future, children are therefore not only to be cherished butmust be protected.

For that reason, any criminal activity which serves to erode and undermine such protection must be dealt with anddealt with swiftly and to the full extent of the law. [58] Many Court decisions comment upon the harm caused by child pornography. McLachlin C.J.C. in R. v. Sharpe, at paras. 87-94 sets out five types of harm caused by simple possession of child pornography. That included the conclusion that widespread exposureto child pornography may numb the conscience of a potential paedophile and erode inhibitions to act on their impulses.

Childpornography may make the abnormal seem normal and the immoral seem acceptable (paras. 87-88). She also concluded that thewidespread exposure of child pornography fuelled the fantasies of potential paedophiles (para. 89). Child pornography is used to groomand seduce children (para. 91). Outlawing child pornography undermines production of that kind of material and the associated abuse(paras. 92-93). [59] She concluded at para. 158 that: [t]he very existence of child pornography ...is inherently harmful to children and to society.

This harm exists independently ofdissemination or any risk of dissemination and flows directly from the existence of the pornographic representations, which on their ownviolate the dignity and equality rights of children. The harm of child pornography is inherent because degrading, dehumanizing, andobjectifying depictions of children, by their very existence, undermine the Charter rights of children and other members of society. Childpornography eroticises the inferior social, economic, and sexual status of children. It preys on preexisting inequalities. [60] Similarly, Watson J.A. in R. v.

Hammond, while writing for the Court, discussed the policy behind the criminalization of thepossession of child pornography: 9 The Crown has provided us with an extensive analysis of the social policy behind the package of relevant provisions of the

Criminal Code, noting how, despite the fact that virtually the entire world has set its face against this form of gross abuse of children, itremains a virulent pestilence. It is sustained in many places by the conduct of people just like the respondent. If there were no consumersof this material, there would not be producers ... 11 As pointed out by Fraser CJA for this Court in R. v. B.(T.L.) (2007), 218 C.C.C. (3d) 11, [2007] A.J. No. 169 (QL), 2007 ABCA61, the use of the Internet for accessing child pornography constitutes "profound and present danger to children around the world": para.27.

The offence of access to child pornography is an essential ingredient to the actual sexual exploitation of children everywhere. It is acrime committed specifically by choice. No aspect of it is tolerable. It is repugnant to all civilized people ... [61] Justice Watson also in R. v. P.J.B., 2010 ABCA 49 at para. 10, 474 A.R. 161 discussed the attitude of the judiciary to childpornography related offences: As recently reflected by the Supreme Court's decision in R. v. M.(L.), 2008 SCC 31 , [2008] 2 S.C.R. 163, and as expressed bythe Ontario Court of Appeal in R. v.

F. (D.G.) 2010 ONCA 27, at paras. 21 and 22, the initial sentencing response of the courts to thechild pornography provisions was relatively lenient. As the courts and society as a whole are increasingly becoming aware of the extentand effects of such abuse of children, the level of sentencing should be responsive to the gravity of the crime thus revealed ... [Emphasisadded.] [62] A useful but not exhaustive set of mitigating and aggravating factors that apply to possession of child pornography wasdeveloped in R. v. Parise, [2002] O.J. No. 2513 (QL), 54 W.C.B. (2d) 442 (Ont. Ct. J.) and elaborated in R. v.

Mallett, [2005] O.T.C.792 at paras. 15-16, 66 W.C.B. (2d) 725 (Ont. Sup. Ct. J.): 15 ...

As to aggravating features: (1) evidence of production or distribution of child pornography (2) evidence the offender is a pedophile with the attendant risk that the pornography may in some way be instrumental in thephysical victimization of children (3) a criminal record for related offences (4) the degree of intrusion and repulsivity of any sexual acts depicted (5) the very youthful age of the children photographed (6) the larger the quantity of images possessed (7) the manner of acquisition - simple receipt or non-commercial acquisition versus purchases, Internet site purchases, internationalconnections. 16 As to pervasively-recognized mitigating factors beyond those which are the antithesis of the aggravating factors alreadydiscussed, the courts consider: (1) the existence of a guilty plea (2) the youthful age of the offender

(3) evidence of insight into any related psychological problem and a willingness to submit to counselling and treatment (4) participation in counselling or treatment prior to arrest or before sentencing (5) consequential impact of the criminal charge including loss of employment or reputation, effect on familial relationships, economic consequences, etc. (6) especially onerous judicial interim release conditions (7) pre-sentence custody. [ 63 ] Possession of child pornography has usually “resulted in actual terms of incarceration”: R. v. W.E.H.; R. v. Hunt , 2002 ABCA 155 at para. 29 , 303 A.R. 240.

