R v Massey, 2021 ABQB 146

Court of Queen’s Bench of Alberta Citation: R v Massey, 2021 ABQB 146 Date: 20210225 Docket: 170701650Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Steven Charles Massey Accused _______________________________________________________ Reasons for Sentence of the Honourable Mr. Justice B.R. Burrows ________________________________________________________ [1] I found Steven Charles Massey guilty of two offences following trial.

The offences were that he did: - make, print, publish or possess for the purpose of publishing, child pornography contrary to CC s 163.1(2) - transmit, make available, distribute, sell, import, export, or possess for the purposes of transmission, making available,distribution, sale or exportation, child pornography, contrary to CC s 163.1(3). [2] Mr. Massey had also been charged with child luring contrary to CC s 172(1)(b).

I found him not guilty of that offence andentered an acquittal. [3] My reasons for those determinations are at 2020 ABQB 518. [4] At the conclusion of those reasons I invited counsel to address the application of R v Kienapple (SCC),[1975] 1 SCR 729 in this case. The Crown proposed that a conviction should be entered in respect of the offence under CC s 163.1(2)and that the CC s 163.1(3) offence should be conditionally stayed. Mr. Massey’s counsel and I agreed with that proposal. I made theappropriate directions. [5] The remaining issue, therefore, is as to the determination of a fit sentence in respect of Mr.

Massey’s conviction for theoffence created by CC s 163.1(2). Circumstances of Mr. Massey’s Offence

[ 6 ] As detailed in my reasons following the trial, Mr. Massey communicated by text messaging over the course of several months in 2017 with a police officer in Texas who was pretending to be a 13-year-old girl. The evidence at trial did not reveal how the series of communications was initiated or exactly when it started. The evidence at trial consisted of 1232 text messages over approximately two months. [ 7 ] I found that the content of Mr. Massey’s contributions in two text “conversations”, one on April 26, 2017 and one on May 28, 2017, were within the definition of “child pornography” in CC s 163.1(1).

In both cases the “child pornography” consisted of words alone – not images nor video nor audio recordings. The actual words which I found to be within the definition were: [the words in square brackets were not in Mr. Massey’s texts.

They provide something of the context in which he texted the words he did.] Conversation of April 26, 2017: - Because your young, cute, sweet, and I bet you would feel good in my arms [In response to: Why would you want me?] - Yes I mean, just thought thought [of having a girl like you] makes me very happy, but you would have to want to be with an older guy of course. - Oh really, I hope you stay that way [a virgin]. I’d love to be your first. - Yea but that’s a good thing [lack of sexual experience].

I mean we could explore things together and we could go slow and I can help you with anything you are curious about - No not at all, honestly, I would love it. [that she would be curious about everything – it would not be annoying]. To be the guy who gets to show you things would be amazing And I mean it looks like you have a very nice body and I would love to be first and kinky guy that gets to explore it. - Me to, I really want this to happen [being her “first”] - I really can’t wait to just hold you tight, how tall are you? - That’s amazing [that she is 5’2”] Ugh I want you to bad.

Can I see another picture of you - I just want to kiss that face [responding to a selfie of a female person’s face] - Oh wow, well I was hoping to be the first to do that but it’s ok, there is still lots we can do [responding to the female person saying that she had engaged in sexual activity with another male] - [Responding to “like what”] Well I mean having sex of course, trying new things, using toys and playing games. Experimenting is fund but I don’t want to scare you away lol, we goota start with basic stuff and go on from there.

Is there anything you have seen and really want to try? - Well something like playing with your bum, or like being tied up and blind folded, some people like it rough I mean there is a lot Hun - Yea, like fingering it, or using toys even anal sex, a lot of people really like it. - [Responding to “have you done that”] I have yes once and yea I mean just gotta go really slow and be careful the first few times - I mean baby your little the first time we have sex it will hurt to.

