R. v. KDH, 2012 ABQB 471

Court of Queen ’ s Bench of Alberta Citation: R. v. KDH, 2012 ABQB 471 Date: 20120720 Docket: 110455920Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - K.D.H. Accused Restriction on Publication: Identification ban – See the Criminal Code,

section 486.4 . By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any manner.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. NOTE: This judgment is intended to comply with the restriction so that it may be published. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Don J. Manderscheid _______________________________________________________

I. Introduction................................................................................................................ Page: 4 II. Proposed Sentences..................................................................................................... Page: 7 A. The Crown...................................................................................................... Page: 7 B. The Offender................................................................................................. Page: 12 III.

Relevant Law............................................................................................................ Page: 13 A. Criminal Code Sentence Ranges................................................................... Page: 13 B. Principles of Sentencing................................................................................ Page: 14 C. Approach to Sentencing................................................................................ Page: 16 D. Inflation via Minimum Sentence................................................................... Page: 17 E.

Sentencing for Multiple Offences.................................................................. Page: 18 1. R. v. Kienapple Principle............................................................... Pag e: 18 2. Concurrent vs. Consecutive Sentences.............................................. Page: 19 a. R. v. B.S.M. , 2011 ABCA 105 , 502 A.R. 253.................... Page: 21 b. R. v. Keough , 2012 ABCA 14 , 519 A.R. 236.................... Page: 23 c. R. v. Lemmon , 2012 ABCA 103 ........................................ Page: 24 d. R. v. Ruth , 2012 ABCA 168 ...............................................

Page: 26 e. Synthesis of an Appropriate Approach.................................. Page: 27 3. The Totality Principle........................................................................ Page: 30 IV. Global Sentencing Factors......................................................................................... Page: 30 A. Statutory Factors........................................................................................... Page: 30 B. Common-Law Factors................................................................................... Page: 31 1.

Relevant General Factors for Offences that Involve Children............ Page: 31 2. Progression and Escalation of the Offence Pattern............................ Page: 32 3. Guilty Plea........................................................................................ Page: 34 4. Prior Criminal History....................................................................... Page: 36 5. Character of the Offender.................................................................. Page: 37 V. Offences and Sentence Criteria................................................................................. Page: 38 A.

Sexual Assault and Sexual Interference......................................................... Page: 38 1. Sexual Assault: Criminal Code, s. 271 .............................................. Page: 39 2. Sexual Interference: Criminal Code, s. 151 ....................................... Page: 44 B. Incest: Criminal Code , s. 155........................................................................ Page: 45 C. Administering a Stupefying Drug to Assist Commission of an Indictable Offence Page: 48 D. Bestiality.......................................................................................................

Page: 51 E. Sexual Assault with a Weapon...................................................................... Page: 52

F. Unlawful Confinement.................................................................................. Page: 53 G. Counselling Sexual Touching....................................................................... Page: 54 H. Child Pornography Offences......................................................................... Page: 54 1. Making Child Pornography: Criminal Code, s. 163.1(2) ................... Page: 57 2. Possession of Child Pornography: Criminal Code, s. 163.1(4) .......... Page: 59 3. Distribution of Child Pornography: Criminal Code, s. 163.1(3) ........ Page: 61 VI.

Analysis.................................................................................................................... Page: 63 A. Offence Groups and Discrete Offences......................................................... Page: 63 1. KH1/KH Sibling-Sibling Incest......................................................... Page: 63 2. MA/AH Sexual Interference.............................................................. Page: 64 B. KH1/KH Groups........................................................................................... Page: 65 1.

KH1 Offence Group.......................................................................... Page: 65 a. KH1’s Abuse History............................................................ Page: 66 b. Crown and Offender Submissions......................................... Page: 67 c. The Dominant Offence: Criminal Code , s. 155(2) - Incest.... Page: 67 d. Concurrent vs. Consecutive Sentences.................................. Page: 67 e. Sentence for the KH1 Offence Group................................... Page: 68 2. KH Offence Group............................................................................

Page: 70 a. KH Offence History.............................................................. Page: 71 b. Crown and Offender Submissions......................................... Page: 71 c. The Dominant Offence: Criminal Code , s. 151 - Sexual Interference Page: 72 d. Concurrent vs. Consecutive Sentences.................................. Page: 72 e. Sentence for the KH Offence Group..................................... Page: 72 3. KH/KH1 Incest, Criminal Code, s. 155 ............................................. Page: 73 a. The Sibling-Sibling Incest..................................................... Page: 73 b.

Crown and Offender Submissions......................................... Page: 74 c. Analogous Caselaw............................................................... Page: 74 d. Sentence for the Sibling-Sibling Incest.................................. Page: 74 C. JA Offence Group......................................................................................... Page: 75 a. JA Offence History............................................................... Page: 75 b. Crown and Offender Submissions......................................... Page: 75 c.

The Dominant Offence: Criminal Code , s. 151 - Sexual Interference Page: 76 d. Concurrent vs. Consecutive Sentences.................................. Page: 76 e. Sentence for the JA Offence Group....................................... Page: 76 D. TM Offence Group........................................................................................ Page: 77 a. TM Offence History.............................................................. Page: 77 b. Crown and Offender Submissions......................................... Page: 78

c. The Dominant Offence: Criminal Code , s. 271 - Sexual Assault Page: 78 d. Concurrent vs. Consecutive Sentences.................................. Page: 79 e. Sentence for the TM Offence Group..................................... Page: 79 E. MA Offences................................................................................................. Page: 81 1. MA Offence History.......................................................................... Page: 82 2. MA General Offence Group.............................................................. Page: 82 a.

Crown and Offender Submissions......................................... Page: 82 b. The Dominant Offence: Criminal Code - s. 151 Sexual Interference Page: 83 c. Concurrent vs. Consecutive Sentences.................................. Page: 84 d. Sentence for the MA Offence Group..................................... Page: 84 3. MA/AH Offence Group..................................................................... Page: 86 a. The Dominant Offence: Criminal Code , s. 151 - Sexual Assault Page: 86 b. Concurrent vs. Consecutive Sentences.................................. Page: 86 c.

Sentence for the MA/AH Offence Group.............................. Page: 86 F. Child Pornography Offences......................................................................... Page: 87 1. Making Child Pornography............................................................... Page: 87 a. Count 4 - the Written Materials............................................. Page: 88 b. Count 34 - the MA Materials................................................. Page: 89 c. Concurrent vs. Consecutive Sentences.................................. Page: 89 2.

Possession of Child Pornography...................................................... Page: 90 3. Distribution of Child Pornography.................................................... Page: 91 4. Concurrent or Consecutive Child Pornography Counts..................... Page: 93 G. Sum Sentence and Tabulation....................................................................... Page: 93 H. Totality Principle........................................................................................... Page: 95 I. Ancillary Orders..........................................................................................

Page: 105 VII. Conclusion.............................................................................................................. Page: 107 Agreed Statement of Facts................................................................................................... Page: 108

PART I:

DEFINITIONS........................................................................................... Page: 113

PART II: FACTS..................................................................................................... Page: 113 JA............................................................................................................... Page: 114 KH1............................................................................................................ Page: 116 KH.............................................................................................................. Page: 120 MA: Leduc; Edmonton; Egremont..............................................................