The 2005 amendment to Criminal Code , s. 163.1(4) eliminates the possibility of a conditional sentence served without detention: Criminal Code , s. 742.1. [ 64 ] In

summary, deterrence is one of the most important sentencing objectives in the present case. A Court must attempt to deter all members of the general population from possessing and sharing child pornography to minimize the hands-on sexual abuse of children by those who produce such pornography. Furthermore, given the nature of these offences, it is important for the court, on behalf of the public, to denounce the offender’s conduct. Any sentence should constitute a collective condemnation of this criminal activity. ii.

Private Use Materials as Child Pornography [ 65 ] The parties have both submitted case law that they suggest is helpful to determine what would be the appropriate sentence for the Offender in relation to the child pornography convictions. I have reviewed those cases above. [ 66 ] I conclude that these authorities are of relatively limited assistance. All address possession of what could be called “illegal materials”, materials which no-one is legally allowed to possess as a consequence of the characteristics of the materials and/or how these materials were created.

All those cases involve sexual material that depict children under the age of 14. These materials therefore are recordings of illegal sexual acts ( Criminal Code , s. 163.1(1)(a), R. v. Sharpe ). [ 67 ] Similarly, certain pornographic materials that involve older children are always illegal, for example a recording of sexual activities made for a commercial purpose: R. v. W.E.H.; R. v. Hunt ; R. v. Hewlett , 2002 ABCA 179 , 312 A.R. 165; R. v. Fulton; R. v.

M.L.F. , 2005 ABCA 423 , 376 A.R. 128. [ 68 ] The present case is restricted to a completely different kind of sexually explicit material that involves a person under 18 years of age. In R. v. Sharpe , McLachlin C.J.C. concluded that the child pornography provisions of the Criminal Code were overly broad, offended Charter , ss. 2(

b) and 7, and were not justified under Charter , s. 1. That led the majority of the Supreme Court of Canada to conclude (at para. 128) that two exceptions were required: (

a) The first exception protects the possession of expressive material created through the efforts of a single person and held by that person alone, exclusively for his or her own personal use. This exception protects deeply private expression, such as personal journals and drawings, intended solely for the eyes of their creator. (

b) The second exception protects a person's possession of visual recordings created by or depicting that person, but only where these recordings do not depict unlawful sexual activity, are held only for private use, and were created with the consent of those persons

depicted . [Emphasis added.] [ 69 ] Chief Justice McLachlin described the second category, ‘private use’ materials, in more detail at para. 116: 116 The second category would protect auto-depictions, such as photographs taken by a child or adolescent of him- or herself alone, kept in strict privacy and intended for personal use only. It would also extend to protect the recording of lawful sexual activity, provided certain conditions were met. The person possessing the recording must have personally recorded or participated in the sexual activity in question.

That activity must not be unlawful, thus ensuring the consent of all parties, and precluding the exploitation or abuse of children. All parties must also have consented to the creation of the record. The recording must be kept in strict privacy by the person in possession, and intended exclusively for private use by the creator and the persons depicted therein.

Thus, for example, a teenage couple would not fall within the law's purview for creating and keeping sexually explicit pictures featuring each other alone, or together engaged in lawful sexual activity, provided these pictures were created together and shared only with one another. ... [ 70 ] In the trial judgment I concluded that both the S.C./M.W. and J.W./C.V. recordings were ‘private use’ materials when they were initially created. In other words, these recordings were legal at that time .

Their illegality arose when these materials were transferred to the Offender without the consent of all of the recordings’ ‘owners’ (trial judgment, at paras. 216, 314). [ 71 ] Put another way, the offence occurred when the Offender received and retained the S.C./M.A. and J.W./C.V. recordings. That is the wrongful act.

Further, I concluded in the trial judgment that distribution of ‘private use’ materials was not, intrinsically, illegal (paras. 267-293), however third-party possession of private use materials is always illegal where possession is: 1. without the consent of all persons recorded, 2. obtained by fraud or deception, 3. a result of coercion, threat, or extortion, 4. results in the loss of control of the private use material, 5. in exchange for any form of consideration, or 6. otherwise exploitive or abusive. [ 72 ] At trial, I concluded that the transfer of private use materials offended the first prohibition.

