R v Friend, 2014 ABQB 744

Court of Queen ’ s Bench of Alberta Citation: R v Friend, 2014 ABQB 744 Date: 20141208 Docket: 120507991Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Jason Arthur Friend 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 By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any manner. NOTE: This judgment is intended to comply with the restriction so that it may be published. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice M.C. Erb _______________________________________________________

[1] Jason Arthur Friend is here today to receive his sentence after having been found guilty of 10 Criminal Code offences. Theyinclude six counts of procuring sexual services from two teenage girls both then under the age of 18 years contrary to section 212 (4);two counts of luring with the use of a computer device; one count of possessing child pornography contrary to

section 163.1 (4) and onecount of counseling the under-age girls to make child pornography. The charges all arose from incidents which took place in December2011 in the vicinities of Sundre and Calgary, Alberta. [2] The circumstances in which the offences were committed involved planned and deliberate deception by Mr. Friend posingonline as two fictitious characters, an 18- year-old female and a wealthy ‘sugar daddy.’ I now summarize the findings of fact at trial forthe purposes of the sentencing process. [3] Mr.

Friend was found guilty of communicating with 17-year-old CJF, acquiring sexual services from her in exchange forcash payments, on the 9th, 13th, 15th and 21st days of December 2011. He also communicated with 16-year-old CHB, acquiring sexual services for cash from her on the 17th and 21st days of December 2011. [4] Mr. Friend used computer systems, namely Facebook and email to communicate with each of the two victims for thepurpose of acquiring the sexual services.

Using information from CJF’s Facebook page, he posed as the fictitious female, befriending herto the point the victim thought she was in an online relationship with this personae. The promise of a relationship, cash and benefits wasused to lure her into sexual activities with the male personae, ultimately disclosed as Mr. Friend. He also manipulated her into recruitingCHB for the purpose of sex-for-payment including a three-party session. Once arrangements were made, he then communicated withCHB electronically, luring her with promises of payments and benefits as well. [5] Mr.

Friend continued his ruse as the male personae throughout his encounters with both victims. [6] In addition, Mr. Friend coaxed CJF into sending him pictures of her own bared breasts and genitals, at that point, someoneshe believed was her online girlfriend. He later sought more images as the fictitious male personae and acquired another image of herbreasts but she refused to send the further explicit pictures he sought. [7] As part of the sentencing process, a pre-sentence report and a Forensic Assessment Outpatient Service (FAOS) report wereprepared and provided to the Court. [8] The Reports disclose that Mr.

Friend is 49 years of age. He has been steadily gainfully employed. At the time of theoffences, he owned and operated a landscaping company with numerous employees. He has since been an employee and more recentlyhas established an irrigation business. Despite the nature of the charges, Mr. Friend has become closer with his wife presumably due tohaving received voluntarily 120 hours of professional counselling to address sexual addiction and related issues and marriagecounselling. Mr. Friend’s counsel advised the Court that Mr. Friend has the support of his wife in the rehabilitation process. [9] Mr.

Friend has had difficulties with substance abuse over the years but claims sobriety for more than a decade. The PSRconfirmed this through his Alcoholics Anonymous sponsor. Mr. Friend has a relatively minor unrelated criminal record. His longestsentence was 30 days in jail for a drug-related offence in Medicine Hat. He has had no criminal convictions since 1984. Mr. Friend hasbeen assessed by FAOS as a “low to moderate risk for future sexual offending”.

He is described as narcissistic, self-absorbed and aperson who would benefit from individual counselling and treatment for sexual offending. [10] Sections 718, 718.1 and 718.2 of the Criminal Code of Canada set out the principles of sentencing are to: • Denounce unlawful conduct;• Deter the offender from committing the crime again;• Send a message to the public and community that behaviour such as that which we have witnessed in this case is not to be tolerated;• Protect the public by separating the offender from the public;• Assist the offender in his rehabilitation;• Provide reparation to victims where possible;• Promote responsibility in the offender and encourage him to acknowledge harm done. [11] The Alberta Court of Appeal has directed that the sentencing process must take into account the nature of the offences as wellas the circumstances of the individual offender (R. v.

Hastings (1985), 1985 ABCA 20 , 19 C.C.C. (3d) 86, ABCA, at para. 6). [12] In R. v. McNeil (1997), (NS SC), 164 N.S.R. (2d) 27 (S.C), the function of sentencing was described thisway: it is “the public pronouncement of punishment administered by the authority of the court as trustee of the public's confidence.

Itought to be imposed in a way that applies the rule of law, tempered with justice, administered with the knowledge, good conscience,instincts and experience of the judge and guided, where appropriate, by persuasive or binding precedent.” [13] In determining a fit and proper sentence, well-recognized principles come into play. The primary consideration is alwaysprotection of the public.

In addressing that primary concern, the sentencing Court musts consider whether such protection may best beachieved through specific deterrence of the offender, general deterrence of those inclined to engage in the same conduct, rehabilitation ofthe offender, or a blend of these factors. While weight is to be given to each factor depending on the circumstances of each case, Section718.01 specifically addresses offences against children.