Page: 122 TM.............................................................................................................. Page: 125 DD(M)........................................................................................................ Page: 126 RA.............................................................................................................. Page: 127

Section 163.1 Offences............................................................................... Page: 131 I. Introduction [ 1 ] On June 27 th , 2012, I rendered an oral synopsis of my sentencing decision with respect to the case at bar. At that time, upon receiving the agreement of the Crown and Defence, I advised that formal sentencing reasons in regards to this matter would be filed no later than July 20, 2012. What follows are the formal sentencing reasons. [ 2 ] Criminal Code , R.S.C. 1985, c. C-46, s. 718.2(

b) requires that during sentencing a judge shall apply the rule that “ ... a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances ... ” . That instruction could simply be restated that an ordinary offender who engages in ordinary misconduct should receive an ordinary sentence. [ 3 ] There is a logical corollary to that restatement; the extraordinary offender should receive an extraordinary sentence. The person who is the subject of this sentencing decision, KDH, is an extraordinary offender.

His misconduct is of a scale and character that is all but unparalleled among the reported sentencing decisions that relate to Canadian sex offenders. That is, of course, only one factor relevant to his sentence, however it is a mandatory consideration on sentencing, and a necessary reference in any assessment of the sanction that should flow from KDH ’ s misconduct. [ 4 ] KDH was initially charged with a total of 40 counts of criminal misconduct which are listed in the appendix to this decision. He has pled guilty to 27 of those charges: indictment counts 2-4, 6, 8, 11-17, 19-23, 25-26, 28-29, 31-36, 38.

Count five was the subject of a trial where KDH was found guilty of the sexual assault of TM; this decision is reported as R. v. KDH , 2012 ABQB 318 [the “ TM Trial Decision ” ]. [ 5 ] At the beginning of sentencing, the Crown and Offender jointly proposed and I agreed that several charges should be amended. Counts 28 and 29 were amended to extend the relevant time period, while the guilty pleas for counts 37 and 38 were withdrawn.

The revised counts now read as follows (the underlined passages indicate the amended portions): Count 28: Between the 2nd day of March, 2009, and the 1st day of May, 2010 , both dates inclusive, at or near Edmonton, Alberta, did, for a sexual purpose, unlawfully touch, directly or indirectly, with a part of the body or with an object, a part of the body of MA, a person under the age of sixteen years, contrary to

section 151 of the Criminal Code of Canada . Count 29: Between the 2nd day of March, 2009, and the 1st day of May, 2010 , both dates inclusive, at or near Edmonton, Alberta, did for a sexual purpose, unlawfully invite, counsel or incite MA, a person under the age of sixteen years to touch, directly or indirectly, with a part of the body or with an object, the body of RA, contrary to

section 152 of the Criminal Code of Canada . The net effect is that counts 37 and 38 are ‘ merged ’ into counts 28 and 29. [ 6 ] Similarly, count 20 was amended to read: Count 20: Between the 28th day of September, 2007, and the 27th day of September 2009 , both dates inclusive, at or near Edmonton, Alberta, did, for a sexual purpose, unlawfully invite, counsel or incite KH, a person under the age of consent to touch, directly or indirectly, with a part of the body or with an object, the body of [KDH], and/or SB, contrary to

section 152 of the Criminal Code of Canada .

This amendment effectively ‘ merges ’ counts 20 and 21 into count 20. KDH was re-arraigned and pled guilty to the amended charges. The Crown has informed me that it intends to stay the remaining 13 charges. [ 7 ] At the beginning of this proceeding the Crown and Defence filed an agreed statement of facts, which is reproduced as an appendix to this decision. That agreed statement of facts discloses a remarkable history of sexual misconduct.

In a period of over nine years KDH sexually assaulted or interfered with four child victims, including his two biological children, and, sexually assaulted TM, the adult daughter of his common-law partner. KDH counselled incestuous activity between and among his victims and himself. He possessed, created, and distributed child pornography. [ 8 ] KDH ’ s first victims were his own children, KH1 and KH, at ages 6 and 10. KDH engaged in escalating sexual contact with his daughter KH1, starting with shared showers, then sexual touching, oral sex, and intercourse.

KH, KDH ’ s son, experienced less significant contact with KDH, however, KDH directed KH and KH1 to have sex with one another, which they did. KDH generally tried to involve his children in sexual activities with his adult partners and their children. KDH told his children these activities were educational and loving. [ 9 ] JA was the next child to be involved. She was the daughter of a woman who was in a common-law relationship with KDH between 2003 and 2008. JA reports touching by KDH of her genitals and breasts.

KDH suggested to her mother that JA learn about sex from KDH. [ 10 ] In 2009 KDH was joined by RA, who would ultimately be his fianc é , who participated in many of these activities. RA has also been charged with a number of sexual offences that relate to those against KDH. RA ’ s trial is scheduled for spring of 2013. RA had three daughters. KDH admits he and RA engaged in various sexual offences with MA, RA ’ s then 13 year old daughter. That includes bestiality and providing MA to a friend, for sex. KDH and RA also engaged in sexual activities with TM, RA ’ s then adult daughter.

I concluded in the TM Trial Decision that at least some of those sexual activities were non-consensual. [ 11 ] Sentencing in this case is a complex task. There are many offences. The misconduct extends over nearly a decade. Some convictions flow from the same or related events and activities.

In certain instances more than one complainant is involved in an offence; for example there are several convictions that KDH directed or counselled two of the complainants to engage in unlawful sexual activity with one another, for example counts 8, 16, and 22. [ 12 ] My general approach is to address sentencing on a complainant by complainant basis. This parallels the sentence schemes proposed by the Crown and the Defence. The ‘ overlap ’ between complainants for certain offences means a degree of redundancy is inevitable.

I will engage in a more detailed review of the relevant sentencing factors when I evaluate the appropriate sentences for each complainant. Some aggravating and mitigating factors are offence-specific, while others are global.

I will first review the global factors, and analyse offence- and complainant-specific factors along with the corresponding offences. [ 13 ] The overall sentence will be determined in three steps: 1. assigning individual sentences per offence, 2. addressing whether certain offences should be served consecutively or concurrently, and 3. determination of what global sentence is appropriate, given the sum total sentence duration identified in steps one and two. [ 14 ] The resulting global sentence will then be reduced for KDH ’ s pre-trial detention: Criminal Code , ss. 719(3)- 719(3.2) .

The Crown and Offender submit that KDH should be credited for 734 days of his detention with a 1.5 ‘ multiplier ’ as a consequence of his circumstances while in the Edmonton Remand Centre. KDH was assaulted, and subsequently spent the majority of his pre-trial detention in administrative segregation. I accept that submission. On that basis the Crown and Offender concluded that his period of incarceration ought to be reduced by 1,137 days as time served for those days, which I also accept.

[ 15 ] I note that subsequent to my oral synopsis but prior to the issue of these formal reasons, the Alberta Court of Appeal released R. v. Serdyuk , 2012 ABCA 205 , a decision that interprets the Truth in Sentencing Act , S.C. 2009, c. 29 in a manner that ap+pears different from the joint submission by Crown and the Offender. II. Proposed Sentences [ 16 ] The Crown and Defence take different positions as to what is the appropriate sentence for KDH and the methodology to derive that result.