I also believe that the male halves of the two couples, M.A. and C.V., probably received some kind of payment or benefit in exchange for giving the Offender the recordings. That would involve the fifth prohibited transfer category. [ 73 ] To perhaps state the obvious, my conclusions mean that M.A. and C.V. also engaged in prohibited conduct; distribution of child pornography: Criminal Code , s. 163.1(2). I make that conclusion on a balance of probabilities, which is not the standard of proof of a criminal offence. Neither M.A. or C.V. were on trial with the Offender. They were Crown witnesses.

My conclusion therefore strictly relates to the reconstruction of events that led to the Offender’s illegal possession of the private use materials. [ 74 ] Illegal possession of private use materials is thus an offence that flows not from the sexually explicit material and its content - that is legal - but rather from the transfer and retention of that material. I believe that means that sentencing of a person guilty of unauthorized possession of private use materials involves a somewhat different set of sentencing considerations than ‘conventional’ child

pornography. This question is a relatively new issue in Canadian criminal law. While there are many reported sentencing decisions thataddress possession of child pornography that was illegal when produced, but only a few involve illegal possession or distribution ofprivate use materials. As far as I am aware, this is the first reported case where a person was found guilty of illegal possession of privateuse materials. [75] In light of the Offender’s offences the analysis that follows will be restricted to specific sentencing aspects of illegalpossession of private use materials.

That said, it seems to me that some of these principles may be applicable to illegal distribution ofprivate use materials. iii. Sentences for Illegal Activities with Private Use Materials [76] A limited number of Canadian cases have involved illegitimate possession or distribution of private use materials. These werenot identified by either the Crown or Defence as relevant comparators, per Criminal Code, s. 718.2(b). However, I think these other‘private use’ cases are better analogues and guides as this Court determines what would be an appropriate sentence for the Offender. [77] R. v. L.W.; R. v.

Walsh (2006), (ON CA), 208 O.A.C. 42, 206 C.C.C. (3d) 543 (Ont. C.A.) is amultifaceted appeal of a conviction for a guilty plea to having made and distributed child pornography. The sentence was made under thepre-2005 scheme in which there was no minimum sentence for making child pornography (Criminal Code, s. 163.1(2)(a): up to 10 yearsvs. the present 1-10 year range) or distribution of child pornography ((Criminal Code, s. 163.1(3)(a): up to 10 years vs. the present 1-10year range).

At trial the offender was sentenced to two years concurrent prison for each offence, and three years probation (at para. 1). [78] The offender, aged 22, had dated the complainant when she was 15. They took photos of themselves engaged in sexualactivities (para. 4). There does not seem to be any dispute that when created these were private use materials, the ‘owners’ werepresumably both the offender and complainant. Two months later the complainant ended the relationship. The offender did not take thebreakdown of their relationship well: 5. ... The appellant was devastated by this turn of events.

While in the midst of dealing with his devastation, the appellant made acollage. The collage contained photographs that had been taken in Toronto of Ms. J. engaged in explicit sexual acts with the appellant.While part of the appellant's body was shown in the photographs, unlike Ms. J., neither his face nor any other identifying characteristicswere apparent. There were additional photographs of Ms. J., fully clothed, in the collage. The collage included Ms. J.'s name and herplace of residence. ...

The text that accompanied the assembled images aped the Mastercard “priceless” advertising campaign. [79] The “collage” was emailed to a friend and from there spread. It may have been available via file sharing networks (paras. 6-7).The offender admitted he was the creator of the collage. [80] The Court of Appeal rejected several bases for the appeal, including an improper guilty plea (para. 42) and ineffectiverepresentation (paras. 48, 56). However, the offender was successful in having his sentence reduced to time served, which was eightmonths.

The offender obtained pre-appeal release where the hearing judge concluded: I note that this is not the more typical situation where an offender is using the Internet as a business or a hobby to view or distribute childpornography. This was a one time, immature and very unfortunate response to a personal life event. [81] This statement appears to have been endorsed by the Court of Appeal, see paras. 61-63.

While this decision does not engage ina detailed dissection of the characteristics of the offender, it seems his family history, education and employment, and an ongoing stablerelationship were identified as mitigating factors (paras. 57-58). The Court concluded that “... the offences call for a custodial sentence,they do not call for a penitentiary term ...” (para. 63), two years was “harsh and excessive.” (para. 62).

[82] Applying the ‘inflationary’ principle discussed in R. v. B.C.M. and R. v. Hammond, the post-2005 equivalent sentence forthis offender would have been at least one year for both offences. There does not seem to have been a dispute that the two offences oughtto be served concurrently, presumably as both offences arose from the same transaction. [83] In R. v. Schultz, 2008 ABQB 679, 450 A.R. 37, Justice Topolniski encountered a fact situation which in certain waysresembles that in R. v. L.W.; R. v. Walsh.