But I’ll be gentle with you I want you to really like it And no I have never been with anyone like you - Yes I promise, and no I have never been with anyone your age, 15 right? [To which the police officer responded “13”] Conversation of May 28, 2017 - OK wow, so young although I would really love to have sex with you - I really need to be your first - Have you had much inside you?

Like will you bleed when we do it - [In response to “You bleed?] Yes, there is a little piece of skin that tears - If you haven’t yet then you will - [In response to “Is that why it hurts the first time.”] Yes and that’s why they call it popping your cherry. it’s because it bleeds Have you put anything inside you before? [In response to just fingers] Ok yours? And you obviously didn’t bleed? [ 8 ] The conversational context in which these statements by Mr. Massey appear is set out in its entirety in my trial Reasons for Judgment - 2020 ABQB 518 . [ 9 ] In finding Mr.

Massey guilty of the offence created by s 163.1(2) I held that the above quoted text messages were within the CC definition of child pornography. I said: In my view, in these parts of the exchanges between himself and Emma [the name the police officer gave to the fictional 13- year-old

girl], Mr. Massey was saying that sexual activity of the type he described, between himself, an adult, and Emma, a child, could and should be pursued. Such criminal activity would be a criminal offence. Mr. Massey actively encouraged criminal sexual activity between an adult, himself, and a child (albeit a fictional child) Emma. It does not matter in this context whether Mr. Massey thought Emma was a child or an adult. The messages he composed were about sexual activity with a child – the child Emma was pretending to be. Further I am satisfied beyond a reasonable doubt that Mr.

Massey intentionally composed this written material, the texts in which he described sexual activity between himself, an adult, and Emma, a child, albeit a fictional child; that he knew that was the nature of the writing he composed; and that he intended to send that writing to someone else, the person identified as Emma. Mr. Massey’s Circumstances [ 10 ] Mr. Massey is now 36 years old. He was 32 years old at the time of the offence. [ 11 ] At the time of the offence, Mr.

Massey had no criminal record. [ 12 ] In addition to counsel’s submissions as to his circumstances, I have a Pre-Sentence Report and an affidavit sworn by Mr. Massey to provide facts relevant to the determination of a fit sentence. The Crown did not challenge any of the statements made by Mr. Massey in the affidavit. [ 13 ] Mr. Massey expressed, both to the author of the PSR and to the Court at the sentencing hearing, that he regrets having sent the offending text messages, that he is ashamed of his conduct, and that he apologizes without reservation. [ 14 ] Mr. Massey’s childhood was not without difficulty.

His parents separated when he was about two years old. His mother decided that he should live with his father while his brother, who is two years his elder, should stay with her. He now has no relationship with his mother or his brother or his younger half siblings. He was raised by his father who, he believes, did the best he could. His father provided the essentials, and Mr. Massey felt loved by his father as a child, but does not think he got proper guidance nor supervision in his upbringing. He was never emotionally, physically or sexually abused as a child. [ 15 ] Mr.

Massey graduated from high school in Ontario in 2005. He immediately joined the military. I understood that he left the military at one point and then rejoined. Mr. Massey was a member of the military at the time of his offence. He was stationed in Wainwright, Alberta. He was released from the military as a result of being charged with the offences that were dealt with at trial. It was a “2A medical release following on a diagnosis of Adjustment Disorder.” [ 16 ] Mr. Massey was unemployed for some time after this medical release.

Finding employment was hindered by his bail conditions which forbade his possession or use of any device that could access the internet. I will detail the effect of the bail conditions and their

interpretation by his bail supervisors further below. [ 17 ] In the spring of 2020 Mr. Massey was able to find employment with the Veterans Association Food Bank in Calgary after first volunteering with that organization. A letter dated June 10, 2020 and written by the Operations Manager of that organization was entered at the sentencing hearing. She advised that Mr. Massey was careful to ensure that she was aware of the charges he was facing at the time. She described him as “quiet, scared and lost” at the time she met him.

