Court of Queen ’ s Bench of Alberta Citation: R v Adams, 2016 ABQB 648 Date: 20161117 Docket: 150231140Q1 Registry: Edmonton Between: Her Majesty the Queen - and - David Spencer Adams Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4. By Court Order, information that may identify the victim and/or the child witness must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the restriction so that it may be published. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice T.D. Clackson _______________________________________________________

I. Introduction and

Summary [ 1 ] I convicted the accused of offences under s. 163.1(3), 172.1(1)(A), 172.1(1)(B), 264(2)(B), 151, 264.1(1)(A). My reasons for doing so are part of Appendix A. The proceeding then moved into the sentencing phase. However, the accused launched three Constitutional challenges. He sought a stay of proceedings and an award of solicitor/client costs pursuant to s. 24(1) of the Charter of Rights and Freedoms.

If that application was not successful, he sought two additional s. 52(1) declarations: • That the minimum punishments prescribed by s. 151 and s. 172.1(2) are of no force and effect as violating s. 12 of the Charter ; and • that s. 719(3) and (3.1), which place limits on credit for time served while on remand, are of no force and effect as contrary to s. 7 , 11(

d) and 12 of the Charter . [ 2 ] The stay application proceeded first. It consumed approximately seven weeks of evidence and argument. The foundation for the stay was the treatment the accused says he received at the hands of Edmonton Remand Centre staff over the twenty months that he was in the Centre. I have concluded, that there were instances of constitutionally impermissible treatment of the accused by Centre staff. However, I have concluded that an appropriate remedy for the established breaches of the accused’s Charter of Rights is not a stay of proceedings.

The constitutionally inappropriate actions by the state can be adequately and fairly addressed in the sentence imposed on the accused.

a) Additionally, some of the treatment received by the accused, while not constitutionally impermissible, was more harsh relative to him than the norm. As such I have concluded that the quality of his pretrial incarceration warranted additional credit against his sentence.

b) In addition, the accused also complained about the unilateral action taken by the Crown, to remove him from the Remand Centre, so that he could be questioned by the Edmonton Police Service.

At that time, there was a warrant for the arrest of the accused authorizing taking the accused into custody, although counsel should have been notified about the application to remove the accused, the failure to do so does not amount to a breach of the accused’s rights. [ 3 ] On the subject of the constitutionality of the minimum punishments prescribed by s. 151 and 172.1(2) and 271, the parties agreed that whatever the minimum prescribed, the accused was entitled to a credit for the time he has served pre-conviction. That was a period of at least twenty months.

It is plain that given the accused’s multiple convictions involving multiple persons, the accused would be sentenced to a period of some years in prison. Furthermore, every offence committed by the accused which carries a minimum resulted in a sentence of in excess of the minimum. As such, given the circumstances here, a minimum sentence for an offence is largely irrelevant. Therefore, there is in my view, no reason to consider the constitutionality of minimum sentences.

That subject is better determined when it is actually an issue. [ 4 ] The constitutional challenge respecting credit for time served is also moot, in my view, by virtue of the decision by the Supreme Court of Canada in R v Summers , 2014 SCC 26 . An accused person is entitled to a credit of 1.5 days for each day that he has served in remand. That is the quantification aspect of credit for pre-trial custody. In this case, as I have said there is also a credit which relates to the quality of the time spent on remand.

That aspect is both assessed relative to the general environment and also relative to the specific circumstances experienced by the accused. Therefore, while one could say the government has foreclosed time served credit on the basis of 2 for 1, which was the common practice, in favor of the present regime, in this case, the accused will get credit based on both on the quantity and the quality of the time he has spent on remand. The credit he will receive will exceed the usual 2 for 1 credit which existed before the Truth in Sentencing Act Amendments.

In short, the common law has developed a new approach to the time served analysis. This approach allows for consideration of the quality of the time served. That part of the time analysis can result in credit in worthy cases but does so on a more individualized basis, rather than a credit being given to every prisoner no matter how meritorious. Since this is a worthy case, it becomes unnecessary to determine the constitutionality of sections 719(3) and (3.1). [ 5 ] On October 24, 2016, I advised Mr.

Adams and the Crown that I had concluded his s. 12 Charter Right had been violated but that a stay of proceedings was not the appropriate remedy. [ 6 ] On November 14, 2016, I sentenced Mr. Adams in accordance with the reasons which follow. II. Circumstances [ 7 ] The accused has been found guilty of the following charges: Count 3: On or about the 30th day of June A.D. 2013, at or near Edmonton, in the Province of Alberta, did by means of telecommunication, communicate with J.C., a person who is under the age of eighteen years, for the purpose of facilitating the commission of an offence under

section 163.1, contrary to

Section 172.1(1)(

A) of the Criminal Code of Canada ; Count 6: Between the 28 th day of April, 2012 and the 8 th day of August, 2012, both dates inclusive, at or near Edmonton, Alberta, did by means of a computer system, communicate with a person who was, or was accused believed was under the age of sixteen years, for the purpose of

facilitating the commission of an offence under

Section 151 or 152 or 280 with respect to that person, contrary to

Section 172.1(1)(

B) of the Criminal Code of Canada ; Count 10: On or between the 30 th day of November A.D. 2012 and the 28 th day of February A.D. 2013 at or near Edmonton, in the Province of Alberta, did, by means of telecommunication, communicate with S.J., a person who is under the age of sixteen years, for the purpose of facilitating the commission of an offence under

Section 151 or

Section 271, contrary to

Section 172.1(1)(

B) of the Criminal Code of Canada ; Count 12: On or between the 24 th day of March A.D. 2013 and the 31 st day of August, A.D. 2013, at or near Edmonton, in the Province of Alberta knowing that K.W. is harassed or being reckless as to whether K.W. is harassed, did, without lawful authority, repeatedly communicate directly or indirectly with K.W. thereby causing K.W. to reasonably, in all the circumstances, fear for her safety, contrary to Section 264(2)(

B) of the Criminal Code of Canada; Count 13: That he, between the 1 st day of May, 2013 and the 27 th day of January, 2014, both dates inclusive, at or near Edmonton, Alberta, did, for a sexual purpose, unlawfully touch, directly or indirectly with a part of his body or with an object, a part of the body of R.B., a person under the age of sixteen years, contrary to

Section 151 of the Criminal Code of Canada; Count 17: That he, between the 1 st day of May, 2013 and the 27 th day of January, 2014 both dates inclusive, at or near Edmonton, Alberta, did, by means of telecommunication, communicate with a person who was, or who the accused believed was, under the age of 18 years, for the purpose of facilitating the commission of an offence under Subsection 153(1),

Section 155, 163.1, 170 or 171 or Subsection 212(1), (2), (2.1) or (4) with respect to that person, contrary to

Section 172.1(1)(

B) of the Criminal Code of Canada; Count 21: Between the 17 th day of October, 2013 and the 24 th of December, 2013 both dates inclusive at or near Edmonton, in the Province of Alberta, did unlawfully contravene Section 264(1) of the Criminal Code of Canada; Count 27: On or about the 26 th day of November, 2013 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 M.M., a person under the age of sixteen years, contrary to

Section 151 of the Criminal Code of Canada; Count 30:

On or about the 10 th day December, 2013, at or near Edmonton, Alberta, did knowingly utter, convey or cause S.S. B-H to receive a threat to cause death or bodily harm to S.S. B-H, contrary to

Section 264.1(1)(

A) of the Criminal Code of Canada. Count 24: On or between the 11 th day of November, A.D. 2013 and the 14 th day of January A.D. 2014, at or near Edmonton in the Province of Alberta, did, by means of telecommunication, communicate with K.S., a person who is under the age of sixteen years, for the purpose of facilitating the commission of an offence under

Section 151 or 152 or

Section 271, contrary to

Section 172.1(1)(

B) of the Criminal Code; Count 38: That he, on or about the 25 th day of January, 2014, 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 C.H.H., a person under the age of sixteen years, contrary to

Section 151 of the Criminal Code of Canada. Count 39: That he, on or about the 25 th day of January, 2014 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 M.S., a person under the age of sixteen years, contrary to

Section 151 of the Criminal Code of Canada; Count 46: On or about the 9 th day of December, 2013, at or near Edmonton, in the Province of Alberta, did, transmit, make available, or distribute child pornography, contrary to

Section 163.1(3) of the Criminal Code of Canada. [ 8 ] The specific circumstances of his crimes will not be repeated here.