A 20 year old male offender dated a 16 year old complainant, they met using the Internet.During their relationship they photographed each other individually while posing and engaged in sexual activities (para. 2). Again, thereseems no dispute that at this point these were private use materials. [84] Again, the end of the relationship had unfortunate consequences. The offender was upset and in a public internet forum postedinformation on the complainant as well as her name and address.

That escalated to his posting nude photographs of the complainant,which were repeatedly reloaded when deleted by the internet forum operators (paras. 3-11). The offender also publically messaged thathe would send more photographs to those who asked, and then set up a separate web page that displayed more photographs andinformation (para. 9). [85] The young male did not deny his activities (para. 13), and pled guilty to transmitting child pornography (para. 1). [86] The sentencing hearing addressed a range of issues. One was whether the one year minimum sentence provided in CriminalCode, s. 163.1(3)(

a) was grossly disproportionate and offended the Charter of Rights and Freedoms, s. 12 prohibition against cruel andunusual punishment. Justice Topolniski rejected that proposition and imposed a one-year sentence followed by two years probation(para. 134). A SOIRA order was confirmed (para. 160). [87] The Court reviewed the characteristics of the offender and relevant mitigating and aggravating factors as part of the Charterchallenge to s. 163.1(3)(a). The effect on the victim was traumatic (para. 46). The offender’s work and educational activities wereunexceptional, if not limited (paras. 48-49).

He was a first-time offender (para. 62). His pre-sentence report included problematicelements such as minimization of his offence, putting blame on the complainant, as well as prosecution for harassment and threats toanother girlfriend and breach of the terms of his judicial interim release (paras. 52-56). The guilty plea was of reduced weight (para. 59-60). He had refused the complainant’s request that the photos be destroyed (para. 65). [88] The breach of the young person’s privacy was deliberate and calculated, and continued in the face of police warnings (paras.66-67).

The offender put the complainant at risk by providing personal information (para. 69). At para. 119 Justice Topolniski highlightsthe fact that the offender’s actions meant any control was lost over the private use materials. [89] R. v. Dabrowski, 2007 ONCA 619, 86 O.R. (3d) 721 involved possession and distribution of private use materials, but asentence was not addressed during the appeal or trial. Similarly, R. v. Bono, [2008] O.J. No. 3928 (QL), (Ont. Sup.Ct. J.) addresses private use materials but only in the context of that status being an unidentified but potentially valid defence. iv.

Aggravating and Mitigating Factors in Private Use Material Offences [90] The parties suggested a number of aggravating and mitigating factors, some of which are specific to the child pornographycharges. The special nature of private use materials in a criminal context also warrants commentary. a. Intrusion in the Privacy of the Young Person [91] The survey of Court comment on child pornography shows there is no dispute that child pornography is a scourge that isuniversally abhorred by civilized society. However, private use materials are legal.

That means that some of the negative characteristicsof non-private use child pornography are not exactly duplicated in private use materials. For example, in R. v. Sharpe at para. 158,McLachlin C.J.C. stated:

The harm of child pornography is inherent because degrading, dehumanizing, and objectifying depictions of children, by their very existence, undermine the Charter rights of children and other members of society. Child pornography eroticises the inferior social, economic, and sexual status of children. It preys on preexisting inequalities. [ 92 ] However, these characteristics are not an intrinsic component of private use materials. As the Court in R. v.

Sharpe concluded, private use material that in the possession and control of their ‘owners’ is a legitimate form of self-exploration and celebration of a young person’s personality, expression, and sexuality. [ 93 ] Similarly, Chief Justice McLachlin at para. 88 concluded that “... exposure to child pornography may make the abnormal seem normal and the immoral seem acceptable ...”. That enhances the risk of active paedophilic behaviour (paras. 87-89). However, private use materials are not intrinsically “abnormal” or “immoral”. Indeed, they are the opposite.

Private use materials are a protected expression under the Charter of Rights and Freedoms , s. 2(

b) guarantee of free expression: R. v. Sharpe , at paras. 116, 128 . [ 94 ] I believe an important principle on which illegal possession or distribution of private use materials should be evaluated is the degree to which the unauthorized possession intrudes into the privacy of a young person participant. In the trial judgment I stressed that private use materials and their possession and use are legal as long as the private use materials remain in the possession and control of their ‘owners’.