At the sentencing hearing I identified to counsel three recent Alberta Court of Appeal decisions that may be relevant in relation to sentencing: R. v. B.S.M. , 2011 ABCA 105 , 502 A.R. 253 ; R. v. Keough , 2012 ABCA 14 , 519 A.R. 236 ; R. v. Lemmon , 2012 ABCA 103 . A. The Crown [ 17 ] Due to the number of offences, it is helpful to summarize the Crown ’ s sentence proposal in a table format; the counts are grouped by complainant, rather than count number. The Crown suggests the following sentences: Count # CCC

Section Number Offence Description Complainant(

s) Sentences KH KH1 JA MA TM Stat.Max. Stat.Min. Crown suggest Crown suggest concur- rent 2 151 sexual inference X 10 year 45 day 5 year 5 year 3 152 counsel sexual touching X 10 year 45 day 2 year 11 151 sexual interference X 10 year 45 day 5 year 5 year 12 152 counsel sexual touching X 10 year 45 day concrnt 13 271 sexual assault X 10 year none - - 14 151 sexual interference X 10 year 45 day 5 year 15 155(2) incest X 14 year none 5 year 28 151 sexual interference X 10 year 45 day 7-8 year 7-8 year

5 year 17 152 counsel sexual touching X 10 year 45 day 2 year 16 155(2) incest X X 14 year none 5 year 19 151 sexual interference X 10 year 45 day - 20 152 counsel sexual touching X 10 year 45 day 1 year either alone or concur- rent to 14-19 22 152 counsel sexual touching X X 10 year 45 day 1 year 1 year 25 151 sexual interference X 10 year 45 day 2 year 2 year 26 246(

b) stupefying drug to offend X life none 1 year 1 year Count # CCC

Section Number Offence Description Complainant(

s) Sentences KH KH1 JA MA TM Stat.Max. Stat.Min. Crown suggest Crown suggest concur- rent 29 152 counsel sexual touching X 10 year 45 day concrnt 33 160(1) bestiality X 10 year none 1 year 31 151 sexual interference X 10 year 45 day 5 year 5 year 32 152 counsel sexual touching X 10 year 45 day - 35 272(2)(

b) sexual assault with a weapon X 14 year none 2 year 2 year 8 464(

a) counsel sexual interference X X X 10 year 45 day 1 year 4 year 5 271 sexual assault X 10 year none 4 year 28 151 sexual interference X 10 year 45 day 7-8 year 7-8 year

6 279(2) unlawful confinement X 10 year none 6 month 6 month 4 163.1(2) make child pornography 10 year 1 year 1 year 1 year 23 163.1(3) distribute child porn 10 year 1 year 2 year 2 year 34 163.1(2) make child pornography X 10 year 1 year 18 month 18 month 36 163.1(4) possess child pornography 5 year 45 day 2 year 2 year 28 151 sexual interference X 10 year 45 day 7-8 year 7-8 year Note - a dash in the “ Crown suggest ” (Crown suggested sentence) or “ Crown suggest concurr ” (Crown suggested concurrent sentences groups) columns indicates that the Crown did not make any specific recommendation.

A “ concrnt ” notation in the “ Crown Suggest ” column indicates that the Crown recommended a concurrent sentence to another count, but did not indicate a specific recommended sentence for that count. [ 18 ] During her breakdown of the appropriate sentence, Crown counsel indicated that the majority of the Criminal Code , s. 152 counselling of sexual touching offences have a corresponding sexual contact offence (ie. sexual assault, sexual interference, or incest) that involved the same persons and general chronological locus. She suggested those ‘ pairs ’ should be served concurrently.

Similarly, the Criminal Code , s. 155(2) incest offences flow from the same sexual activities as certain of the Criminal Code , s. 151 sexual interference offences, which again warrants the incest and sexual interference sentences being served concurrently. The suggested sentences generally aggregate misconduct which involved different persons into separate concurrent sentences.

The Crown submits that convictions for certain discrete offences, such as the bestiality ( Criminal Code , s. 160(1)), sexual assault with a weapon ( Criminal Code , s. 272(2)(b)) and unlawful confinement ( Criminal Code , s. 279(2)) convictions are also distinct and warrant a separate consecutive sentence due to their different component elements. [ 19 ] Though in her oral sentencing submissions the Crown indicated a mathematical total of “ 30-some years ” , my calculation seems to indicate a total of 44 to 46 years.

That said, the Crown acknowledges that such total sentence is excessive, and instead recommends an 18-20 year sentence. [ 20 ] The Crown noted that certain of those sentences were derived from starting points ( R. v. Arcand , 2010 ABCA 363 , 264 C.C.C. (3d) 134 ; R. v. B.S.M. , 2011 ABCA 105 , 502 A.R. 253 ). In addition, the Crown argued that any sentencing decisions that predate the applicable 2005 amendments to the Criminal Code understate the appropriate sanction for certain child pornography and child sex offences as a consequence of the ‘ inflationary ’ effect of amendments and new minimum sentences: R. v.

Rhyason , 2007 ABCA 119 at para. 17 , 404 A.R. 191 , affirmed 2007 SCC 39 , [2007] 3 S.C.R. 108 ; R. v. B.C.M. , 2008 BCCA 365 at paras. 31-32 , 36, 259 B.C.A.C. 222. The Crown cites R. v. Innes , 2008 ABCA 129 , 429 A.R. 164 for the principle that a global sentence should not be so reduced in response to the characteristics of an individual offender so as to leave the sentence out of alignment with the misconduct. [ 21 ] Certain aggravating factors and relevant caselaw were noted by the Crown during argument that related to specific offences.

I will review those comments during my more detailed review of the individual offences. That said, the Crown also identified a number of general aggravating factors and applicable principles of sentencing. The Crown argues that all offences with victims other than TM were an abuse of authority, a mandatory sentencing consideration: Criminal Code , s. 718(a) (2) .

In addition, deterrence and denunciation are the principle sentencing considerations for any offence that involves the exploitation of children, as occurred here: Criminal Code , s. 718.01. [ 22 ] Overall, misconduct related to four child complainants, KH, KH1, JA, and MA, and continued over a very lengthy period,

which are both aggravating factors. In the case of KH1 the abuse began at an early age. The kinds of sexual misconduct were many and varied. KDH never voluntarily abandoned his pattern of sexual abuse. The Crown argues that instead, he did whatever he wanted, and that as his interests evolved KDH attempted to involve new children and adults, sometimes with success, sometimes not. [ 23 ] In relation to the child pornography charges the principle focus of sentencing is deterrence and denunciation. The Crown emphasized the pernicious nature of child pornography as detailed in R. v.

Sharpe , 2001 SCC 2 , [2001] 1 S.C.R. 45 l ; that child pornography is linked to child exploitation, and used to groom sexual behaviour in children. In the Crown’s opinion the amendment to the child pornography provisions, especially those that introduced or increased minimum sentences and limited the scope of Criminal Code , s. 163.1(6) defences, indicates Parliament’s intention to apply stricter sanctions to persons who possess, access, distribute, or manufacture child pornography. [ 24 ] The Crown argues that beyond a guilty plea there is no mitigating conduct or factors in this case.

Any history of prior good character means little for persons who engage in child sex offences: R. v. B.S.M. , at para. 16 . KDH ’ s conduct was planned and organized; his misconduct escalated over time. KDH groomed his child victims, and exposed them to highly objectionable forms of pornography, including child pornography, fetish activities, incest, and bestiality.

KDH indicated to RA that he had herpes, and MA reports that no condoms were used when KDH and MA engaged in sexual activities. [ 25 ] The Crown acknowledged that the absence of a pre-sentence report [ “ PSR ” ] and forensic psychiatric evaluation is a neutral factor, but that the character of KDH that emerges from the facts of this case is highly negative. At trial, KDH ’ s distorted perspective on his activities remained; he described his interaction with MA as consensual, an example of his testimony contradicting the agreed statement of facts.