They may be found in the agreed statement of facts and my trial reasons (both of which are in Appendix A hereto). [ 9 ] Prior to the commencement of the trial, the accused offered a number of guilty pleas and filed constitutional notices seeking relief under s. 24(1) of the Charter of Rights and Freedoms and declarations under s. 52(1) of the Charter . [ 10 ] The trial concerned itself with determining whether some counts on the Indictment, which the accused denied, had been proved and whether the potentially aggravating features on some of the counts on which the accused had admitted his guilt had been proved. [ 11 ] At the conclusion of that portion of this proceeding, we moved into the sentencing phase and the accused’s motions for charter relief were heard.

In the stay application, we heard evidence and argument over a period of approximately seven weeks. [ 12 ] The accused, bearing the burden of establishing the alleged breaches, testified and I admitted his detailed notes of the specific events about which he had complained, into evidence. In that regard, the sheer volume of the notes written by the accused made the usual process of refreshing his memory ridiculously cumbersome. In my view, it was much more efficient to simply put the notes in evidence and proceed from there.

Despite the Crown’s objection, which was based on applying the usual rule and the impact on the assessment of the accused’s credibility, I determined that the examination and cross-examination of the accused on his notes and generally, provided a fair basis to assess his credibility and the accuracy of his evidence. [ 13 ] After the accused testified, a number of inmates offered corroborative evidence. The Crown then led evidence from the Director of the Remand Centre, other administrative personnel and some of the guards implicated by the accused in the alleged

impermissible behaviours. [ 14 ] Subsequently, a psychologist tendered a report and testified respecting the accused’s personality, recidivism risk and the impact of the alleged Remand Centre events on the accused’s mental health. I then heard oral argument and received written argument from both parties. III. Stay Application A. Trang [ 15 ] During the course of proceedings there were a number of instances where the accused made reference to Justice Marceau’s decision in Trang v Alberta (Edmonton Remand Centre), 2010 ABQB 6 .

In that civil litigation, the parties defendant included the Director of the Edmonton Remand Centre and the Government of Canada. Neither is a party to this proceeding. [ 16 ] The findings in Trang involving behaviours, conditions, attitudes, best practices and the like were supported by evidence. Those findings are of very limited assistance to me. Firstly, the evidence in this proceeding is specific to Adams, as it must be to be relevant.

Therefore, whether the system is generally good, bad or indifferent, is of no assistance in this proceeding. [ 17 ] Secondly, the findings of fact made by Marceau, J. are historic and cannot be taken to be indicative of present circumstances. [ 18 ] Thirdly, the findings of fact made by Marceau, J. were case specific.

This is not that case. [ 19 ] Finally, while the specific treatment the accused received while incarcerated is highly relevant to the determination I have to make, this is not the forum to launch an investigation into incarceration practices, use of segregation, effective behaviour management of Remand prisoners, proper nutritional practices, appropriate mental and physical activities for persons housed in various kinds of institutions across the country, appropriate clothing and footwear for inmates and the like. [ 20 ] I do not mean to belittle, the herculean effort expended by my colleague to decide the host of issues raised in Trang .

The challenge he faced was daunting and his carefully reasoned decision stands as a great credit to his patience and perseverance. [ 21 ] Simply put, however, Trang is not Adams. Therefore, I will not comment on the systemic issues save for their particular impact upon Adams. B. Factual Analysis 1. The More Minor Complaints [ 22 ] Adams complained about frequently being deprived of juice with his meals. He implied that may have been because Corrections Officers (hereinafter referred to as Guards or CPO’

s) were trying to punish him because he had gotten under their skin. I am told that lack of juice was a periodic but chronic problem and Adams was not specifically targeted. Be that as it may, Adams lost weight while at the ERC and complained about hunger. Being deprived of juice was part of the reason his experience was as it was. On the other hand, I have no basis to conclude that on the subject of juice and meals, he was singled out for any specific retributive treatment.

His experience was basically the same as that experienced by the other inmates in the MAX pods, also known as administrative segregation units. [ 23 ] Adams made a number of complaints of a similar nature relating to other services.

He complained about: • Being locked up for 23 hours with only 2 thirty minute breaks or exercise periods; • Cramped and unhygienic cell conditions; • No access to the outdoors or view of the outside world; • No access to exercise equipment; • Little access to television • No visits with family on a face-to-face basis; • Limited access to books and legal texts; • Sporadic access to newspapers and that newspapers were often dated; • No access to programs except addictions programming; • Inadequate and unpalatable food; • Occasional denial of bedding;

• Poorly fitting clothing and poorly fitting footwear; • No amusement aids, such as games or balls, except playing cards. [ 24 ] These complaints mostly relate to his time in the MAX pods of the institution. Some were also concerns while Adams was on unit 5C. A pod consists of four units each of which has a letter. For example, 5C is the C unit of pod 5. There are three tiers in each unit. The top tier of 5C was a protective custody tier with specific rules relative to times for lock up and what is known as exercise time.

Exercise time, simply means time out of one’s cell, where one can shower, make calls, watch TV and the like. Adams was housed on 5C for roughly 8 months before being moved to a MAX pod unit. [ 25 ] The foregoing complaints are all experiences that Adams shared with all other inmates at the Centre. His treatment was no different than the rest.

I recognize that Adams complained that he felt he suffered more of these deprivations than other inmates, but the only evidence of that impression, comes from the accused and he has not convinced me that his experience was any worse than anyone else’s. [ 26 ] I formed the distinct impression from reading his notes and his requests for information (complaints) and from listening to his testimony, that he was hypersensitive to every perceived injustice. As Dr. Rieck described his personality, it is to be expected that he would see every inconvenience as directed specifically at him.

It is also worth noting, that Mr. Adams was described as manipulative. Furthermore, the accused has not convinced me, that the psychological impact of these circumstances was any greater for him than anyone else. Finally, the evidence does not establish that Mr. Adams has any peculiar sensitivity to these deprivations.

So as to support the suggestion that the experience was more difficult for him than for others. [ 27 ] In result, none of these complaints, including the food /juice complaints alone or in combination provide even a minimal foundation to conclude that a violation of the accused’s rights under s. 7 or s. 12 of the Charter , occurred. [ 28 ] I make no finding approving or disapproving of these matters.

I simply do not have the evidence nor has the issue been adequately litigated by the appropriate parties to allow me to conduct an inquiry into such practices. [ 29 ] Having said that, however, one of the reasons that an accused who has served time on remand is given an enhanced credit against any sentence imposed is because of the accepted wisdom that remand is harder time physically and emotionally than real jail time.

That is relevant here because I did hear evidence that conditions at the Federal prison in Bowden, Alberta are much better. [ 30 ] Moving to consider the complaints made by the accused relative to health care and mental health care, I find myself coming to the same conclusion. While the lack of intellectual activity is plain, the complaints of inadequate health, dental and psychological care are all unproved. The accused’s evidence is simply insufficient to make out those allegations.

I agree that even small things can be magnified when one has no freedom and therefore what appears trivial to a free person is not so trivial to an inmate. However, I am not convinced that the deprivations that did exist provide any foundation to support the accused’s claim that his s. 7 or s. 12 Rights were breached. 2. The More Major Complaints

a) Strip searches, assault by a guard, and assaults by cleaners [ 31 ] It appears that every inmate upon entry in to the Centre is strip searched. Even when transported to court and returned, all under security, the inmate is strip searched. One has to wonder about the need for such a degrading process in those circumstances. Nevertheless, the issue before me is not the wisdom of the policy, but its impact on Adams.