Injury to the ‘owners’ of private use materials therefore flows from the negative effects on those young persons when their intimate legal activities are disclosed and they lose their right to express themselves and explore their sexuality in private . b. Age of the Participants [ 95 ] The case law provides a wealth of commentary on the deleterious effects of child pornography on children. Some forms of child pornography are viewed as more serious, for example it is an aggravating factor that child pornography involves younger children rather than adolescents: R. v. Hewlett , at para. 24 .

The rationale for that approach is clear; production of child pornography that involves younger children is associated with more serious behavioural and emotional injuries. The potential harm to the exploited children depicted is that much greater. [ 96 ] By definition, all private user materials will depict participants who fall to the ‘adolescent’ end of the seriousness spectrum. The participants in private use materials necessarily are persons who can legally engage in or document their nudity and sexual activities: R. v.

Sharpe , at para. 128 . [ 97 ] I therefore think that the age of the children involved in private use materials is less relevant as a sentencing factor. I do not think there is a significant difference in the negative implications to a young person aged 14 and one aged 17. Both these young persons have had their legal private activities intruded upon, and have an equal right to keep those activities private. Although not specifically expressed in the context of private use materials, I conclude that Justice Topolniski came to the same conclusion in R. v.

Schultz , at para. 64 . [ 98 ] The age of the complainants S.C. and J.W., 15 and 16 years respectively, is therefore relatively immaterial for my sentencing analysis. c. Nature of the Private Use Materials [ 99 ] The Criminal Code , as interpreted in R. v. Sharpe , makes clear that an unauthorized person has no right to possess private use materials. However, not all private use materials represent an equal intrusion into the private life of its ‘owners’.

While not to trivialize any of that kind of intrusion, I conclude that certain kinds of private use material extend further into a young person’s sexuality and personal and private domains. [ 100 ] For example, a nude photograph is a less serious intrusion than a visual recording of sexual activities. Neither should be viewed or possessed without consent, but illegal possession of the latter warrants greater sanction.

[ 101 ] Here, the Offender had possession of recordings of S.C. and J.W. engaged in sexual acts with their then male partners. I believe any person, adult or teenager, would consider that kind of disclosure extremely intrusive. When in the wrong hands the kinds of materials obtained by the Offender are amongst the most private and potentially harmful, and thus that kind of intrusion falls to the very serious end of the spectrum and warrants a longer sentence. d. Kinds of Acts Depicted [ 102 ] Some child pornography sentencing decisions comment on the nature or type of acts depicted in the child pornography.

Certain acts are identified as requiring stronger denunciation and deterrence. For example, in R. v. Schneider , 2008 ONCJ 250 at para. 37 , 77 W.C.B. (2d) 573, R. v. Cuttell , 2010 ONCJ 139 at para. 36 , R. v. Kwok , at para. 48 , the sentencing judges note that children were recorded while being restrained (bondage) or in fetishist contexts. Similarly, in certain instances a scheme for a hierarchy of sex acts with increasing physical intrusion has been adapted from UK common-law ( R. v. Oliver , [2002] E.W.J. No. 5441) and applied in Canada ( R. v. Missions , 2005 NSCA 82 at para. 14 , 232 N.S.R. (2d) 329).

Possession of this kind of material is a basis for stronger sanction due to the probability of increased psychological and emotional injury to the child in question. Similarly, possession of child pornography that depicts physical coercion or an adult physically forcing themselves on a child is a basis for a longer sentence; sadism or bestiality attracts yet stronger sanction: R. v. Hammond , at paras. 3, 11 ; R. v. Missions , at para. 14 ; R. v. V.H. , 2008 YKTC 21 at para. 17 , 77 W.C.B. (2d) 332. [ 103 ] I think the approach to private use materials should be different.

Since a recording of sexual activities that involves coercion or a lack of consent would fall outside the private use exception, there is no need to consider those kinds of materials any further. Presumably the recording of consensual bestiality discussed in R.L. c. R. , 2009 QCCA 546 , [2009] R.J.Q. 669 would also fall outside a private use materials analysis as a consequence of Criminal Code , s. 160(1). What is important is to consider the relevance of certain kinds of activities with one or more consenting young persons.

Previously I have reasoned that unauthorized possession of recordings of explicit sexual activities is more serious than photographs of simple nudity on the basis that the latter is less of an intrusion into a person’s private activities. [ 104 ] However, I do not think more serious sanction should result where a private use material depicts, for example, fetish activities or bondage, or other particular sex acts. The different treatment flows from the fact that activities recorded in private use materials are voluntary; the underage participant decided to engage in that activity.