She wrote that providing him with employment has taken him “from a place of despair to having a more positive outlook for his future.” She also wrote: Our mission statement is clearly, Veterans Helping Veterans. Steve is very committed to this cause and has demonstrated this through helping other Veterans overcome some very challenging issues, even though he is facing some difficult matters of his own. I have hired Steve to organize and operate the upcoming Thrift Store and to help in the food bank.

He is dependable, motivated, responsible, honest, and courteous, and by far the most dedicated person that I have come across in quite sometime. He has made a significant contribution to this charity during his short time here. Steve is guaranteed to have employment with us regardless of the outcome of this situation. [ 18 ] Mr. Massey’s employment with that organization after the letter quoted above was written continued with interruptions caused by the strict

interpretation of his bail conditions by his bail supervisors and by the bail condition forbidding his use of the internet. Eventually the organization was forced to let him go because of those restrictions. But he understands that the guarantee of employment contained in the Operations Manager’s letter continues and he will be able to take up the employment again when he is free of the bail conditions. His understanding is confirmed in the PSR. [ 19 ] Mr. Massey was married to a woman, also a member of the military, whom he met while both were deployed in Afghanistan.

They were married for two years before their marriage failed. [ 20 ] For the last two years Mr. Massey has been in a relationship with a woman, Eliza, who lives in Calgary. His bail conditions and the strict enforcement of them by his bail supervisors have prevented Eliza and him from living together in Calgary. He is living with his father in very cramped conditions near Edmonton. Eliza advised the author of the PSR that, ultimately, she and Mr.

Massey would like to be married. [ 21 ] Both Eliza and the Veterans Association Food Bank Operations Manager advised the author of the PSR that the stigma attached to the offences with which he was charged and the resulting damage to his self esteem and sense of self worth have been very significant. His mental health has been negatively affected. A now retired psychologist who worked with Mr. Massey when he was in the military advised the PSR author that he, the psychologist, was dissatisfied with the treatment Mr. Massey received from the military after he was charged. “According to [the psychologist] [Mr.

Massey] was mistreated by military members up until his discharged and was prevented from receiving a proper mental health assessment at the time.” Bail conditions, their enforcement, and media attention

[ 22 ] As mentioned, Mr. Massey swore and filed an affidavit in connection with this sentencing. Crown counsel confirmed that the Crown does not challenge its contents. [ 23 ] In the affidavit Mr. Massey describes the effects of bail conditions imposed on him on June 22, 2017. These conditions have been in force for three years and eight months. He also described the consequences for him of the publicity that his charges have attracted. [ 24 ] At the time of his release from custody Mr. Massey was living in Wainwright. The day after his release articles appeared in local and regional media.

Many articles included his photograph. His military colleagues and friends were informed of his charges. He was recognized and felt vilified by his community. His truck and motorcycle were vandalized. He realised he could not stay in Wainwright. He left that community. [ 25 ] To comply with a bail condition that forbade his possession of any device that could access the internet, he attempted to buy a cell phone that had its data function blocked. He was also given a tablet that was capable of accessing the internet, though he did not have a data plan for it.

He was charged with breaches of his bail conditions. [ 26 ] He was told that his girlfriend was very upset about his charges and was advised to “give her some time”. After two weeks he left a note on her windshield which said, “I’m sorry for everything and I am not the man you read about in the paper.” He was charged with criminal harassment. He was arrested and spent 21 days in remand custody. [ 27 ] On August 16, 2017 two breach charges were dropped and he was released on bail.

His court appearance inspired another series of news articles about him and the charges he then faced. [ 28 ] A plea bargain arrangement resulted in Mr. Massey pleading guilty in January 2018 to “harassing communication” in place of “criminal harassment”. His sentence was 18 months probation. In June 2018 he pleaded guilty to one charge of breach of bail conditions, in relation to his possession of an internet capable device, and was sentenced to time served. [ 29 ] The bail conditions and media attention also had negative practical consequences on his living and employment arrangements and on his mental health.