Again, his experience was generally the same as the experience of every other inmate. [ 32 ] On one occasion, however, September 19, 2014, Adams complains that a strip search was done in a particularly crude and inhumane way. The guards involved denied the event occurred as described by the accused. They deny any crude or any inappropriate behaviour. The dispute is one of many in the evidence. It presents a convenient point to determine credibility. [ 33 ] On the one hand, there is the accused’s evidence which mainly consists of his notes as amplified by his evidence.

There is reason to suspicious of the accused’s notes and evidence. The notes were not all strictly contemporaneous with the events recorded. The accused had a motive to record the events in a way beneficial to himself. In many places, his notes of the behaviour of the guards fail to mention his behaviour or leave his behaviour significantly understated.

The accused’s notes do not include occasions when he was a problem as recorded in the Centre records (case note reports). [ 34 ] For roughly the first eight months of his incarceration, the accused notes, his requests for information and general complaints are relatively few. From August, 2014 to December 2015, the accused generated over 450 requests for information, approximately 200 pages of case report notes and approximately 200 pages of hand written notes.

The accused called inmates to corroborate his version of the events, but it is plain when one examines the video footage presented, the events did not occur as the corroborative witnesses testified. As well, there is little video footage to support the accused’s claims and what there is, is at best, equivocal. There are of course exceptions particularly when it comes to assaults by other inmates upon the accused.

In that regard, one of the assaults he suffered at the hand of the cleaners, I will address later in these reasons. [ 35 ] It is worth remembering, that the onus of proof in this part of the proceeding, is on the accused. He must establish the alleged breaches on a balance of probabilities. The Alberta Court of Appeal has consistently held that there is only one civil standard of proof and it is a balance of probabilities in accordance with F.H. v McDougall, 2008 SCC 53 .

However, the Supreme Court of Canada, in Merck Frosst Canada Ltd, 2012 SCC 3 at paragraph 40 said this... “However as noted in McDougall , ‘context is all important and a judge should not be unmindful, where appropriate, of inherent

probabilities or improbabilities or the seriousness of the allegations or consequences’”. [ 36 ] In my view, in circumstances such as these, where the allegations made by the accused against Centre staff amount to criminal or quasi-criminal behaviours, it becomes necessary to look for some supporting evidence before concluding that the accused’s version of the events is the most likely.

That is not to increase the burden of proof upon the accused but rather to recognize the reality of the type of allegation being made and circumstances in which it is being made. [ 37 ] The sheer number of the accused’s complaints, lawyers’ letter, and requests for information would have reasonably caused even the most naive persons to worry about their behaviours and make sure they did not overstep the bounds of propriety. In that environment, it would seem unlikely that the guards would undertake activity which might result in criminal charges, loss of employment, discipline and the like.

On the other hand, it is not hard to imagine that the guards might very well be frustrated by the accused’s constant stream of complaints to their superiors and the accused’s constant belligerent attitude toward them. In the end, I think the truth about the events described in the blizzard of complaints made by the accused lies somewhere between his version of those events and those of the guards. I accept that the guards did not treat the accused kindly or considerately.

I accept that they were rude and unaccepting on occasion and felt no obligation to help an accused who was on a mission to make them account for every real or imagine slur, comment, slight or imperfection. In my view, the bulk of Mr. Adams’ complaints fall into this category. His treatment at the hand of Centre staff was different, but he brought it upon himself, at least in some measure.

As I said as in R v Molloy, 2016 (unreported), I accept Judge Green’s analysis in the R v Doyle (2015) 4782, that the quality of a Remand prisoners’ incarceration may, where it has been worse than the norm, result in recognition of that fact as an aspect in mitigation when considering a fit and proper sentence. [ 38 ] However, when the behaviour of the authorities crosses the line, from obliviousness to inappropriateness, that becomes context for consideration of the accused’s application for a stay of proceedings.

By context I mean such behaviours could by their number, when added together, support a conclusion that the treatment of the accused was cruel and unusual. In any event, for the most

part I accept what I was told by Centre Staff and the accuracy of the case notes they made at the time events were occurring. [ 39 ] Returning to the strip search, I expect and accept that crude language was used by both the accused and the guards, on September 19 th when the search occurred. I find myself unsure as to what exactly occurred beyond that. I’m inclined to think that the accused’s story is true, but by this point, the bad blood between the accused and Centre staff was such that it is difficult to accept either version as completely accurate.

b) The Assault of the Accused by CPO Young [ 40 ] Contextually, the accused arrived on MAX pod A after being sent there from Unit 5C. That occurred on August 7 th , 2014. The next seven days before he was placed in MAX pod D, because of a perceived suicide risk, are partially documented by the accused. Most of his notes from this period are after the fact. However, I have no doubt, that the environment in MAX A was much more difficult for the accused.

He had come from a protective custody tier in 5C, a fact which the accused says, the guards on MAX A broadcast to the inmates housed there. [ 41 ] I accept that as CPO Young said, rough talk and crude labels are a fact of life in the MAX pods and in my view it is reasonable to conclude that the inmates knew the accused came from 5C, or the sex offender’s tier, and at least some of the guards referred to him as a ‘skinner’ which served to reinforce the implication. [ 42 ] The case notes disclose that Adams was a problem on 5C, and I have no doubt that information was communicated to the guards in the MAX pod.

CPO Young admitted as much. [ 43 ] Of course, MAX pod is reserved for the worst of the inmates in terms of their behaviours or their need for protection. In that environment, asserting control would seem essential to keeping the peace. People locked up for 23 hours a day can be assumed to be difficult. [ 44 ] Therefore, contextually, in the minds of the guards, the accused must have been seen as a problem sex offender with an attitude. The accused did nothing to alter that opinion.

In fact, his behaviours could have been interpreted as reinforcing that reputation. [ 45 ] On August 18 th , 2014, the accused returned to MAX A from MAX D where he had been housed as a suicide risk. He was placed in a cell which is not easily seen from the guards’ station. While in that cell, he said he was beaten by CPO Young. I accept the truth of his evidence. His injuries demonstrated shortly after, support his story, the context supports his story.

The evidence of Young that he went into the cell to check it and was met with an apology and commitment to do what he called ‘doing one’s time” seems totally inconsistent with what had been happening. I expect that CPO Young wanted that commitment from the accused but he used his fists to get it. [ 46 ] The time CPO Young spent in the accused’s cell while doing routine security checks is inconsistent with the apology explanation. Far more time was consumed than the so-called apology would have taken and in my view, importantly, the camera in the cell was covered throughout.

This despite the policy that the cameras which are found covered during a security check, are to be uncovered. Mr. Young’s explanation for “doing one’s time” meant keeping to one’s self, staying out of other’s business and not ratting any one out. That last portion is interesting because it seemed to permeate the thinking of both inmates and guards. Therefore the fact that no one else on duty saw anything may have been significant if not for that pervasive attitude.

c) Assaults by Inmates [ 47 ] There is really no issue that the accused suffered assaults at the hands of other inmates. However, he alleges that on at least three occasions the guards orchestrated things so that the assaults could occur. They did this by housing the accused with someone likely to assault him, leaving him in the TV room with cleaners, who were known to be likely to assault him, and by continuing to employ inmates as cleaners, who were known to be willing to and to have assaulted Adams. All of this occurred in an environment where the

guards had to know that the accused’s fellow inmates knew about his charges. [ 48 ] The Crown argued that inmate behaviours were not under the control of the guards. That is naïve. This is MAX pod, Maximum security. Lock up is 23 hours per day. Of course the guards had control. While there is no evidence the guards allowed these things to occur in the sense that they collectively, or individually, intended such occurrences, it is plain that the guards on duty at the time of the events were not particularly diligent to ensure that the assaults did not occur.