An attempt to weigh the kinds of acts illustrated or recorded simply fails to recognize a simple fact; the young person had a right to have his or her sexual activity remain private, no matter what kind of act is involved. [ 105 ] The private use materials that depict S.C. and J.W., involved sexual activity between them and other persons. No further evaluation of the specific kinds of activity depicted is warranted during sentencing. e.

Involvement by the Offender in Defeating Private Possession and Control [ 106 ] In the trial decision I concluded that the circumstances under which private use materials come into the possession of another person can negate their legal private use character (trial judgment, at paras. 293-294).

I conclude that if the person in unauthorized possession of private use materials engaged in certain activities to obtain that material then that fact is aggravating: 1. fraud or deception, 2. coercion, threat, or extortion, or 3. in exchange for any form of consideration. [ 107 ] These are active processes the offender undertook to cause an unauthorized intrusion into the young person’s privacy, in contrast to where a person is a passive recipient of illegal material. As a part of society’s respect for young persons and their sexuality,

stronger sanction should exist where a person took positive steps to intrude into the young person’s private sexuality, and make private use materials public. [ 108 ] J.W. and C.V. testified that the Offender had actively extorted sex tapes from the couple while C.V. was living in the Offender’s home. I rejected that testimony, however if that had been the case then that would have been a serious aggravating factor.

It could also be the basis for a conviction on making child pornography ( Criminal Code , s. 163.1(2)). [ 109 ] As was previously explained, I conclude that the Offender probably in some manner provided some form of consideration to M.A. or/and C.V. to provide him with recordings of their sexual activities with their underage partners. I consider that an active role in compromising the privacy of the young persons is a serious aggravating factor. f.

Involvement of the Offender in Creating Private Use Materials [ 110 ] The Crown has argued that another aspect of the Offender’s interaction with the couples depicted in the child pornography tapes is an aggravating factor. There was unchallenged evidence that the Offender provided the video equipment used to create the S.C./M.A. recordings. Although I essentially rejected the evidence of J.W. and C.V.

I still am satisfied on a balance of probabilities that the Offender was the person who supplied them with the video camera or cameras used to record the couple’s sexual activities, and also C.V.’s solo masturbation recording (trial judgment, at paras. 100-102). [ 111 ] The Offender also copied the S.C./M.A. recording so that it was in a different format that the participants could view. [ 112 ] I see these activities as irrelevant. The Offender participated in and/or facilitated the production of legal materials .

His blameworthy conduct was intrusion into the privacy of the young persons recorded and their loss of control of the private use materials. Supplying technical support or equipment does neither. [ 113 ] If the Offender had supplied the video equipment as part of an agreement by either M.A. or C.V. that the Offender would receive the private use materials, then that could be an aggravating factor.

While I have some suspicions on that point, I also have no evidence that the creation of the video recordings was always part of a plan to supply the Offender with recordings of under-aged persons engaged in sexual activities. I certainly do not see it as implausible that either M.A. or C.V. would have, opportunistically, decided to sell the Offender recordings of their partners after the recordings had been created. Either of these males or the Offender may plausibly have initiated that exchange. g.

Relationship to the Private Use Participant [ 114 ] Certain child pornography cases indicate that it is an aggravating factor where the offender has a close personal relationship to the child depicted in the pornographic materials. Sadly, this scenario occurs most often where a family member or relative is involved in creating sexually explicit materials involving a child in their care, or directly abuses a child sexually, for example: R. v. P.J.B. ; R. v. T.L.B. , 2007 ABCA 61 , 409 A.R. 40, leave refused [2007] S.C.C.A. No. 136; R. v.

N.K.P. , 2010 ABPC 341 . [ 115 ] It seems to me this factor might be relevant to illegal possession of private use materials, but more likely will be a consideration when private use materials are distributed without authorization. This case provides an illustration of that latter scenario.

When M.A. gave the Offender the S.C./M.A. recording he breached the privacy of a person close to himself, his girlfriend, and that breach by M.A. of her confidence and trust is worthy of additional sanction. [ 116 ] However, the Crown argues that the Offender was in a special position, and trusted by the persons in the child pornography recordings. There is evidence that the Offender used his employment as a way to meet and contact the persons who would ultimately be the ‘owners’ of the private use materials.

[ 117 ] The Offender was a guidance counsellor, a youth counsellor, and a social worker in Athabasca. His employment placed the Offender in a position where he had the opportunity to meet young individuals such as M.A., S.C., L.C., S.H. and C.V. Although the offences for which this Court has found the Offender guilty are not directly linked to those positions, the Offender nevertheless indirectly used his employment to further his illegal activities. His employment was how he met many of his future victims and collaborators: 1.