KDH refused to acknowledge his wrongful conduct during the offences, for instance when confronted by KH1 with nude photos of MA found on KDH ’ s cell phone, KDH was angry, and told KH1 that his interactions with MA were none of KH1 ’ s business. [ 26 ] In addition to the 18-20 year prison sentence, the Crown requests a number of ancillary orders: 1. a DNA production order ( Criminal Code , s. 498.051); 2. life-long registration in the National Sex Offender Registry; 3. forfeiture of seized items that were used for child pornography purposes, including computers ( Criminal Code , s. 164.2); 4. a 10 year firearms prohibition ( Criminal Code , s. 109); and 5. a life-long prohibition against attending certain public places ( Criminal Code , s. 161(1)(a)), employment or volunteering for a position of trust or authority over youth under the age of 16 ( Criminal Code , s. 161(1)(b)), and use of a computer to communicate with youth under the age of 16 ( Criminal Code , s. 161(1)(c)). [ 27 ] The Crown also seeks a Criminal Code , s. 743.21 order that KDH not communicate with his victims while in custody, though KH1 requested that KDH be permitted to communicate with her if she first initiates contact. [ 28 ] The Crown suggested a victim fine surcharge is potentially warranted in this instance, but took no position on whether one should be ordered.

B. The Offender [ 29 ] The Offender acknowledges that his misconduct is highly blameworthy, but that no matter how abhorrent his actions, his

sentence cannot be motivated by revenge, and must be proportionate and reasoned. In his opinion the 18-20 year global sentence proposed by the Crown is inappropriate; that is a sentence for misconduct such as second degree murder or manslaughter.

The totality principle requires KDH ’ s sentence be reduced to a level that is not “ crushing ” , as well as keeping with KDH ’ s record and prospects for future rehabilitation and reintegration. [ 30 ] The Offender stresses the importance of his guilty plea, and that any delay in the plea was a consequence of delay in obtaining legal aid counsel, and then for negotiation of the detailed and extensive agreed statement of facts on which those guilty pleas would depend. The Offender submits that his expressions of remorse are genuine.

On that basis, KDH ’ s guilty plea should be considered an early acknowledgement of his guilt, an attempt to simplify these proceedings, including waiver of a preliminary hearing, and a positive expression of KDH ’ s efforts to minimize the deleterious effects of trial on the complainants and victims: R. v. Pretty , 2009 ABPC 307 , affirmed 2010 ABCA 246 . [ 31 ] KDH says he will not re-offend.

His experience in detention has affected him deeply. [ 32 ] The Defence takes a very different approach to an appropriate sentence, and did not suggest sentences on a charge-by-charge basis, but instead proposed aggregate sentences for each complainant: KH: four years for comparatively minor (in this case) misconduct; KH1: seven years to account for the fact that she was his daughter, her vulnerability, and the duration and kind of sexual contact; MA: six years, due to her vulnerability and the bestiality component to the offence set; JA: four years, as a consequence of mitigating factors and the kind of sexual contact; and TM: three years, as she was an adult and only involved for a short period of time. [ 33 ] Counsel for the Offender argues these five aggregate sentences should be served concurrently .

An additional consecutive two to three year sentence is appropriate for the child pornography offences, for a global sentence of nine to ten years. This total sentence compares favourably with the misconduct reported in other cases, including R. v. Gilbert , 2011 NBPC 10 , 371 N.B.R. (2d) 341 ; R. v. Pretty ; R. v. Pike , 2008 ONCJ 484 , 79 W.C.B. (2d) 418 ; and R. v.

L.M. 2008 SCC 31 , [2008] 2 S.C.R. 163 . [ 34 ] No explanation was made on the methodology used to derive the aggregate sentences, or why the aggregate sentences per complainant were to be served concurrently, beyond reference to the totality principle, and certain comparator cases that may indicate what could be an appropriate global sentence. [ 35 ] The Offender took no position on the ancillary orders proposed by the Crown. III. Relevant Law A. Criminal Code Sentence Ranges

[36] The sentence ranges for the various offences committed by KDH are specified by the Criminal Code: 1. Criminal Code, s. 151: sexual interference - imprisonment between 45 days and 10 years; 2. Criminal Code, s. 152: invitation, counselling, or inciting a person under the age of 16 to sexual touching - imprisonment between45 days and 10 years; 3. Criminal Code, s. 155(2): incest - imprisonment for up to 14 years; 4 Criminal Code, s. 160(1): bestiality - imprisonment for up to 10 years; 5. Criminal Code, s. 163.1(2): making child pornography - imprisonment between 1 year and 10 years; 6.

Criminal Code, s. 163.1(3): transmission, making available, or distribution of child pornography, or possession for thosepurposes - imprisonment between 1 year and 10 years; 7. Criminal Code, s. 163.1(4): possession of child pornography - imprisonment between 45 days and five years; 8. Criminal Code, s. 246(b): administration of a stupefying or overpowering drug, matter, or thing for the purposes of committingan indictable offence - imprisonment for up to life; 9. Criminal Code, s. 271: sexual assault - imprisonment for up to 10 years; 10.

Criminal Code, s. 272(2)(b): commission of a sexual assault with use or the threat to use a weapon - imprisonment for up to 14years; 11. Criminal Code, s. 279(2): unlawful confinement - imprisonment for up to 10 years; and 12. Criminal Code, s. 464(a): counselling of an offence, sexual interference, that did not occur - imprisonment between 45 days and10 years. [37] KDH thus faces a potential sentence of one year to life. B. Principles of Sentencing [38] The basic objective of sentencing is well understood.

An offender should receive a sentence that reflects the gravity of themisconduct, and the moral blameworthiness of the offender: R. v. C.A.M., (SCC), [1996] 1 S.C.R. 500 at para. 40, 194N.R. 321. Justice Wilson expressed that concept in Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486 at 533, 24D.L.R. (4th) 536: It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a "fit" sentenceproportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender "deserved" the punishment

he received and feel a confidence in the fairness and rationality of the system. ... [Emphasis added.] [39] In R. v. C.A.M., at para. 40 the Court reiterates that criminal sanction is only appropriate with moral blame: ... the principle of proportionality in punishment is fundamentally connected to the general principle of criminal liability which holds thatthe criminal sanction may only be imposed on those actors who possess a morally culpable state of mind. [40] In R. v.

Martineau, (SCC), [1990] 2 S.C.R. 633 at 645, 58 C.C.C. (3d) 353, Lamer C.J.C. correlatedintention to moral culpability: “punishment must be proportionate to the moral blameworthiness of the offender”, and that “those causingharm intentionally [should] be punished more severely than those causing harm unintentionally”. [41] Criminal Code, ss. 718-718.2, as elaborated by the common law, provide the principles that guide sentencing in Canadatoday. The overall purpose of sentencing is to contribute to respect for the law, maintain a just, peaceful and safe society, and suppressfuture 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 thatwitnessed 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 acknowledgement of the harm that has flowed from his or hermisconduct. [42] For certain offences the Criminal Code emphasizes specific sentencing objectives.

Criminal Code, s. 718.01 instructs thatwhere an offence involves abuse of a person under 18 years of age, then the court “... shall give primary consideration to the objectivesof denunciation and deterrence of such conduct.” By definition, s. 718.01 is relevant to all offences that involve the four childcomplainants, and the child pornography offences. [43] 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] 1S.C.R. 941: Deterrence, as a principle of sentencing, refers to the imposition of a sanction for the purpose of discouraging the offender and othersfrom engaging in criminal conduct. ... [44] 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. [ 45 ] 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. [ 46 ] 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 [ 47 ] Our Court of Appeal in R. v.

Arcand 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.