That is not surprising given the nature of the accused’s attitude and the problems he caused for the guards. That does not however justify the apparent lack of effort to keep the accused safe. In coming to this conclusion, I do not accept that there were guards who directly or indirectly encouraged other inmates to assault the accused. There is no evidence beyond the accused’s evidence to suggest that the guards in any way acted intentionally in arranging the assaults that Adams suffered at the hands of other inmates. The accused’s evidence on this subject is based upon hearsay and deductions he has made.

Frankly, I am not convinced as to the accuracy of his observations. Therefore, the assaults experienced by the accused will be taken in to consideration on sentencing, but they do not amount to action by the authorities that would of themselves justify a stay. The attitude of the Centre staff is, however, part of the context. The question remains, whether the context along with the proved instances of misconduct, taken together, undermine the integrity of the justice system, so as to justify a stay.

d) Threats by Centre Staff [ 49 ] I have said that the environment between the accused and Centre staff was one of mutual disrespect, at least relative to certain staff. Plainly maintaining control is crucial to the peace in the institution. Complaints made against the guards and his general attitude, demonstrate that the accused was not completely under their control. It is reasonable to believe that in that situation, threats to deprive the accused of privileges were certain to be used.

It is also hardly surprising that the language of prisons would be used including swearing, belittling and pejorative words and descriptions when making those threats. In my view, both parties engaged in this behaviour. As such, they are jointly responsible for creating a threatening and disrespectful environment. [ 50 ] Having said that, however, however, I do not accept the accused’s complaints that Centre Staff threaten him with physical harm.

e) Cell Tossings and Searches [ 51 ] I do not accept that the accused was particularly targeted or unfairly treated or victimized respecting security searches. The entire stay by the accused in the Centre is marked by repeated requests and failures to keep his cell tidy. That he did not is patent. That the officers were less discriminative in trashing what appeared to be junk is hardly grounds to complain. That the manner of trashing was disrespectful and may have involved comments about the accused accumulating pictures of little girls has not been proved. There is simply no basis to conclude there was anything objectionable in the performance of this admitted duty.

f) False Charges [ 52 ] The accused points to a number of institutional charges brought against him which he said were false and designed to harass him and undermine his general credibility. The evidence suggests that the charges brought were, for the most part, dismissed, for a variety of reasons. There is no evidence that they were false except the accused’s evidence and that leaves me unconvinced. Plainly, charges that are dismissed are not necessarily false.

g) The Psychological Impact of the Accused Seeing Other Inmates Abused and Generally [ 53 ] The accused describes an incident where he says a newly arrived inmate and alleged sex offender was beaten. He said that caused him concern for his safety and that exacerbated his anger and his paranoia. [ 54 ] In my view, the evidence falls short of establishing that the claimed event, occurred. In any event, the evidence of the accused, as to his psychological health and as to his feelings from time to time while incarcerated leaves me unconvinced.

I do accept that the accused was bored, felt like he should plead guilty to escape and had a variety of other feelings one would expect from someone deprived of their freedom. I also accept that being locked up 23 hours a day exacerbated those feelings. However, I accept the evidence of Dr. Rieck that the accused is self-centered and manipulative. His is not the profile of someone likely to have been deeply affected by witnessing the abusive treatment by another. Furthermore, Dr. Rieck’s evidence convinces me that the claimed impact on his mental health generally is a result of his incarceration is not accurate.

h) Arbitrary Placement [ 55 ] I have a great deal of sympathy for the accused’s complaint that he should not have been kept in administrative segregation or the MAX units. Plainly, he repeatedly demanded a transfer, as did his counsel. There was a great deal of correspondence exchanged as to why the accused should or should not be held in the MAX units. In the end, the Centre’s explanation relating to incompatibles, the accused’s demands, the accused’s behaviour and the charges which the accused faced all justified the stance taken by the Centre.

One could say that the Centre seemed to be intentionally uncooperative, but given the strident demand made by the accused and his counsel, and the threats of action made by them, it would be a risk without the prospect of reward to simply continue without careful consideration as to the wisdom of continuing the accused’s placement. Additionally, the weekly segregation review policy was followed. It is designed to address the issue of whether segregation continues to be necessary.

I find nothing to support the claim that the Centre staff conspired in some way to punish the accused by keeping him segregated. [ 56 ] In addition, as I said previously, this is not the case to access the wisdom of segregation. However, the fact that Adams spent

as much time as he did in segregation is a factor in accessing the quality of the time he spent in remand.

i) Discipline in the Units [ 57 ] A good deal of the accused’s notes relate to discipline and quasi-disciplinary measures taken by guards against him. He complains that: • His cell radio reception was manipulated to irritate him; • His intercom was cut off so that he could not communicate with guards; • His exercise time (his time out of his cell) was cut off, cut short or not given at all; • He did not get access to newspapers or got late access at the behest of the guards; • He was not able to access the fresh air room on his exercise time. [ 58 ] I accept that some of these things did occur, although denied.

They were the result of petulance. I have no doubt that the guards were simply irritated by the accused, and therefore retaliated in some of that the accused has described. For instance, on one of the video segments, the accused can be seen repeatedly pushing the buzzer to talk to the guards. It is no surprise that the guards would cut off his intercom to stop that. However, their behaviours aimed at retaliation were unjustified and frankly served not to improve the accused’s behaviour or attitude but achieved the opposite result making him angrier and more frustrated.

In my view, those behaviours made the accused’s time on remand much worse in terms of quality and could additionally, in context, form the foundation for a stay. Having said that, there has to be some way in which guards can control behaviours on a day-to-day basis. It is beyond the scope of this decision to establish guidelines for levels of discipline, due process and review. However, I accept that some form of immediate and intermediate behaviour management must be available to guards and some of what, the accused complained about, has to fall into that category.

j) Cleaners [ 59 ] Typically, there are three shifts of guards on each unit at the Centre. In the MAX pods units, the shifts will determine which inmates are trusted enough to become cleaners. While the accused was at the Centre, cleaners on the MAX units would be involved in cleaning up messes, delivering meals, delivering newspapers and a variety of other menial tasks.

As such the cleaners got special privileges, in the sense that they were generally favourably treated by the guards and of course had much more time out of their cells. [ 60 ] As one can imagine, there were often concerns expressed by inmates respecting the behaviour of cleaners. [ 61 ] However, in the accused’s case there was one cleaner who repeatedly threatened and attacked him and tampered with his meals. Of course, Adams complained and of course, he complained frequently.

In the end, the cleaners were taken off meal service but in my view the staff on MAX pod must be held to account for the fact that despite persistent complaints, they took no action to ensure the accused’s safety or protect him from having his meals tampered with. Again, this lack of action is consistent with the guards utilizing the tools at their disposal to indirectly get back at the accused. I accept what the accused said, for the most part, about his experiences with the cleaners, and particularly Ray-Ray.

It seems to me, that the failure to address his concerns is properly considered by me as context for this stay application. [ 62 ] Having said that, however, I accept that cold meals, lack of timely access to newspapers, and general impoliteness by cleaners is a general fact of life for all remand inmates. Therefore, the experience of the accused in relation to those kinds of issues is not particularly out of the ordinary.

k) Failure to Investigate [ 63 ] The accused complained that his complaints were treated perfunctorily. He complained that investigations were not tape recorded and not conducted with the goal at arriving at the truth. He complained that the word of a guard was always accepted without question and the guards, therefore, knew they could act with impunity. He complained that this attitude was present throughout the Centre, from CPO to the Director.

He complained that his complaints and those of his counsel were not addressed or simply rejected without any real explanation. [ 64 ] I certainly agree that there were instances where responses to complaints were perfunctory. I agree that the accused’s complaints were generally not investigated with the kind of care that we see in police investigations. [ 65 ] However, I do not agree that this is a product of some institutional conspiracy or grand cover up. There is simply no evidence to support that notion. Additionally, this is not an inquiry into best practices and the general processes of the Centre.