The Offender and M.A. first met while M.A. was performing community service hours as part of his sentence for a minor charge; The Offender was employed at the Native Friendship Centre as a Native youth coordinator. The Offender became M.A.’s supervisor. M.A. continued his affiliation with the Offender when the Offender became a youth counsellor at the school that M.A. attended, Edwin Parr Composite High School. By that point M.A. was dating S.C. 2. S.C. became acquainted with the Offender while he was a guidance counsellor at Edwin Parr Composite High School.

The Offender interacted with S.C. in a professional capacity when she was 15. 3. C.V. became acquainted with the Offender by way of a mutual friend, L.M., while C.V. lived in the Maritimes. The Offender was the caretaker for L.M. when L.M. was 15 years old. [ 118 ] The fact he met these persons through his employment is a mildly aggravating factor. I do not have evidence that the Offender specifically planned to use his professional activities as a mechanism to access children, teens, troubled teens, and teens that needed help, and then obtain sexually explicit materials that involved these individuals.

I do not have the evidence to fully appreciate how the Offender interacted with the two males, M.A. and C.V. They testified on that point, but I have concluded both were liars who framed their interactions with the Offender so as to minimize their own potential blameworthiness. [ 119 ] As a consequence I am uncertain that the relationship between the Offender and the various recorded persons is all that significant.

He was J.W.’s and C.V.’s landlord, and if I believed their story that the Offender had extorted the recordings of their sexual activities in exchange for their staying together at his residence, then that would be a powerful aggravating fact. However, I entirely rejected that explanation for the J.W./C.V. recordings, and am left with the conclusion that C.V. probably gave the tapes to the Offender at some point for some form of consideration from the Offender and without his partner’s knowledge.

That is a fairly distant relationship. [ 120 ] As for S.C. and M.A., they appear to have been in the Offender’s circle of friends or social associates. M.A. seems to have been closer to the Offender than S.C., as M.A. described hanging around and drinking on a social basis at the Offender’s residence. S.C. only described joining her then boyfriend for a couple dinners. Again, this kind of relationship between S.C. and the Offender does not indicate that the Offender’s possession of the S.C./M.A. recording was any special kind of betrayal or breach of a relationship. They were social associates. h.

Knowledge of the Age of the Private Material Participant [ 121 ] Private use materials can involve a complication not always encountered with child pornography. Child participants in private use materials will be aged 14-17 years, and it may not be obvious to a person in possession of private use material that a person depicted in that material is, for example, 17 years of age rather than 18. I believe I may take judicial notice that assessing the age of an adolescent person or young adult is not always an obvious task.

That certainly has been the conclusion of other judges while determining whether materials are child pornography as defined in Criminal Code , s. 163.1(1), see for example R. v. Loring , 2001 BCSC 200 at paras. 14-15 , 54 W.C.B. (2d) 617; R. v. Garbett , 2008 ONCJ 97 , at paras. 84-93 , 56 C.R. (6th) 91. [ 122 ] Those analyses relate to guilt. Presumably where an accused thought a person depicted was over the age of 18 then that would involve the mens rea of the offence.

I note that a statutory obligation to investigate the age of a person depicted in a sexually explicit material only exists for the offence of making child pornography: Criminal Code , ss. 163.1(2), 163.1(5) . [ 123 ] There nevertheless may be instances where a person is convicted of possession of child pornography and where the offender can plausibly say they were uncertain of the age of the underage person depicted in a private use material.

For example, a collection of materials may include both private use materials of an underage individual, and subsequent sexually explicit materials made when that same person was over 18. In a situation such as that mistaken belief might be a mitigating factor.

[ 124 ] Here, the Offender clearly was aware of the age of S.C. and J.W.; he knew that any recordings of their sexual activities involved persons under 18. However, I cannot see how his knowledge of their actual ages is an aggravating factor. Instead, I see that as neutral - the Offender knew of an element of the offence. v. Aggravating and Mitigating Factors Specific to this Case [ 125 ] The Crown and Defence have suggested a number of other potentially relevant factors which relate more specifically to the facts of this case. a.

Multiple Copies and Compilation Recordings [ 126 ] The Offender was found in possession of multiple copies of the private use materials (trial judgment, at paras. 117-119). In certain cases recorded sequences were ‘assembled’ into other recordings (trial judgment, at paras. 100-105). The Crown has suggested these acts, copying and assembling, are an aggravating factor.