Inflation via Minimum Sentence [ 48 ] On November 1, 2005, a number of Criminal Code child pornography and sexual offence provisions were amended to add a minimum sentence to those offences: • Criminal Code , s. 151: sexual interference - 45 day minimum sentence;

• Criminal Code, s. 152: counselling sexual touching - 45 day minimum sentence; • Criminal Code, s. 163.1(2): making child pornography - 1 year minimum sentence; • Criminal Code, s. 163.1(3): distribution of child pornography - 1 year minimum sentence; and • Criminal Code, s. 163.1(4): possession of child pornography - 45 day minimum sentence. These amendments did not affect the maximum sentences for these offences: 10, 10, 10, 10, and 5 years, respectively. [6] Criminal Code, s. 718.2(

b) instructs that ‘parity’ should exist between homologous offenders and offences: “... a sentenceshould be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”. [7] The Crown submits that the effect of this amendment is to ‘shift’ the appropriate sentence for any offender towards thefive or ten year end of the spectrum. When comparing sentences as required by s. 718.2(b), a pre-amendment sentence used as acomparator should be ‘inflated’. [8] I agree. A useful review of this specific issue is provided in R. v. B.C.M., at paras. 25-35.

Justice Neilson concluded atpara. 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, 2009 ABCA 415 at para. 8, 469 A.R. 317; R. v.

Rhyason, 2007 ABCA 119 at para. 17, 404 A.R. 191, affirmed2007 SCC 39, [2007] 3 S.C.R. 108. E. Sentencing for Multiple Offences [9] When an offender is found guilty of more than one offence a number of principles apply that affect the overall amount oftime that offender spends incarcerated. These principles generally balance the blameworthiness of the offender’s misconduct, withpotential overlap between offences, and the objective that a sentence is proportional to the offender’s misconduct. 1. R. v. Kienapple Principle [10] R. v.

Kienapple, (SCC), [1975] 1 S.C.R. 729, 44 D.L.R. (3d) 351 provides a general principle [the“Kienapple principle”] that where an offender is found guilty of two or more offences, and the convictions emerge from the samemisconduct, then a conditional stay should be ordered for the less serious charge: R v. Terlecki, 1983 ABCA 87, 42 A.R. 87, affirmed (SCC), [1985] 2 S.C.R. 483, 64 N.R. 233. [11] For example, an offender who was convicted of a breach of a public officer trust obligation by accepting a bribe (Criminal

Code, s. 122), and taking a secret commission (Criminal Code, s. 426(1)) would only be convicted and sentenced on the latter offence: R.v. Yellow Old Woman, 2003 ABCA 342, 339 A.R. 302, leave denied [2004] S.C.C.A. No. 26. The conclusion was that these “... twooffences have no significant, additional distinguishing elements ...” (para. 25). [12] Anticipating the analysis that follows, KDH has been found guilty of certain offences that share the same elements, such assexual assault (Criminal Code, s. 271) and incest (Criminal Code, s. 155), which warrant application of the Kienapple principle: R. v.Provo; R. v.

P.(D.W.), (SCC), [1989] 2 S.C.R. 3, 97 N.R. 209. 2. Concurrent vs. Consecutive Sentences [13] When an offender is found guilty of more than one offence, the sentencing judge has discretion under Criminal Code, s.718.3(4)(

c) as to whether the sentences are served one after the other (consecutively), or at the same time (concurrently). [14] The chief commentary by the Supreme Court of Canada on the issue of concurrent vs. consecutive sentences does not appearto provide a system for when two or more sentences are properly concurrent or consecutive. The majority in R. v. McDonnell; R. v. M.(T.E.), (SCC), [1997] 1 S.C.R. 948, 145 D.L.R. (4th) 577 at paras. 44-46 contrast the sentencing approach by the trialjudge and the Ontario Court of Appeal.

The sentencing judge (para. 45) ordered concurrent sentences to avoid a sentence that would “...destroy the accused and his family ...”. Thus, it appears he applied the “totality” principle that I will later explore in more detail. At para.44 Sopinka J. quotes the Ontario Court of Appeal decision at p. 177 and its order for consecutive sentences on the basis of therelationship (or lack of relationship) between the two offences: Nor was this a case where concurrent sentences were appropriate ... These two offences were totally unrelated.

There were two differentvictims and the offences were separated by a period of seven years. [Emphasis added.] [15] At para. 46 the majority of the Supreme Court of Canada then focus on the deferential standard of review for an appellatecourt of a decision by a sentencing judge to order concurrent or consecutive sentences: In my opinion, the decision to order concurrent or consecutive sentences should be treated with the same deference owed by appellatecourts to sentencing judges concerning the length of sentences ordered.

The rationale for deference with respect to the length ofsentence, clearly stated in both Shropshire and M. (C.A.), applies equally to the decision to order concurrent or consecutive sentences. Inboth setting duration and the type of sentence, the sentencing judge exercises his or her discretion based on his or her first-handknowledge of the case; it is not for an appellate court to intervene absent an error in principle, unless the sentencing judge ignored factorsor imposed a sentence which, considered in its entirety, is demonstrably unfit.

The Court of Appeal in the present case failed to raise alegitimate reason to alter the order of concurrent sentences made by the sentencing judge; the court simply disagreed with the result ofthe sentencing judge’s exercise of discretion, which is insufficient to interfere. [Emphasis added.] Though not explicitly stated, that conclusion would seem to implicitly exclude a principle of law that requires consecutive sentences foroffences that involve different victims, and are chronologically separate.

Put another way, the Court of Appeal had, in error, applied acorrectness standard to a subject that was not an issue of law. [16] R. v. Tremoyne, 2000 ABCA 322 at para. 9, 271 A.R. 391 has the Alberta Court of Appeal explicitly endorse the sentencingapproach for consecutive vs. concurrent sentences described in R. v. Jewell; R. v. Gramlick (1995), (ON CA), 83O.A.C. 81, 100 C.C.C. (3d) 270 (Ont. C.A.): In my view, the appropriate approach in cases such as the two under appeal is to first, identify the gravamen of the conduct giving rise toall of the criminal offenses.

The trial judge should next determine the total sentence to be imposed. Having determined the appropriatetotal sentence, the trial judge should impose sentences with respect to each offence which result in that total sentence and whichappropriately reflect the gravamen of the overall criminal conduct. In performing this function, the trial judge will have to consider notonly the appropriate sentence for each offence, but whether in light of totality concerns, a particular sentence should be consecutive orconcurrent to the other sentences imposed. [Emphasis added.]

From a subsequent use, it appears that the Ontario Court of Appeal ’ s use of the word “ gravamen ” means the part of an accusation weighing most heavily against an offender. This passage from R. v. Jewell ; R. v. Gramlick was also cited in R. v. Ewanchuk; R. v. S.B.E. , 2010 ABCA 298 at para. 13 , 490 A.R. 176 . [17] Subsequently in R. v. Jewell ; R. v. Gramlick , Finlayson J.A. concludes that a counselling offence should be subsumed into the related production of pornography offence as a “ means to an end ” , and served concurrently.

Sentences for possession of obscene and child pornography materials should be served concurrently with the more serious making child pornography offence. Sexual interference offences against four separate victims each warrant consecutive sentences. [18] Generally, it seems that the sentences of unrelated offences are served consecutively.

Where the actions that make up misconduct lead to two or more offences then those offences may, in certain circumstances, be served concurrently. [19] Three recent Alberta Court of Appeal decisions instruct on when sentences ought to be served consecutively or concurrently: R. v. B.S.M. ; R. v. Keough ; R. v. Lemmon . A fourth, R. v. Ruth , 2012 ABCA 168 , provides an interesting example of a complex multiple offence scenario that warranted a mixture of consecutive and concurrent sentences. Unfortunately, the latter three decisions do not mention or comment on the earlier decisions. None cite R. v. Jewell ; R. v.