In the end, I cannot say that the evidence supports any conclusion that the accused has somehow suffered because of the Centre’s treatment of his complaints. I recognize that the accused’s ability to prove his allegations was to some extent dependent upon the Centre’s investigative methods, the preservation of video recordings and documentation.

However, again, this is not an inquiry into the Centre’s methods, and I simply do not have the evidence that would justify a finding of collusion or inappropriate behaviour designed to make the accused suffer or undermine his ability to establish the foundation for the application he has brought. 3.

Summary

[66] As I have indicate, many of the accused’s complaints are properly rejected as simply as part of the remand experience. Someof his complaints made his particular experience qualitatively more harsh than would ordinarily be expected.

That justifies considerationas a mitigating factor in any sentence I may be called upon to impose. [67] The complaints made by accused on the subjects of: assaults by other inmates, the nonchalance of guards respecting hissafety, and the petty and vindictive disciplinary tactics, in some instances which I have found to be established, do not of themselvesindividually rise to a level which would justify a s. 12 analysis. However, they are collectively the context for such an application.Finally, the assault by CPO Young on the accused does of itself and in context raise s. 12 of the Charter. III. Legal Analysis 1.

Introduction [68] The accused argued that the Standard Minimum Rules for the treatment of prisoners (the Nelson Mandela Rules) and theCorrections Act, RSA 2000 c.29 have a bearing on the circumstances of his detention. As I have said, my view is that the generalpractices of the Remand Centre and whether they comply with the principles espoused in the Standard Minimum Rules are not germaneto this case. This case is about whether the treatment of the accused was unconstitutional, not whether the Remand Centre practices aregenerally wrong, ill-advised, or inappropriate.

Therefore, I foreclosed an exploration of the appropriateness of the various generalpractices of the Remand Centre which of course was the route taken by Justice Marceau in Trang. I did that because the Centre was nota party to this proceeding and because an exploration of general practices and the appropriateness of the same would have changed thisproceeding from one of sentencing this accused in to a wide ranging inquiry into social policy, penal policy and remand practices.Additionally, such an inquiry would have raised all the politics which surround those issues.

In order to forestall that development Iordered the parties to focus on the practices specific to the accused which were out of the ordinary. I accepted the general practices of theRemand Centre as Charter compliant and determined that an inquiry in to appropriateness of any of the Centre’s general practices was,frankly, too remote. [69] The accused also raised s. 7 of the Charter and argues that arbitrariness justifies a finding that s. 7 was breached. One cancertainly imagine the circumstance where the treatment experienced by an accused affected his liberty but did not do so in a cruel andunusual way.

Solitary confinement as an arbitrarily imposed penalty might, for example, fit. [70] At paragraphs 963-965 of Trang, Marceau, J. offered this opinion on the subject: 963 Whether a punishment is arbitrary was listed as a factor in the s. 12 analysis in R. v Smith, (SCC), [1987] 1S.C.R. 1045, but Lamer, J. held that this was not a predominant factor. Gonthier, J. in Goltz dealt with the question of arbitrariness (atpara. 27): An arbitrarily imposed sentence does not necessarily result in gross disproportionality and does not necessarily violate s. 12.

Lamer J. [in Smith] held that arbitrariness is “a minimal factor in thedetermination of whether a punishment or treatment is cruel and unusual” (at p. 1076), because s. 9 and s. 15 of the Charter are theprovisions most suitably tailored to protect against it, and because s. 12 is concerned primarily with the effect of a punishment (at p.1075). 964 Further, Lamer J. in Smith noted (at para. 54): We should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation, and should leaveto the usual sentencing appeal process the task of reviewing the fitness of a sentence.

Section 12 will only be infringed where thesentence is so unfit having regard to the offence and the offender as to be grossly disproportionate. 965 Therefore, there may be arbitrary rules or conditions that are not grossly disproportionate. In keeping with the Supreme Court’sdecision in Malmo-Levine, ss. 7 and 12 must be read in a complementary manner. An arbitrary rule or condition that engages an inmate’slife, liberty or security of the person will only be contrary to s. 7 if that arbitrary rule or condition is grossly disproportionate.

Since thesame test applies, it is not necessary to consider s. 7 where s. 12, the more specific provision, is engaged. In my opinion, s. 7 in thiscontext applies only to decisions related to classifications, placements, and the disciplinary process. [71] However, where the treatment received by the accused and not the punishment he received is the issue it is important toremember that there is no right of appeal for the merely disproportionate. As a result, there may be more room for a s. 7 Charterconsideration even though s. 12 is not engaged.

In this case, it is unnecessary for me to determine that question, because I haveconcluded that the accused has established a violation of his s. 12 Charter rights as I will explain. 2. Violation [72] There has been and I suspect there remains the notion that prisoners have no rights and deserve whatever ill treatment theymay suffer. Indeed that sentiment was expressed by Stockwell Day relatively recently at a time he was angling to lead one of Canada’snational parties. Of course, he was wrong, as are those who harbour the same attitudes and beliefs.

Jails are not lawless environments.Criminals are still people entitled to basic human rights and the Charter extends into that environment the same way it extends into allenvironments. [73] It is also important to remember that when we are considering behaviours in a Remand Centre, we are talking about manypeople who, like the accused here, have not been convicted and therefore are presumed to be innocent. While poor treatment of the guiltyis not justified, it must be even more true that poor treatment of the innocent is not justified. An accusation does not justify punishment

without proof. So jailhouse justice to the extent it occurs is simply vigilantism. When an accused on remand is targeted for abuse, theabuser acts unlawfully and reprehensively. The lynch mob mentality that fuels such abuse is a basic but vile instinct which simply can’tbe tolerated in a just society. During this proceeding, I developed the sense that inmates and some Centre staff felt it was somehow okayto target sex offenders for abuse because they had been charged with sex offences. So using the word “skinner” to describe those personsis more or less acceptable as is picking on or harassing such persons.

Somehow it is seemingly alright to categorize all such inmates aswhipping boys who must accept and expect to be badly treated. These notions are ridiculous and wrong and the leaders of our institutionsneed to do everything in their power to eradicate this reprehensible attitude and the behaviours it encourages. [74] On the other hand we accept, and I think we must, that jails and remand centres are rough places. They are full of people whohave or have had problems. They are full of men who are full of testosterone. The likelihood of conflict is huge.

In that environmentcontrol is maintained by guards and institutional rules. Control is not easily maintained. Therefore violence erupts, events occur whichcause safety concerns and life for both guard and inmate can be difficult and is stressful. Like police, guards have a very difficult job.Both see us at our worse. Both get little respect from the people they arrest or guard. Both have exceedingly stressful and difficult jobs.In those circumstances, we must accept the occasional imperfect behaviour. We cannot expect sainthood from police or guards any morethan we can reasonably expect it from ourselves.

Having said that, however, major transgressions undermine the confidence we have inour police and our guards. Therefore, when we come across that kind of behaviour we must act decisively to root out the behaviour so asto restore the confidence in and confidence of those whom we trust to act correctly. [75] A guard does not get to walk in to a prisoner’s cell and beat him. Whether he has been convicted or is on remand makes nodifference. That is a behaviour we simply cannot condone. It is beyond the pale.

It is highly unusual or at least should be and it is cruel.That is what happened here. [76] In addition, as I have explained, the defendant suffered assaults by other inmates, he was threatened by other inmates, he wasset upon by certain cleaners, and all of that occurred in circumstances where the guards had to be taken to know that such activities hador were likely to occur and did little to protect against such events. [77] Finally, there were instances of petty discipline dished out by the guards which were irritating and retributive. [78] In all those circumstances, it is clear that the treatment of the accused was both unusual and cruel for a large portion of thealmost twenty months he spent in remand.