There has been a suggestion these steps may have been to prepare the private use materials for distribution in some manner. [ 127 ] First, I am uncertain that ‘assembling’ or ‘collecting’ the recordings is an aggravating factor, and if it is, then it is of very limited weight. The trial judgment discusses how organizing or copying child pornography does not ‘make’ child pornography (paras. 217-246). I fail to see how multiple copies of a single prohibited private use recording, all in the possession of a single offender, is any greater intrusion on the young person’s privacy and sexual self-expression.

All the instances of the same recording would be viewed or viewable by the same illegitimate user. [ 128 ] As for the ‘assembling’, I see again little in that act that changes the intrusion into the privacy of the young persons recorded. Arguably assembling a number of pornographic sequences onto a single videotape or DVD could indicate a plan to market or distribute the pornographic material, but I have no evidence that is so with the Offender. All the ‘compilations’ exist in a single copy. None were marked in a manner that suggested these recordings were intended for sale.

None of the assembling can be said to improve the commercial appeal of the grouped recordings. In that sense the Offender’s efforts were distinct from those in R. v. Kostas where that offender had produced “professional type DVD’s of child pornography entitled ‘Adam’s Pedo Collection’.” (para. 12). [ 129 ] The items were all recovered from the Offender’s bedroom; one compilation recording was found in his videocassette player.

All these facts suggest the child pornography were home videotapes for a single person’s consumption. [ 130 ] There was evidence from the three male Crown lay witnesses that the Offender and these individuals had some scheme to make materials to assist the young males entering into the pornography industry. The C.V. masturbation tape was the best physical evidence of that plan, however that witness instead made the ridiculous claim that recording had been made without his knowledge, even though the recording shows C.V. reaching out to the camera’s controls.

At trial (paras. 129-139) I concluded there simply was no adequate basis on which to conclude any of the recordings were made with the intention they would be used as ‘demo’ tapes for new porn actors. If I did reach that conclusion then that would have been an extremely aggravating fact. [ 131 ] A better basis to infer that there was a plan to distribute the private use materials would be if these materials had been converted from videotape to an electronic, computer-playable format that could be easily transmitted via the Internet.

I received no evidence that the Offender ever ‘converted’ any recording into a computer-playable format. All he had was a collection of hand-labelled tapes, in many cases crudely taped over previously recorded television programs and home movies. b. Deceit in Private Material Retention [ 132 ] The Crown also argues that the Offender lied that he had destroyed the S.C./M.A. and J.W./C.V. recordings. Frankly, I have

little evidence to support that claim. I have completely rejected the testimony of J.W. and C.V. on the origin of the recordings of their sexual activities, and how the Offender came into possession of those recordings. That also means I rejected their testimony that the Offender told the couple he had destroyed their recordings. As for the S.C. /M.A. recording, M.A. testified that the Offender said he had lost the recording given to him. I concluded at trial that M.A.’s testimony was not reliable, and M.A. simply made up that part of his story - it was absurd. In

summary, I have no reliable testimony that the Offender ever told anyone he destroyed either the S.C./M.A. or J.W./C.V. recordings. c. Retention of the Materials [ 133 ] The Offender retained these S.C./M.A. and J.W./C.V. recordings for a lengthy period: three years for the former, and two years for the latter. The Crown argues the ongoing possession of the private use materials not for days, weeks or months but years is an aggravating factor that warrants a lengthier sentence.

I do not believe there was any case authority provided where another Court explicitly reached the conclusion that a prolonged duration of illegal possession of child pornography is an aggravating factor. [ 134 ] There is a rational link between the severity of a criminal sanction and the duration of illegal possession of private use materials. While illegal possession continues so does intrusion into the privacy of the ‘owners’ of the private use materials. During that time there is a risk of further distribution or exposure: R. v. B.S.M. , at para. 33.

However, I am less certain that prolonged possession is an aggravating factor. If an offender was to come into unauthorized possession of private use materials and then voluntarily destroyed those materials, thus ending the intrusion into the young person’s privacy and sexuality, then I think that voluntary disposal would be a mitigating circumstance.

The offender recognized the improper nature of his or her action, and took steps to respect the privacy of the private use material’s ‘owners’. [ 135 ] The Offender did not take that kind of step, but if prolonged possession of private use materials is an aggravating factor, then it is of limited relevance. I therefore will not vary the Offender’s sentence to account for his possessing the S.C./M.A. and J.W./C.V. recordings for several years. d. No Guilty Plea [ 136 ] A guilty plea by an offender is a mitigating factor that indicates that the offender acknowledges and accepts their guilt.

A guilty plea also conserves judicial and prosecutorial resources. [ 137 ] The Offender did not plead guilty, as is his right. He, like all Canadians, has the right to make a fu

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