These are detailed in his affidavit: - When he felt obliged to move away from Wainwright he lived in a small camper trailer without washroom facilities outside the town of Wainwright.

When winter came he moved the trailer to a Walmart parking lot in another eastern Alberta town so he could use the washroom in the Walmart. - He joined a gym (physical fitness is very important to him) but had to give up using the gym when the staff became aware of the charges against him. - He sought treatment for his mental health concerns in the fall of 2017 at the mental health hospital in Ponoka where he stayed for two weeks. - After leaving that hospital and resuming his military duties, he experienced suicidal thoughts, feelings of isolation and depression and was sent to Wainwright hospital for further assessment. - After he met Eliza, his bail supervisor approved a basement suite in Calgary as a residence for him.

But he was assigned to a different bail supervisor who withdrew that approval. He was told that the reason was that the people who lived upstairs had a granddaughter under 16 who would occasionally come to visit her grandparents. - A “duty” bail supervisor approved another residence in Calgary.

But when his assigned bail supervisor learned of the approval, after he had moved into the residence, the approval was withdrawn. - As a result of being unable to find accommodation in Calgary acceptable to his bail supervisor, he went to live with his father in a one bedroom and cramped apartment near Edmonton. - He lived through the winter of 2019 – 2020 in his trailer, near Calgary, so he could be near Eliza. - He found jobs doing overnight snow removal or landscaping but his bail supervisor was of the view that those jobs were not appropriate because he might come into contact with children.

He was not allowed to take up that employment. - When he volunteered at the Veterans Association Food Bank he was advised by his bail supervisor that doing volunteer work was not allowed under his bail conditions Interventions by the operations manger of the food bank were unsuccessful. Upon a further change to his bail supervisor this work was approved.

By this time, he was living near Edmonton and commuting to his work in Calgary. - He had to stop working with the Veterans Association Food Bank when he was unable to perform the duties his work required because of the bail condition that forbade his accessing the internet. - When he was convicted in September 2020 of two of the three offences charged against him, and again when his original sentencing date in January 2021 was rescheduled at Crown request because of a change of Crown counsel, he had to endure further media stories published about him and his offences with his photograph.

The Maximum and Minimum Sentence for the Offence [ 30 ] CC s 163.1(2) provides that a person who commits the crime therein described “is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of one year.” [ 31 ] Mr. Massey gave notice that he challenged the constitutionality of the minimum punishment feature of the section. The

Crown responded to this challenge as follows: The Crown notes the one year mandatory minimum for making child pornography was held to be unconstitutional by Justice Gates in R v Esposito , 2020 ABQB 165 and acknowledges the one year mandatory minimum does not apply in this case. [ 32 ] I take this as a concession on the part of the Crown that the mandatory minimum is unconstitutional. Indeed, as will appear, the Crown’s position is that a fit sentence in this case is 9 to 12 months – a range, most of which is inconsistent with the mandatory minimum set out in the section.

The issue of the constitutionality of the mandatory minimum sentence was not explored further. [ 33 ] The maximum sentence of 14 years also has significance in this case even though the Crown acknowledges that a sentence of far less than that is fit. Until 2015 the maximum possible sentence for this offence was 10 years. The

section was amended in 2015 to raise the maximum to 14 years. This had the effect of eliminating the possibility of a conditional sentence order for a person convicted of this offence – CC s 742.1(

c) provides that a conditional sentence is not available where the maximum term of imprisonment is 14 years or life. R v Friesen [ 34 ] The Crown referenced R v Friesen 2020 SCC 9 , where the Supreme Court of Canada recently addressed sentencing for sexual offences against children. The decision contains several important directions to judges tasked with determining a fit sentence in such a case. I have examined the decision to understand how the Court’s directions apply in the somewhat unique circumstances of Mr.