He has proved a breach of his s. 12 right. 3. Appropriate Remedy [79] As I have said, the accused seeks a stay of proceedings as a remedy, therefore, the analytical structure set out in R v Babos(2014) 2014 SCC 16 , 1 SCR 309 must be applied. [80] To the extent there is a risk that the impugned actions could undermine the integrity of the justice system, the residualcategory is engaged. The parties agree on that. In my view, the impugned actions are plainly offensive to right thinking societal notionsof fair play and decency.

To do nothing in the face of that fact will undermine and will be harmful to the integrity of the justice system. [81] The second stage of the analysis obliges me to consider whether an alternative remedy, short of a stay, will adequatelydisassociate the system from the impugned behaviours. [82] Plainly, the accused is at risk of receiving a lengthy sentence for his offences. The Crown seeks in excess of 14 years beforecredit for time served, therefore, giving the accused substantial additional credit as against prospective sentence is a reasonablepossibility.

On the other hand, putting a number on the credit to be given for the impugned behaviours could actually encourage ratherthan discourage the behaviours. It is possible that Remand Centre employees might consider rough justice a reasonable trade off againstwhatever sentence an accused might ultimately receive. In my view, that possibility is not realistic. As I have said, guards and police arefor the most part up to the challenges of their difficult jobs without resorting to, or condoning violence.

I think we are entitled to assumethat our faith in their attitude is well placed, despite occasional misbehaviour. [83] Generally, of course, sentences must be proportionate or fit. The media often react to sentences, which although fit, seem low.Where a sentence reduced below what would otherwise be fit by reason of the actions of those charged with our trust, the public reactionis likely to be loud and pointed. That is a significant disassociation from the impugned behaviour and likely to resonate with thoseresponsible for hiring and training guards.

To direct a stay would be likely to result in a greater reaction but disassociation is all that isrequired and one does not need to act sensationally in order the achieve that end. The objective is to adequately disassociate the justicesystem from the impugned conduct. Perfect disassociation is not required. Furthermore, this is an exercise in rehabilitating and restoringthe integrity of our justice system. This is not a means to redress the accused for harm he has suffered R v Babos para. 39. [84] In my view, the appropriate remedy here is credit as against sentence.

In this case, the credit for breach of the accused’s s. 12rights, the time he has served and the mitigation he is entitled to because of the quality of the time he served, will be added together andapplied to reduce what would otherwise be a proportionate response to his crimes. 4. The Order for Removal of the Accused for Questioning [85] The Crown was aware that the accused was represented and yet applied without notice to counsel and apparently withoutadvising the presiding Justice of the Court, that the accused was represented.

An order was obtained to remove the accused from theRemand Centre into the custody of the Edmonton Police Service so that the accused could be questioned. At the time a warrant existedfor the accused’s arrest and therefore there was competing authority. In my view, the Crown should have advised counsel of its intentand disclosed the existence of counsel to the presiding justice. However, there is nothing that came out of that failure which impactedtrial fairness and those actions do not impact the residual category analysis in Babos. The behaviour was ill-advised, in my view, but inthis context, it is irrelevant.

[ 86 ] In result, the application for a stay is denied. IV. Sentence [ 87 ] I had been provided with the written submissions on sentence. I will deal with each count individually, but it is appropriate to commence with identifying those circumstances which are generally aggravating across all counts and those factors with are generally mitigating across all counts.

a) Generally Aggravating Circumstances [ 88 ] The conduct in question involved multiple victims. The conduct was spread over a period of approximately two years, although the length of the accused’s criminal behaviour with an individual victim was much briefer, except with respect to the victim of Counts 13 and 17. [ 89 ] The accused committed all of the offences while on bail or release.

While it is true he now has a criminal record, he did not at the time he committed the offences. [ 90 ] In all cases where he was successful in having sexual intercourse with a victim, it was as a result of first, befriending the victim on social media and then taking advantage of that victim’s youth, insecurities and anxieties. He manipulated the victims to his advantage. [ 91 ] It is also aggravating the accused did not use any form of protection when he engaged the victims in sexual intercourse.

b) Generally Neutral Factors [ 92 ] There are some factors which are neutral. By that, I mean neither aggravating nor mitigating. In that category, is consent by the victim: Hajar ( 2016 ABCA 222 ). Frankly, manipulating the victim into consenting could be considered aggravating but it is encompassed in the luring offences which have been proved against the accused. [ 93 ] The fact that the accused was near to the close in age exception is neither aggravating nor mitigating. The youth of the accused is a general mitigating factor.

However, it is his youthfulness that allowed him to find his victims and allow him to speak to them in a way they would expect from someone who professed to be near their age. In some respects, that made the accused more dangerous than the 40 year old pervert described by the Court of Appeal in Hajar (supra). However, my view is that again the luring offences capture this circumstance.

c) Mitigating Circumstances [ 94 ] The accused is 22 years of age. His youth suggests that there is hope for him from a rehabilitative perspective. On the other hand, that prospect is tempered by the accused’s character as determined by Dr. Rieck and the very high risk that he will reoffend, sexually. [ 95 ] The accused did plead guilty to many of the offences but denied some of the aggravating features of some of the offences. As a result, many of the victims of his offences were compelled to testify. Plainly, the administration of justice benefited from his pleas and the admissions he made.

However, the discount usually given for a guilty plea must be tempered here because one of the factors usually considered as part of the discount is the fact that the victim did not have to testify. The accused does appear to have mental health concerns but Conduct Disorder and Oppositional Defiant Disorder, to the extent either exist, are not mitigating. Rather, both are reasons to be concerned about the prospect of rehabilitation. [ 96 ] The accused had spent a total of 611 days in custody on these charges. He is entitled to credit at the rate of 1.5 days for every day he had spent in remand.

In addition, he is entitled to additional credit on the basis that the quality of his time in remand was worse than the norm. As well, as I indicated earlier, he is entitled to credit because of the cruel and unusual treatment he endured while in remand.

d) Applying Reductions for Time Served and Cruel and Unusual Treatment. [ 97 ] Ordinarily, in this jurisdiction the courts would pronounce a fit and proper sentence (a proportionate sentence), based upon the applicable aggravating and mitigating circumstances, and then reduce that sentence to reflect credit for time served. The Courts would then impose the remnant as the actual sentence. That process is employed because of the way records systems record criminal convictions. The problem is that the criminal record of an accused does not usually disclose the fit and proper sentence.

It usually discloses that the accused was sentenced to the remnant. As a result, that accused’s record will show that the accused received a lower effective sentence than he actually did receive. In cases where there is a recidivism risk, the prospect of an application of the jump principle or increasing statutory minimums, for example, that artificial skewing could indirectly benefit the accused in his subsequent contact with the judicial system. The accused is not entitled to such an advantage.

Therefore, where the Crown asks for a different process be utilized so as to grant the accused appropriate credits but not artificially skew the accused’s record, it behooves the Court to accede to that request, if possible. [ 98 ] That is the case here. The Crown asks that I make some consecutive sentences concurrent rather than simply impose a sentence of time served on some offences as a more accurate way of granting the accused the appropriate credits. I will approach the accused’s sentencing in that fashion.

[ 99 ] I have concluded that the accused is entitled to a total credit of six years as against the sentences which I will impose upon him. That credit relates to the quantity of the time he spent on remand, the quality of that period and the cruel and unusual treatment he experienced while incarcerated.

e) Individual Offences [ 100 ] In determining a fit and proper sentence for the offences that I have convicted the accused of committing, I have considered the generally aggravating and mitigating circumstances previously identified in these reasons. In respect of some of the offences I will identify the additional aggravating and mitigating factors germane to that offence, to the extent there are any such factors. 1. The Luring Counts: 3, 6, 10, 17 and 24 [ 101 ] There were 5 convictions for Luring (s. 172.1). Two where the victim was under 18 and three where the victim was under 16.

The Crown suggests a sentence of 2 years on count 17 and sentences of 18 months concurrent on counts 3, 6, 10 and 24. The Defence suggests a sentence of 1 year on count 17 and 1 year concurrent on the remaining counts. [ 102 ] The accused used social media to meet and cultivate a relationship with the victim in Count #17. That relationship quickly became sexual and the compromising photographs of the victim issued from that. The accused played upon the victim’s immaturity and vulnerability to obtain the photographs and with each sexual encounter, he drew her in.