Gramlick or R. v. Tremoyne . [20] As previously mentioned, R. v. B.S.M. , R. v. Keough , and R. v. Lemmon were noted to the Crown and Offender. Neither offered any commentary on the cases ’ meaning, operation, or scope.

The Crown counsel observed that sentencing a complex scenario such as the one faced by the Court was “ difficult ” , “ complicated ” , and for determination of whether a sentence ought to be concurrent or consecutive stated that “ it ’ s hard to break it down. ” Defence counsel did not appear to even attempt to apply these Court of Appeal cases in his submissions. [21] Further, the methodology employed in these three decisions seems, at least in part, to follow different schemes.

This observation is not intended to be a criticism of the special approach taken by the Court of Appeal in relation to sentencing decisions that was detailed by Watson J.A. in R. v. Arcand , 2010 ABCA 363 at paras. 212-229 , 499 A.R. 1 . Rather, and at the risk of entering into editorial comment, I believe that the present and apparently uncertain guidance as to whether sentences ought to be made concurrent or consecutive could benefit from further appellate commentary.

As observed by Justice Watson at para. 229, “ [c]onflicting appellate precedent creates agonies for conscientious trial judges, and a world of uncertainty, even injustice, for both offenders and the Crown. ” [22] If there are principles of law that determine whether two or more sentences are properly served consecutively or concurrently, those would, it seems, be reviewed on a correctness standard.

It would be helpful to sentencing judges to know: 1. what principles ought to guide order of consecutive vs. concurrent sentences, or 2. as suggested by the Defence, whether the entire issue is subsumed into the “ totality principle ” concept.

If the latter, then perhaps which sentences are served consecutively or concurrently is simply an arbitrary accounting that has little, if any, relation to the substance of the offences. [23] Despite the Defence submissions I presume, from the Alberta Court of Appeal decisions reviewed below, that the nature of multiple offences and the associated misconduct are in fact relevant to the issue of whether sentences ought to be served consecutively or concurrently. a. R. v. B.S.M. , 2011 ABCA 105 , 502 A.R. 253 [24] The first recent decision is by C ô t é J.A. in R. v. B.S.M .

The dissent by Justice Martin is not relevant to this analysis as it relates only to the “ totality principle ” and its application to this offence scenario. Here, the offender pled guilty to two related offences, that he had touched a young person for a sexual purpose, and made child pornography. The child pornography was recordings of the

offender engaged in sex with the young person. The sentencing judge had ordered a 4 year and 3 month sentence (sexual touching) and a2 year sentence (making child pornography) but ordered those be served concurrently: paras. 1-2. [25] Justice Côté concluded that was an error in principle. He rejected the proposition that two crimes that occur at the same timeor as part of the same transaction are properly served concurrently: paras. 28-29.

While the fact that two crimes involve separate victimsand occur at different times warrant consecutive sentences, that does not mean that two or more offences that occur at the same time andinvolve the same victim are served concurrently: para. 32. [26] The appropriate test (para. 30) is: … whether the two crimes were “essentially different in character and involve[d] different subject matter”: R. v.

Nichols, (1978) 1978ALTASCAD 136 , 9 A.R. 203 (C.A.) (para. 9) (a reserved decision). [27] A concurrent sentence is inappropriate where it nullifies the effect of a second offence (para. 27): Both crimes are serious offences (as Parliament makes plain); the maximum sentence is 10 years for each. The combination of the twocrimes is far worse. A concurrent sentence simply gives one crime no real effect. It takes years of legal training to doubt that basic point,obvious to lay persons. The public weighs action, not just words. Yet each offence is the opposite of a victimless crime. See R. v.

Johnas(1982) 1982 ABCA 331 , 41 A.R. 183 (C.A.) (paras. 25-26). [28] In this instance, the sexual touching and child pornography were different and distinct offences (para. 26): [26] Touching a child for a sexual purpose, and making child pornography, are distinct offences in the Criminal Code. None of theirelements is common to both offences. Even the definition of a child differs for the two purposes. It is quite possible to commit eitheroffence without committing the other offence, indeed without committing any element of it. Most sexual activity occurs without anypictures being made of it.

And today it is easy to make images (including pornography) without staging an actual event. Art, use ofexisting photographs, computer animation, and computer (or cut-and-paste) photography make it easy. So neither crime is necessary forthe other, nor even a practical incident of the other. [Emphasis added.] [29] Interestingly, R. v. B.S.M. takes the perspective that offences are different when they can, in theory, occur with unrelatedfacts. Here, the prohibited child pornography content recorded was of the unlawful sexual touching.

That did not ‘join’ the two offences,since as in some circumstances child pornography can be created without unlawful sexual touching. [30] This approach taken by Justice Côté in R. v. B.S.M. in this sense closely flows from the earlier decision of R. v. Roberts,2005 ABCA 11, 361 A.R. 149, where, at para. 55, the Court concluded that concurrent sentences were not appropriate for the offences ofvehicle theft and flight: [34] To give concurrent sentences then would be to wipe out one of the offences, for all practical purposes.

So long as the penaltygiven for flight were not larger, this would be a virtual judicial repeal of Parliament’s new criminal flight crime. That would violateParliament’s strong ... Alternatively, if the flight sentence were equal or higher, a concurrent sentence would wipe out the predicateoffence which the criminal was fleeing, and so make the flight successful. It would reward flight, not punish it. It would take JonathanSwift to appreciate the irony. Developing this theme, in R. v. Prymak, 2005 ABCA 377 at para. 9, 384 A.R. 350 the court cited R. v.

Roberts and stated “... that theremust be a consecutive sentence for a conviction for flight.” [emphasis added]. b. R. v. Keough, 2012 ABCA 14, 519 A.R. 236

[31] In R. v. Keough the question of whether sentences were concurrent or consecutive related to two separate charges of possession of child pornography. Both charges flowed from similar but different offence facts. In each case the child pornography was a legal R. v. Sharpe “ private use ” recording of legal sexual activity that included a young person: R. v. Keough , 2011 ABQB 48 at paras. 168 , 262. The recordings were subsequently received by the offender, without the consent of the young persons recorded: R. v. Keough , 2011 ABQB 48 at paras. 173, 264.

The unauthorized possession of those materials was possession of child pornography: R. v. Keough , 2011 ABQB 48 at paras. 216, 314. [32] The persons involved in the two child pornography scenarios (other than the offender) were different. The offender received the two recordings over a year apart: R. v. Keough , 2011 ABQB 312 at para. 172 , 512 A.R. 1 . [33] On appeal, Slatter J.A. (Berger J.A. concurring) concluded that the sentencing judge had erred in principle by giving separate consecutive sentences of nine months for each child pornography possession charge.

The fact that different young persons were depicted in each recording was immaterial; these were not different complainants: R. v. Keough , 2012 ABCA 14 at paras. 25 . The dates on and circumstances by which the recordings were received was immaterial, as the offences occurred on the same date, when the recordings were seized by police: para. 24, 29. All child pornography possession charges should be the subject of a single sentence (para. 28), as possession is the result of “ very closely related transactions ” (para. 31).

The quantity and character of child pornography is an aggravating factor: para. 26. [34] Paperny J.A., dissenting, applied R. v. B.S.M. , and reviewed case law on when offences are sufficiently related to warrant concurrent sentences: paras. 58-62.

Offences with different victims that occur at different times receive consecutive rather than concurrent sentences (para. 62) and (at para. 76): It is the relationship of each offence to the other, or the lack thereof, that determines whether the sentences should be consecutive or concurrent. [35] The trial judge had correctly characterized the two child pornography possession offences as distinct and each warranting a separate, consecutive sentence: paras. 64-76.