Massey’s case. [ 35 ] In Friesen , the accused plead guilty to sexual interference with a four-year-old child. At trial he was sentenced to six years incarceration. This was reduced to four and a half years on appeal. The Supreme Court restored the trial judge’s sentence. [ 36 ] In the unanimous decision, authored by Wager C.J. and Rowe J., the Supreme Court said: (para 43): This case presents an opportunity for this Court to consider the sentencing principles for sexual offences against children. Sentencing is one of the most important and “most delicate stages of the criminal justice process”.

It is at this stage that the judge must weight the wrongfulness of the sexual violence and the harm that it causes and give effect to both in imposing a sentence. It is important for this Court to provide guidance so that sentencing judges impose sentences that accurately reflect the nature of sexual offences against children and their impact on the victim. To do otherwise would improperly permit myths that Parliament and this Court have striven to drive out of the law of evidence and substantive criminal law to simply re-emerge at the sentencing stage.

This result could undermine the credibility of the criminal justice system in the eyes of victims, their families, caregivers, and communities, and the public at large. [ References to authorities omitted ] [ 37 ] The Court observed that though it was specifically dealing with a case involving the offence of sexual interference, and though the guidance it provided was focused on sentencing for that offence and closely related offences, the principles it outlined are also relevant to sentencing for other sexual offences against children which the Court listed in a footnote.

Making child pornography was one of the offences so listed. [ 38 ] The Court noted that: [para 45] . . . the criminal law in general and sentencing law specifically are important mechanisms that Parliament has chosen to employ to protect children from sexual violence, to hold perpetrators accountable, and to communicate the wrongfulness of sexual violence against children.

It is our duty to give Parliament’s sentencing initiatives their full effect. [ 39 ] The Court described in detail the increased prevalence of sexual violence against children in Canadian society (para 46) and how new technologies, in particular the internet and social media, have facilitated sexual violence against children (para 47). [ 40 ] The Court specifically instructed judges who are called on to determine fit sentences for these crimes.

It said: (para 50) To effectively respond to sexual violence against children, sentencing judges need to properly understand the wrongfulness of sexual offences against children and the profound harm that they cause .

Getting the wrongfulness and harmfulness right is important . . . . [F]ailure to recognize or appreciate the interests that the legislative scheme of offences protects can result in unreasonable underestimations of the gravity of the offence. ( emphasis added) [ 41 ] The Court specifically spoke to the harm arising from child pornography: [para 51] . . . the production of child pornography traumatizes children and violates their autonomy and dignity by treating them as sexual objects, causing harm that may stay with them for their entire lifetime.

This observation appears to me to apply mainly to child pornography the production of which actually involves a real child. The observation would be significantly less applicable to child pornography, like that made by Mr. Massey, which did not in anyway, either in its making or in its publication, involve a real child. [ 42 ] The Court observed that the legislative scheme in relation to sexual offences against children which Parliament adopted in 1986 shifted the focus from the sexual propriety of an offender’s conduct, to the wrongful interference with the sexual integrity caused by that conduct (para 55).

The Court said: [para 56] This emphasis on personal autonomy, bodily integrity, sexual integrity, dignity, and equality requires courts to focus their attention on emotional and psychological harm, not simply physical harm. Again, this observation appears to be of limited applicability to Mr. Massey’s crime which did not involve actual violation of anyone’s

personal autonomy, bodily integrity, sexual integrity, dignity, or equality, and which did not involve emotional, psychological or physical harm to anyone. [ 43 ] The Court went on to discuss the harm sexual violence against children causes to their relationships with their families and caregivers, the harm it causes to those family members and caregivers themselves and to the communities in which the children live, the damage it does to the fundamental Canadian value of protection of children, its disproportionate impact on girls, its link to violence against women, its disproportionate impact on indigenous children and children in vulnerable groups such as children in government care and LBGT2Q+ youth. [ 44 ] In all of this discussion the Court did not address if or how the harms it identified can flow from a crime of the nature committed by Mr.