The events which constitute count 13 and 17 are examples of the manipulative behaviour and personality identified by Dr. Rieck. That behaviour continued after the accused was incarcerated. He continued to communicate with “E” professing his love. In my view, he was simply manipulating “E”, in

part in an effort to protect himself from prosecution and in

part in an attempt to make “E” wait for him so that on his release, he would continue to have his way with her. [ 103 ] While communication did not result in pornography, which was then used to manipulate the victim (R v Innes 2008 ABCA 129 ) , the manipulation of “E” by the accused allowed him to achieve his goal of continued sexual relations with her. He used telecommunications to invade her home and to lure her into the repeated instances of sexual interference, each of which was a major sexual interference ( Hajar, supra ) .

In result, I agree with the Crown that a sentence on count 17 of 2 years is warranted. [ 104 ] The other luring offences, Counts 3, 6, 10 and 24 further demonstrate the accused’s manipulative behaviour and the length the accused was prepared to go to convince those vulnerable young women to have sex with him. Each merits a stern response and each could justify a consecutive sentence. However, the Crown seeks concurrent sentences of 18 months for each, concurrent to each other and concurrent to the sentence imposed relative to count #17. I agree.

Anything less simply fails to recognize the heinous nature of the behaviour and the Court of Appeal’s recent direction in Hajar . [ 105 ] In result on Count 17 the accused is sentenced to 2 years in prison. On Counts 3, 6, 10 and 24 he is sentences to 18 months in prison concurrent to each other and concurrent to the sentence imposed on Count 17. 2. The Sexual Interference Count: 13, 27, 30 and 39 [ 106 ] The victim in Count 13 was victimised repeatedly over a long period. The accused used no protection and the victim worried about pregnancy.

The fact that “E” thought she “loved” the accused until she learned about the accused’s other victims, is not in the least mitigating. Rather it epitomizes precisely why the Court of Appeal in Hajar concluded as they did. “E” was 13, vulnerable, immature and impulsive. She was exploited. To suggest that she loved the accused in the way that word is ordinarily understood is akin to saying she consented to or desired the continuing connection and that that is somehow mitigating. She was 13. She cannot consent. (Hajar, supra ). [ 107 ] I agree with the Crown that Count 13 warrants a significant and stern response.

One would certainly be justified in imposing a very long sentence for the repeated instances of major sexual interference. However, the Crown has proposed a sentence of three and a half years. I accept that proposal. [ 108 ] On Counts 38 and 39, Mr. Rowan offered this in his written argument: In respect of M.W. and C. H., these events do not fit squarely in the definition of major sexual assault or interference based on the sexual acts involved. However, in the circumstance, the Crown views these as being equal in seriousness to major sexual interference.

We note the brazen nature of the crimes, committed against two victims simultaneously, with M. incapacitated by alcohol and C. both physically restrained and morally restrained by the threat to have sex with M. (i.e. in this context, to sexually assault her friend) if she left. As such, the Crown suggests that a sentence in same range as a major sexual assault is appropriate in this case, concurrent as between the two complainants but consecutive to all else, 2-1/2 years gaol. [ 109 ] I completely agree.

However, in keeping with my explanation for granting credit for pre-trial custody and s. 12, I would impose a sentence of 30 months on Count 38 and 30 months on Count 39 concurrent and concurrent. [ 110 ] Count 27 is again an instance of major sexual interference. The Crown proposal of a sentence of 30 months is completely appropriate. However, again in order to protect the accuracy of the sentences imposed upon the accused and yet give him credit for the time served and s. 12, I have concluded that a 30 month sentence on this count will be concurrent. 3. The Criminal Harassment Counts: 12 and 21

[ 111 ] The Crown proposes a sentence of 6 months on Count 12, consecutive and 3 months on Count 21 concurrent. Mr. Adams agrees with that proposal. I accept their agreement. 4. Uttering Threats: Count 30 [ 112 ] The Crown proposes a sentence of 3 months consecutive. Mr. Adams agrees, as do I. The sentence on Count 30 is therefore, 3 months consecutive. 5. Distributing Child Pornography: Count 46 [ 113 ] The Crown relies on R v Schultz 2008 ABCA 679 and R v Walsh 2006 Carswell Ont 1427 (CA) . The Crown proposes 18 months consecutive.

The defence suggests a sentence of 12 months consecutive. [ 114 ] There are 2 sets of victims in this offence. The first are the children and adolescents depicted in the images sent to the named victim. The second is the named victim. While it is true that the maker of child pornography was not the accused, his possession of it and use of it victimizes the child depicted.

That, in and of itself, is a serious matter warranting a significant response. [ 115 ] The way in which the accused used the material in order to frighten, threaten and manipulate, R.K. also calls for a significant response. [ 116 ] I certainly agree with Mr. Engel, that these circumstances are not the usual in child pornography cases. However, the threatening use of the material would have itself would have warranted a prison sentence.

That coupled with the element of child pornography suggests a sentence comparable to those imposed in Schultz and Walsh (supra) even though in those cases the images were of the victims. [ 117 ] I agree with Mr. Rowan that the Courts have been perhaps too lenient in child pornography cases. However, in this case, the aggravating features of posting and reporting and multiple images of children are not present. As a result I agree with Mr. Engel that a fit and proper sentence for this offence is 12 months consecutive. However, to reflect the credits to which Mr.

Adams in entitled, I impose a sentence of 12 months concurrent.

f) Totality [ 118 ] But for changing some sentences which would have run consecutively to actually run concurrently because of credits to which the accused was entitled, by my calculations, the accused would have been sentenced to serve 12 years and 3 months in prison. In my view, the common-law totality principle does not apply here. The individual offences and multiple victims over a considerable period make the sentences outlined, fit and proper.

The issue here is whether the resulting proportionate sentences when combined produce an unduly long or harsh sentence. [ 119 ] In this case, there is good reason to look at the luring offences as each individually justifying a consecutive sentence. That the Crown proposed treating 4 of the offences concurrently reflects a concern that the resulting sentence would be crushing. In effect, therefore, the accused has already had what could have been seen as a proportionate penalty reduced because of the resulting harshness. Must more be done?

The accused argues that because of his youth and prospects more should be done. I disagree. While the accused is young, he has demonstrated tenaciousness. He offended over a long period and did not stop even when he had been arrested and charged. He committed Counts 38 and 39 while on release for similar offences and continued to manipulate “E” while he was in the Remand Centre.

As well, his psychological profile and risk of recidivism make him an unlikely candidate for rehabilitation without intensive intervention. [ 120 ] The effective sentence of 12 years 3 months is not disproportionately long or harsh, in my opinion.