The “ totality principle ” is applied after appropriate sentences are determined for multiple offences: para. 77. [36] The conceptual basis for the R. v. Keough Court of Appeal majority decision does not seem consistent with subsequent commentary in R. v. Andrukonis , 2012 ABCA 148 . At para. 25, Fraser C.J.A. observes that: In theory, the Crown could, in cases of child pornography, lay separate charges for each piece of child pornography alleged to be possessed by an offender.

Typically, it does not do so, choosing instead to file one count only. … That would appear to indicate that there is no error in law to have separate and consecutive child pornography sentences. Neither the majority decision nor dissent (Slatter J.A.) in R. v. Andrukonis mentions R. v. Keough . [37] The subsequent case of R. v. Ruth involves numerous related ‘ possession ’ offences and other criminal offences.

The Court of Appeal confirmed the sentencing judge ’ s approach of grouping the offences by date, with all ‘ possession ’ charges per date served concurrent with each other, then each date-based group served consecutively. c. R. v. Lemmon , 2012 ABCA 103 [38] The third recent Court of Appeal decision is R. v. Lemmon , a decision of Justice Martin with Justices O ’ Brien and Picard concurring. Unlike R. v. B.S.M. and R. v. Keough , this decision is a “ Judgment Reserved ” , and therefore has particular weight: R. v. Arcand ; Practice Direction A4; Alberta Court of Appeal Notice to the Profession of March 27, 2000.

[39] The offender had been convicted of unlawful confinement, sexual assault, and choking with the intent to commit an indictable offence. All three offences flowed from a single scenario where a woman was trapped in a workplace, choked into unconsciousness, then repeatedly sexually assaulted: para. 2. [40] Justice Martin ’ s comments focus on the Criminal Code , s. 246 offence, choking to assist the commission of an indictable offence.

The Court ’ s analysis was in reaction to and a rejection of a practice that a s. 246 offence and the ‘ assisted ’ misconduct warrants concurrent sentences, as the two will have closely related facts and occur in temporal proximity: paras. 24-25. [41] The Court concludes that the ‘ choking ’ offence cannot be seen as incidental to an ‘ assisted ’ offence; s. 246 has a high maximum sentence of life (para. 27) and relates to an activity with life-threatening effects (para. 28).

The second basis for a s. 246 conviction, facilitation of an offence by administration of a stupefying or overpowering drug ( Criminal Code , s. 246(b)), should be treated in an analogous manner: paras. 33-36. [42] A concurrent sentence with the ‘ offence assisted ’ , in these circumstances, may not adequately reflect the sanction warranted by such dangerous misconduct.

However, the manner in which the sentence for ‘ associated ’ offences is structured is less significant than the overall total sentence, and can therefore either involve separate consecutive sentences, or one offence ‘ aggravating ’ the other: 30 That may be achieved by imposing either a consecutive sentence, a concurrent sentence that is greater than that imposed for the underlying offence, or a sentence for the underlying offence that has been significantly increased because it was accompanied by the choking .

To illustrate, if the circumstances of the sexual assault would ordinarily call for a sentence of three years imprisonment, but was aggravated by the victim being choked to unconsciousness, a three-year sentence would no longer be sufficiently responsive. The appropriate sentence could be achieved by the sentencing judge imposing a two-year consecutive sentence for the choking, or a five-year sentence concurrent to the sexual assault.

Alternatively, the sentencing objective could be met by the judge explaining in his or her reasons that the sentence imposed for the sexual assault has been increased to five years to fairly reflect the choking, a most serious aggravating factor.

Where this option is employed, the sentence imposed for the choking offence may be made concurrent. [Emphasis added.] [43] However, where the ‘ assisted ’ offence involves serious harm it may be appropriate to order concurrent sentences, or even apply the Kienapple principle to stay the s. 246 offence: 31 Exceptions may be warranted where the underlying charge fully captures the s. 246 offence . For example, an offender may be charged with a more serious form of sexual assault, such as aggravated sexual assault, where he endangered the victim's life by choking her in the course of the sexual assault.

In such circumstances, a concurrent sentence may be appropriate, if a conditional stay by application of the Kienapple principle is not . The case of R v Wheeler , 2011 BCCA 248 , 305 BCAC 223 , offers an example. There, the accused had choked the victim to unconsciousness three times during a vicious sexual assault. As a result of the choking, he was charged with aggravated sexual assault by endangering life pursuant to s. 273 of the Code . In this way, the choking became an integral part of the sexual assault and was fairly reflected in the 15-year sentence imposed at trial and upheld on appeal.

The accused was also charged with choking to enable him to commit the sexual assault, but it appears (rightly so) that the sentence imposed for that offence was made concurrent. The point is that the seriousness of the choking must be reflected in the ultimate sentence . [Emphasis added.] d. R. v. Ruth , 2012 ABCA 168 [44] In R. v. Ruth the Court of Appeal panel (Watson, Bielby, and O ’ Ferrall, JJ.A.) confirm the sentencing for 19 counts on a variety of offences.

The offences relate to one offender, and occurred on a number of separate dates: May, 2010 - breach of recognizance for failing to report to a supervising officer. August 19, 2010 - the offender was stopped in a motor vehicle and in breach of a recognizance found in possession of a stolen vehicle with a stolen license plate, which contained various illegal drugs, and approximately one hundred sets of stolen or false identification documents and associated financial documents including credit cards, and break and enter tools.

August 23, 2010 - A search of a rental facility used by the offender identified hundreds of stolen items, worth about $10,000. October 18, 2010 - in breach of a recognizance the offender was found drunk and creating a nuisance in an apartment building. May 24, 2011 - the offender was arrested for operation of a motor vehicle without a license and in breach of a recognizance; when stopped he fled. The vehicle was found to contain illegal drugs, as well as stolen and forged ID. [45] The sentencing judge had generally grouped the offences by date, with offences on each date served concurrently.

Three ‘ date-to-date ’ groups were served consecutive to one another (August 19 and 23, 2010; May 24, 2011), while the May and October 18, 2010 offences were concurrent to the other offences. [46] The Court of Appeal generally confirmed this sentencing approach, and cited no caselaw for an appropriate approach or relevant principle. Each August 19, 2010 offence had received an identical 3.5 year sentence, to be served concurrently; the Court of Appeal reduced the recognizance breach to a one year concurrent sentence. The stolen locker content offence was separate, and served consecutive to the other groups.

The May 24, 2011 offences were served concurrently, though that seems potentially inconsistent with the principle in R. v. Roberts and R. v. Prymak that flight (here a Criminal Code , s. 129(

a) obstruction of justice charge) always warrants a consecutive sentence. [47] An explanation is made of the ‘ grouping ’ approach at para. 18: ... It is evident to us that the sentencing judge applied the restraint concept of totality more than once in his analysis of the case before him, firstly by accumulating groups of offences according to date . On the other hand, he made no error in concluding that the offences of May 24, 2011 must be, as group, consecutive to the offence of August 26, 2010.

He also made no error in concluding that the offence of August 26, 2010, which was in point of fact representative of many separate offences, was properly consecutive to the offence grouping of August 23, 2010 which also consisted of a variety of serious crimes, notably drug dealing. The sentencing judge applied totality again twice, first by folding the sentences in for the various breach offences into concurrency and also by making the earlier counts dating from May of 2010 also concurrent . ...

This approach seems to combine the ‘ totality principle ’ discussed below into a multi-stage assessment of an offender ’ s liability. e. Synthesis of an Appropriate Approach [48] The Alberta Court of Appeal cases that comment and instruct on concurrent vs. consecutive sentencing do not seem to disclose a single set of guidelines or a consistent approach to this issue. Being mindful of the special relevance of R. v.