Massey. The Court’s focus was clearly on sexual offences against children involving a real live child victim. Though the Court included the crime of making child pornography in the list of offences it was speaking to, and while there can certainly be instances of that crime where there is a real live child victim, as where the pornography consists of a photographs or videos of a child being sexually abused, it is difficult to see how the harms so exhaustively discussed in Friesen arise in a case, such as Mr.

Massey’s, where the child pornography consists of a few text messages describing, advocating and counselling criminal sexual conduct sent to a police officer pretending, possibly unsuccessfully, to be a child. [ 45 ] Following its discussion of the harms that are caused by offenders who commit sexual offences against children, the Court went on to provide guidance “on how courts should give effect to the gravity of sexual offences against children”.

The Court said: (para 76) Specifically, courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and, (3) the actual harm that children suffer as a result of these offences. [ 46 ] The Court’s detailed discussion of these three factors is clearly directed to cases where there is an actual real child victim. Again, therefore, it is of limited assistance in Mr.

Massey’s case. [ 47 ] In its discussion of the second factor, potential harm, the court observed: (para 79) However, the potential that these forms of harm will materialize is always present whenever there is physical interference of a sexual nature with a child and can be present even in sexual offences against children that do not require or involve physical interference. ( emphasis added ) [ 48 ] The emphasised observation is explained in paragraph 82 where the Court said: Even in child luring cases where all interactions occur online, the offender’s conduct can constitute a form of psychological sexual violence that has the potential to cause serious harm.

Again, the Court is discussing real harm albeit harm caused by virtual, not physical contact, between the accused and a real child. [ 49 ] There is, however, a passage in this part of the decision which, I think, is of significance to my present task. The Court discussed “proportionality without a specific victim” – the assessment of an offender’s degree of responsibility where there is no real victim of the offence.

Specifically, the Court said: (para 93) Courts must give effect to the moral culpability of the offender in sentencing even where the facts giving rise to the conviction involve a police sting operation rather than a child victim. Child luring may be committed in two ways: the offender is actually communicating with an underage person, or the offender believes the person he is communicating with is under age even though this is not in fact the case.

In particular, the offence of child luring is often prosecuted through sting operations: an undercover officer poses online as a child and waits for an offender to initiate communication with a sexual purpose. Although the absence of a specific victim is relevant, it should not be overemphasized in arriving at a fit sentence. The accused can take no credit for this factor. As such, it does not detract from the degree of responsibility of the offender for that offence.

After all, to be convicted of child luring in the context of a police sting operation where the person the offender was communicating with was not in fact under age, the offender both must have intentionally communicated with a person who the offender believed to be under age and must have had the specific intent to facilitate the commission of a sexual or other specified offence against that person. ( emphasis added ) [ 50 ] Though it is apparent that, in this passage, the Court is focused on the offence of child luring, I understand the Court, particularly the emphasised portion of the passage, to be speaking to the assessment of the wrongfulness, or, in other words, the blameworthiness, of the accused’s criminal conduct when the person with whom the accused is communicating is a police officer pretending to be a child or an adult engaged in the conversation as the accused understands and intends.

This is Mr. Massey’s case. [ 51 ] In such a situation the blameworthiness of the conduct, the accused’s degree of responsibility, is not reduced. But the overall gravity of the offence may be reduced – “. . . the absence of a victim is relevant . . .” – though that factor “. . . should not be overemphasized in arriving at a fit sentence.” I understand this to mean that some, albeit limited, significance is to be attached, in the overall assessment of the gravity of the offence, to the fact that no harm to a real person actually resulted from the accused’s conduct.

Similarly some, albeit limited, significance would attach, in the overall assessment of the gravity of the offence, to the fact that the actual adult who the accused “counselled”, or to whom he “advocated” criminal sexual activity with a child, was in fact not capable, because they were a law enforcement officer, of being corrupted by the counselling or advocacy. [ 52 ] I take this passage to be instructing me to take particular care not to overemphasize the fact that Mr. Massey’s criminal conduct in fact had no direct or real victim – a factor which certainly was not in Mr.