g) Sentence

Summary [ 121 ] On Count 17 – 2 years; On Counts 3, 6, 10 and 24 – 18 months, concurrent and concurrent; On Count 13 – 3 ½ years, consecutive; On Counts 27, 38 and 39 – 30 months, concurrent and concurrent; On Count 12 – 6 months, consecutive; On Count 21 – 3 months, concurrent; On Count 30 – 3 months, consecutive; On Count 46 – 12 months, concurrent;

h) Ancillary Orders [ 122 ] Crown requested and Mr. Adams agreed that DNA, s. 109, SOIRA, forfeiture and non-communication orders should be made. They were made at the time sentencing. The Crown also sought an order s. 161. The Crown sought to have the order embrace all

subsections and sought to have the order under subsections (

b) and (

c) extend for the rest of the accused’s life. The accused argued that there is no rational connection between his offences and an order under s. 161(1)(a). He also argued that while restrictions pursuant to s. 161(1), (b), (

c) and (

d) are appropriate, they should not extend beyond 10 years post release. In my view, an order under s. 161(1)(

a) was not warranted in these circumstances. The criminal behaviour involved here did not involve the accused recruiting, surveilling or in any way making such public places less safe for young people. Imposing a restriction on him pursuant to S. 161(1)(

a) would amount to a unnecessary restriction of his freedom without a rational connection to his criminal behaviour. [ 123 ] I was also of the view that lifetime orders and not necessary in these circumstances. Mr. Adams may not ultimately change his attitude and his approach to young women and women in general. If he does not, then as Dr. Rieck said his risk of re-offending will remain high. If that is the case, one would expect Mr. Adams to re-offend well within ten years of his release. If however, he does not re- offend within that 10 year period then one may have reasonable confidence that he has changed for the better and will not re-offend. [ 124 ] In so far as s. 161(1)(

b) is concerned, I did order Mr. Adams’ release in advance of this trial and provided that he may be employed in places where children under 16 may be found, but he could not be in a position of trust or authority, either as a worker or a volunteer where children under 16 may be found. I have concluded that is what the order of prohibition under s. 161(1)(

b) should provide. He may be employed, work in or volunteer in places where females under the age of 16 may be found or frequent, but he may not be in a position of trust or authority relative to any such person in any such place for a period of 10 years. [ 125 ] As to s. 161(1)(

c) while the prohibition was appropriate, an exception was necessary to reflect the reality of any employment or work the accused may obtain. Therefore, the prohibition ordered was that he may not communicate or have contact by any means with a female under the age of 16 years except in the course of his work or when the female is in the presence of an adult relation or where the female is in the presence of two adults, not including the accused.

I ordered that prohibition to extend for a period of 10 years post release. [ 126 ] As to s. 161(1)(d), the Crown suggested a two stage order which extended for 10 years. The order would relate to the period when Mr. Adams is on parole and the rest of the 10 years while he is no longer on parole. In my view, the Crown’s proposal was a sound one. It struck a reasonable balance between protecting the public and yet preserving the accused’s freedom. It recognized the nature of the accused’s criminal behaviour and the fact that we are more and more dependent upon electronic information and communication.

Therefore, the prohibition order under s. 161(1)(

d) was as follows: i. While on parole, the Offender may only use the internet or other digital network on a device approved by his parole supervisor and in a manner and in circumstances subject to any restrictions or conditions imposed by that supervisor. He must allow his supervisor or any peace officer to examine any approved device on demand and must either not password protect the device or provide the password to his supervisor or a peace officer on demand.

He shall not install or permit to be installed on the approved device any programs or services for anonymous use of the internet, encryption of files or for the overwriting/secure deletion of files or drive to prevent forensic examination. ii. If not subject to parole, the Offender may use the internet but shall not install or permit to be installed on any device in his possession any programs of services for anonymous use of the internet, encryption of files or for the overwriting/secure deletion of files or drives to prevent forensic examination. The Offender shall not use free wireless internet services.

Any internet service used by him must be in his own name or provided by his employer. If the Offender password protects any internet device, computer or electronic storage device or any file thereon, he shall provide the password to a peace officer on demand. Dated at the City of Edmonton, Alberta this 16 th day of November, 2016. T.D. Clackson J.C.Q.B.A. Appearances: James Rowan for the Crown Thomas Engel for the Accused

Appendix A 1. Agreed Statement of Facts (the content of the material appended has been changed to protect the privacy of the persons mentioned) Introduction 1 . The Accused, David Spencer Adams (“Adams” or “the Accused”), was born April 28, 1994. He accordingly turned 18 on April 28, 2012. 2 . For purposes of

section 150.1 of the Criminal Code of Canada , someone within five years of the Accused’s age is therefore someone born not later than April 28, 1999. 3 . The Complainants in this case are: a . Complainant “A” b . Complainant “B” c . Complainant “C” d . Complainant “D” e . Complainant “E” f . Complainant “F” g . Complainant “G” h . Complainant “H” i . Complainant “I” j . Complainant “J” k . Complainant “K” l . Complainant “L” 4 . Of these Complainants, Complainant “J”, Complainant “K”, Complainant “F” and Complainant “E” were born after April 28, 1999 and are not within five years of age of Mr.

Adams, and it is admitted that s.150.1(2.1) does not apply to them. 5 . While Complainant “D” was born within five years of David Adams, she had not attained the age of 14 at all material times and therefore s.150.1(2.1) does not apply to her. For clarity, it is admitted that she is not within two years of David Adams in age. 6 . The primary police agency investigating the sexual assault complaints made against the Accused was the Edmonton Police Service (EPS), and in particular the EPS’s Child Protection Section, which works closely with the Zebra Child Protection Centre (“Zebra”).

Zebra offers a child-friendly environment for conducting interviews with child witnesses and provides support services for those witnesses. 7 . In respect of the allegations of luring and child pornography offences, the primary investigating agency was the Northern Alberta Integrated Internet Child Exploitation Unit (“NAICE” or “Northern ICE”), part of the Alberta Law Enforcement Response Team (ALERT). Northern ICE is a joint-force command comprised of RCMP officers and members of the EPS. 8 .

The Internet is a worldwide network connecting computers (including many handheld telecommunications devices such as smartphones and tablets), and allows for the exchange of data and information including photographs and video. 9 . An internet protocol address (“IP Address”) is a number assigned by a subscriber’s Internet Service Provider (such as Shaw or Telus) to a device so that it can access the internet. It is used to identify the particular device to allow other computers on the internet to communicate with it. It is in the form of four sets of numbers, separated by periods (e.g. 216.45.120.5). 10 .

Each internet service provider (“ISP”) has a large number of IP addresses reserved for it that it can give to individual subscribers as needed. The IP address for a given device may change from time to time, but it may also stay the same for months or years, depending on circumstances and the way the ISP allocates addresses. 11 . Most ISPs keep records of what IP address is assigned to what customer, at what time. 12 . At any given time, no two devices on the Internet can have the same IP address. 13 .

The National Center for Missing and Exploited Children (“NCMEC”) is a US based organization that acts as a clearinghouse for abuse reports from internet service providers in the United States. US law imposes obligations on internet service providers regarding the mandatory reporting of child abuse and exploitation occurring online and NCMEC is designated as the agency to whom reports should be directed. NCMEC determines, by means of public search tools, the apparent geographic location of the IP address for the person being reported. 14 .

The Canadian counterpart to NCMEC is the National Child Exploitation Coordination Centre (“NCECC”), operated by the RCMP. 15 . When NCMEC determines that the IP address of the suspect in a report to them belongs to a Canadian ISP, they refer the complaint to NCECC. NCECC then uses publicly available open source search tools to determine what Province the subscriber to the IP likely resides in and forwards the complaint to the relevant policing agency. 16 .

Meetme.com (“Meetme”) is a social network operated out of the United States of America with more than a million users, which previously operated under the title “MyYearbook”.It operates a website but primarily is accessed by smartphone app and allows users to text each other and to exchange photos, video and links to documents. 17 . Tagged.com (“Tagged”) is a social network operated out of the United States of America with millions of users. It is a website and accessible via smartphone app and allows users to text each other and to exchange photos, video and links to documents.’ 18 .

Facebook.com (“Facebook”) is a social network operated out of the United States of America with over a billion users. It is accessible as a website or via smartphone app and allows users to text each other, to exchange photos, video and links to

documents, and to create a profile and “wall” where things can be posted for any of the people on their “friend list” to see, or where all facebook users can see it, depending on the settings they have chosen. 19 . Each of Meetme, Tagged and Facebook are required by US law to, and do, report apparent child pornography and child exploitation incidents to NCMEC. 20 . KIK Messenger is a messaging service operated out of Waterloo, ON that allows the exchange of text messages over the internet. It is primarily accessed by the use of an application for smartphones and tablet computers. 21 .

Skype is an internet service that allows telephone calls to be made via the internet, as well as sending live video between users and, more basically, the exchange of text messages. Investigative Background – NCMEC Reports 22 . In this case, a total of 39 com

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