Lemmon as a “ Judgment Reserved ” , and that all these cases are binding on subordinate courts including the Alberta Court of Queen ’ s Bench, I propose to sentence KDH under the following principles: 1. It is generally appropriate to group offences that involve related persons, facts and events, and evaluate concurrent vs. consecutive sentence assignment within those groups: R. v. Lemmon ; R. v. Ruth . 2. Chronologically distinct offences or offence groups warrant consecutive sentences: R. v. Ruth . 3.

Offences or offence groups that involve different complainants or victims warrant separate consecutive sentences: R. v. Jewell ; R. v. Gramlick ; R. v. Tremoyne ; R. v. B.S.M.

4. In an offence group, a concurrent sentence should not negate the intent of Parliament that sentencing courts sanction categories of misconduct: R. v. Roberts ; R. v. B.S.M. ; R. v. Lemmon . 5. The total sentence of a group of offences may be calculated by a combination of consecutive sentences, or by certain offences acting as aggravating factors that increase the sentence assigned to the most serious offence: R. v. Lemmon . 6. The most serious offence in an offence group is evaluated by the facts of the case: R. v. Lemmon . 7.

All ‘ possession ’ type offences that relate to the same date are served concurrently: R. v. Keough ; R. v. Ruth . [ 49 ] This synthesis involves several assumptions which I wish to make explicit. R. v. Jewell ; R. v. Gramlick and R. v. Tremoyne seem to indicate that an early step in sentencing is to identify an appropriate total sentence, that is then allocated among multiple offences. This ‘ top down ’ approach is not reflected in subsequent Alberta Court of Appeal decisions, including R. v. Lemmon and R. v. Ruth . Further, that approach is clearly rejected in R. v.

D.J.D. , 2010 ABCA 207 at para. 144 , 87 A.R. 84 : ... This principle set out in s. 718.2(

c) of the Code is a reflection of the concept of restraint. It must be applied in a reasoned way. A decision as to a total sentence for a group of related offences is not achieved by selecting a number at random, or by an approach involving a general rounding down. The sentencing court is to calculate what the sentences would be individually and then determine a collective result by calculating what the total would be for imprisonment terms which could properly be dealt with consecutively. It is then against that cumulative number that the court takes a final view of the case under s. 718.2(

c) of the Code to see if that total would be unduly long or harsh. The court then adjusts accordingly . [Emphasis added.] [ 50 ] R. v. Keough is relevant only to ‘ possession ’ offences where an offender is found in possession of illegal materials on a specific date. R. v. Ruth suggests that principle may apply to possession of different kinds of prohibited materials, and not only child pornography. The present case does not involve possession of more than one form of contraband, so I therefore do not need to investigate this issue further. [ 51 ] I do not interpret R. v. Prymak and R. v.

Roberts to indicate that certain offences, by law, always require consecutive rather than concurrent sentences. I make that observation with full awareness that those cases explicitly indicate that a Criminal Code , s. 249.1 offence is always served consecutive to other offences. I interpret the instruction in R. v. Prymak and R. v. Roberts , in light of the Judgment Reserved of R. v. Lemmon , to mean that a conviction for flight is, in most instances, an aggravating factor to another offence, or warrants a separate sentence.

This is a fact-specific question, as there may be instances where the flight misconduct becomes an element of more serious misconduct, perhaps for example where driving led to a manslaughter conviction. [ 52 ] Similarly, I interpret R. v. B.S.M. to help evaluate where two offences are of a kind that, following the R. v. Lemmon approach, warrant separate consecutive sentences, or that one offence acts as an aggravating factor to another.

Where two offences can, in theory, occur independent of another, that generally indicates that Parliament intended that one offence ’ s sentence should not be subsumed in the other. [ 53 ] The approach I will therefore apply is to: 1. identify distinct offences and groups of related offences, 2. in relation to groups of offences, consider the facts of that offence group and:

a) identify a “ dominant ” offence that involves the most serious misconduct in this instance ,

b) review the other offences in that group, and determine if an offence:

i) should be stayed by application of the Kienapple principle, ii) is fully subsumed in the dominant offence, and warrants a concurrent sentence, or iii) has elements that are distinct from the dominant offence, and either presumptively: (

A) acts as an aggravating factor to the “dominant” offence, or (

B) warrants a separate consecutive sentence; and 3. assign sentences:

a) to distinct offences, and

b) to the dominant offences in offence groups, and any other group offences that warrant a consecutive sentence. This ‘sum sentence’ will then be evaluated via the ‘totality principle’ to obtain an appropriate ‘global sentence’. [54] Anticipating the analysis to follow, when evaluating offence groups I will generally treat non-dominant offences asaggravating factors that potentially warrant a longer dominant offence sentence, where that non-dominant offence has elements that aredistinct from the dominant offence.

The degree to which a longer dominant sentence is appropriate, if any, will depend on the facts ofthat offence group. This approach is explicitly identified as an appropriate alternative in R. v. Lemmon, at para. 30. 3. The Totality Principle [55] 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’. The leading case on application of the totality principle, R. v. C.A.M., (SCC),[1996] 1 S.C.R. 500, 194 N.R. 321, is also a critical comparator for instances of complex sexual criminal misconduct. R. v. C.A.M., atpara. 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. [56] Chief Justice Lamer then 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.

[ 57 ] A global sentence is not excessive simply because it is greater than the normal range for the most serious offence: R. v. Wharry , 2008 ABCA 293 at para. 35 , 437 A.R. 148 ; R. v. Tiegs , 2012 ABCA 116 . [ 58 ] As noted, the Alberta Court of Appeal in R. v. D.J.D. has been explicit that the totality principle is applied after individual offence sentences have been assigned, and concurrent sentences identified. IV. Global Sentencing Factors A. Statutory Factors [ 59 ] The parties do not dispute that certain sentencing principles set in the Criminal Code apply in the present case.

Criminal Code , s. 718.01 requires that denunciation and deterrence are the principle sentencing objectives: 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. [ 60 ] Criminal Code , s. 718.2 enumerates certain specific mandatory sentencing principles. Two are particularly relevant. One is “ ... that the offender, in committing the offence, abused a person under the age of eighteen years ” : Criminal Code , s. 718.2(a)(ii.1).

That obviously applies to the four child complainants. [ 61 ] Criminal Code , s. 718(a)(ii) requires that a sentencing court consider “ ... evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim ” . [ 62 ] KDH was clearly in a position of authority and trust in relation to his two biological children, particularly in light of the fact that he retained joint custody. I conclude that in the BA and RA households KDH operated in a position of trust, at a minimum he was the common-law partner to BA and RA and had significant authority on that basis.

The fetishist Master/slave context that emerged with RA and MA is an additional basis for that conclusion. [ 63 ] That said, there is some dispute between the parties as to whether an abuse of trust or authority existed with TM, and s. 718 (a) (ii) should therefore apply. The Offender argued that TM was an adult at the time, and could freely have left the household.

I effectively came to a different opinion in the TM Trial Decision, and concluded that TM had felt compelled to engage in sexual activity due to her lack of alternative lodging and support, KDH being her Master, and the operation of the KDH/RA household in a bondage, domination, submission and masochism [ “ BDSM ” ], fetishist context. I think that is a basis to evaluate KDH ’ s conduct and influence over TM, and the degree to which he took advantage of and abused that authority. B. Common-Law Factors 1.

Relevant General Factors for Offences that Involve Children [ 64 ] Where the subject of an offence is a child, that is always an aggravating sentencing factor. As Chief Justice Fraser observed in R. v. T

[…]