Massey’s mind when he committed his offence – when assessing Mr. Massey’s specific blameworthiness. [ 53 ] The Court next discusses the significance of Parliament having increased the maximum sentence applicable to most sexual offences against children in 2015. This, the Court observed, should be seen as Parliament recognizing “the profound harm that sexual

offences against children cause.” (para 95) It reflects Parliament’s view of the objective gravity of these offences – that is, the seriousness of the offence regardless of the specific circumstances of its commission in the case before the court. (para 96). The Court said: (para 100) To respect Parliament’s decision to increase maximum sentences, courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences . . .

Sentencing judges and appellate courts need to give effect to Parliament’s clear and repeated signals to increase sentences imposed for these offences. [ 54 ] The Court then discussed Parliament’s direction in CC s 718.01 that in a case involving the abuse of a person under the age of eighteen years, the sentencing court is to give primary consideration to the objectives of denunciation and deterrence of such conduct. In its discussion of this point, the question of whether CC s 718.01 applies to a case, such as Mr. Massey’s, where there was no actual abuse of a child, is not addressed.

However, the Court states: (para 105) Parliament’s choice to prioritize denunciation and deterrence for sexual offences against children is a reasoned response to the wrongfulness of these offences and the serious harm they cause. [ 55 ] I read this as saying that Parliament’s instruction in CC s 718.01 applies to the sentencing judge’s accounting for both the wrongfulness (blameworthiness) of the accused’s offence and for the actual harm caused by it. I conclude that I am to give primacy to denunciation and deterrence in determining a fit sentence in Mr.

Massey’s case, even though it caused no actual harm to a real person.

I recognize that it is not open to me in this case, “to elevate other sentencing objectives to an equal or higher priority” (para 104) though I retain “discretion to accord significant weight to other factors (including rehabilitation . . . )” in determining a fit sentence in accordance with overall proportionality. [ 56 ] The Court then discussed three practical consequences that flow from its direction to sentencing judges to recognize the significance of Parliament’s increasing maximum sentences for sexual offences against children: Upward departure from prior precedents and sentencing ranges may well be required to impose a proportionate sentence; Sexual offences against children should generally be punished more severely than sexual offences against adults; and Sexual interference with a child should not be treated as less serious than sexual assault of a child.

The Court discussed each of these points in detail. I have reflected on this discussion in my determination of a fit sentence for Mr. Massey. [ 57 ] In the remainder of the decision (paras 121 to 183) the Court discussed matters of little or no application to Mr. Massey’s case. In my view, no principles which I should apply in this case emerge from that discussion. [ 58 ] In

summary, as I understand it, Friesen instructs me to apply the following principles in this case: 1. Crafting a fit sentence for Mr. Massey’s offence involves weighing two main factors: (1) the wrongfulness of the offence and (2) the actual harm caused by the offence. (See para [40] above.) 2. The wrongfulness of Mr. Massey’s offence, is not reduced by the fact that the child pornography Mr. Massey made was not actually published to a child or to an adult correspondent actually engaged in communication with Mr.

Massey in the way he intended or understood, whatever that may have been, but, rather, was actually published to a police officer. (See para [51] above.) 3. The gravity of Mr. Massey’s offence is reduced to some extent by the fact that no actual harm resulted, though this point is not to be overemphasized. (See para [52] above.) 4. The sentence I craft must respect and give practical effect to Parliament’s determination, as reflected by its having increased, in 2015, the maximum sentence for Mr. Massey’s offence, that the offence is very serious (See para [53] above.) 5.

CC s 718.1, which directs that primacy be given to denunciation and deterrence in the determination of a fit sentence, applies to Mr.