For those offences, Parliament has narrowed the focus to denunciation anddeterrence with child protection as the critical contextual consideration. [14] Also important is the principle of proportionality. This principle sentencing links the gravity of the offence to the degree ofresponsibility of the offender. Ultimately, a fit and proper sentence must be crafted based on all the legitimate principles which reflect thegravity of the offence committed and the degree of moral blameworthiness of the offender.

In doing so, the sentencing process must takeinto account the offender’s personal situation and a consideration of any applicable aggravating and mitigating factors or circumstances.In Mr. Friend’s case, he committed offences against two victims under 18 years of age. The age element explicitly forms part of the

prohibited conduct addressed in the charges. [ 15 ] I have found that the aggravating factors here include: • the absence of a mistake as to age of the victims.

Their ages were known to the offender when he embarked on the conduct; • the predatory nature of the conduct; • the offenders’ indifference to any potential harm to demonstrated by his own description of them to the FAOS reporter as “bad asses”; • the use of computer anonymity and fictitious role playing; • the offender’s high degree of moral culpability. [ 16 ] The mitigating factors include: • the offender was not in a position of trust or authority to either victim; • he has no prior criminal convictions for similar offences; • he has been steadily gainfully employed and has support for his rehabilitation from his family and from his wife with whom efforts have been made to repair their relationship; • he has participated in personal voluntary counselling to deal with his sexual conduct and underlying issues; • he has demonstrated some ability to rehabilitate as disclosed in the Reports specifically his commitment to sobriety confirmed by his sponsor for the past 12 years; • he has abided by all terms of his pre-trial and continuing release conditions. [ 17 ] Counsel for Mr.

Friend suggests that based on the ages of the victims as older teens, they are less vulnerable and that this should be taken into account as a non-aggravating factor. He cites

section 150.1 of the Criminal Code in support of this submission. However, this Court does not accept that the Criminal Code makes any such distinction. There was no supporting expert or other evidence placed before this Court. The Court will not make this presumption. [ 18 ] Mr. Friend, please stand. Your conduct was exceedingly reprehensible. It discloses the worst kind of preying on children who are by definition, vulnerable. You obviously studied Facebook pages until you spotted a suitable teenager with particular vulnerabilities and pursued her through the pretense of being a teenager yourself.

You sought to normalize deviant behaviour to better lure your victim into conduct which she, by her own assertion, would not have sought on her own. You convinced her to not only find another participant for more sordid activities, you asked her to find, a “young friend”. How telling. Your conduct will result in a penitentiary term.; that is what you deserve and it is what the nature of these charges demand. [ 19 ] I have taken into account all of the principles and objectives of sentencing and I have considered carefully the submissions of both Counsel.

I have considered the aggravating and mitigating circumstances including those mentioned a few minutes ago. I have taken into account your high degree of moral blameworthiness demonstrated by the cunning and manipulation you used to exploit these victims. [ 20 ] While I accept that you have made positive efforts towards your own rehabilitation, this sentence is intended to reflect the gravity of exploiting children and the cowardly, predatory method of doing so using the anonymity of the internet and fake personae.

Your conduct requires a strong statement of denunciation and deterrence both specifically to yourself and generally to other predators like you. [ 21 ] Jason Arthur Friend I sentence you to a period of incarceration in a federal penitentiary on a global basis for 6 1/2 years, reflected in the following allocation: Counts 1, 2, 3, 5 Procuring sexual services for cash from CJF - 12 months on each count, served concurrently; Counts 4, 6 Procuring sexual services for cash from CHB – 12 months on each count to be served concurrently; Count 7 Luring CJF by the use of a computer – 24 months; Count 8 Luring CHB by the use of a computer- 18 months;

Count 9 Possession of child pornography, 6 months served currently with count 10; Count 10 Counselling the making of child pornography 12 months . [ 22 ] The victim surcharge is waived given the period of incarceration. [ 23 ] The Crown’s applications for the following ancillary orders are granted: i. Forfeiture of all property seized by police containing prohibited material including trial exhibits pursuant to sections 490.1 and 164.2 of the Criminal Code ; ii. Provision of a sample of DNA for the purpose of the DNA bank pursuant to

Section 487.051 Criminal Code ; iii. Compliance with the Sex Offender Information Registration Act pursuant to sections 490.012 and 490.013(2.1) of the Criminal Code ; iv. Prohibition from working or volunteering in a capacity involving being in a position of trust or authority towards persons under the age of 16 years pursuant to section 161(1) (b), for five years following completion of this sentence; v. Prohibition from communicating electronically with a person under the age of 16 years; pursuant to section 161(1) (

c) excepting family members or members of his immediate household during which time he is prohibited from concealing his true identity for any purpose whatsoever, for five years following completion of this sentence; vi. Prohibition from communicating with the victims during his incarceration pursuant to

section 743.21. Heard on the 8 th day of October, 2014. Dated at the City of Calgary, Alberta this 8 th day of December, 2014. M.C. Erb J.C.Q.B.A. Appearances: M.J. O'Connor for the Crown J.J. Kelly for the Accused