Massey’s case even though no real child was actually abused. (See para [55] above.) The Crown’s Position [ 59 ] The Crown submits that a sentence of 9 to 12 months gaol followed by 24 months probation is a fit sentence in this case. [ 60 ] The Crown referenced the following sentencing decisions in support of its position: [ 61 ] R v AR 2018 ONCJ 613 – A father of two stepdaughters aged eight and eleven engaged in online dialogue with a stranger (MM) in which he wrote sexualized descriptions of his stepdaughters, shared their photographs, and wrote about “. . . hav[ing] fun with them both or hav[ing] them just rub my cock.

Till I explode all over their tiny hands . . .”. AR was charged after the email exchange was discovered on MM’s computer when MM was arrested for sexual contact with a seven-year-old child.

[62] Latimer J. identified three types of child pornography that would come within CC s 163.1(1): “visual or written materialinvolving imaginary children, written material involving real children, and actual images of children captured while the child is eitherbeing sexualized or sexually abused.” The third category, he said, “contains the greatest aggravating features and concerns”. As forwritten child pornography, he said: Written material – even that which contains references to actual children – does not require exploitation or abuse as a condition precedentto its creation.

Its existence, nevertheless, presents a risk of harm to children. [63] After reviewing several authorities, Latimer J. imposed a sentence of seven months jail. He held that the fact that AR’swriting sexualized his own stepdaughters, that he used their pictures as “props” and that the stepdaughters had suffered hurt and anguishas a result, were aggravating factors. [64] R v Freeman 2019 ONCJ 721 – The Accused was found guilty of two counts of making child pornography and one count ofmaking arrangements to commit an offence under CC s 151 and s 271.

The charges arose out of two series of online chats, both withundercover police officers pretending to be mothers of very young daughters. The Accused counseled one “mother” to sexually assaulther child. He described in graphic detail what he wanted to do with the “mothers” four-year-old daughter and made arrangements tomeet the “mother” and the daughter for that purpose. He did not attend the arranged meeting. The Accused counseled the other“mother” in a similar manner. [65] Rahman J. distinguished these circumstances from those in AR, “The offender was not just writing stories like the offender inA.R.

In both [offences of making child pornography before the court] he was encouraging a mother to engage in sexual activity with herchild.” [66] In discussing the offence of making arrangements to commit an offence conviction, Rahman J. observed: (para 42) Moreover, the fact that the offence involved a fictional child does not diminish the offender’s blameworthiness. I cannot agree with[Defence Counsel] that the fact that no real child was involved, or at risk of being harmed, is a mitigating factor.

The offender believedhe was communicating with a real person about abusing a real child.” [67] Rahman J. imposed a global sentence of 30 months. He apportioned that global sentence among the three convictions asfollows: 18 months on one count of making child pornography and 12 months on the other count of that offence and 18 months on themaking arrangements conviction. [68] R v Levin 1025 ONCJ 290 – A 63-year-old accused engaged in multiple electronic written conversations with police officersposing as mothers of young daughters. He encouraged the “mothers” to engage in sexual activity with their “daughters”.

The sexualactivity advocated was violent sexual abuse. The accused pleaded guilty to three offences: possession of child pornography, makingchild pornography, and counselling sexual assault. He had no criminal record. He had a distinguished professional background as auniversity academic. He had the support of his family and former colleagues and students. After his arrest, he participated incounseling. A psychiatrist assessed his risk of reoffence as low.

He expressed remorse which the Court accepted as genuine. [69] As to the making child pornography conviction, McArthur J. accepted a joint submission of 12 months jail – the minimumsentence required by CC s 163.1(2). She nevertheless considered it necessary to consider how the relevant sentencing principles shouldapply in the context of the case before her in determining a fit global sentence for the three offences to which he had pleaded guilty, oneof which did not have a mandatory minimum sentence. She identified several principles, authorities and considerations as relevant in thatregard.

The following are those which have relevance to making child pornography offence: - Denunciation and general deterrence are the paramount sentencing considerations in child pornography offences.

She referencedLamer C.J. in R v M (CA) (SCC), [1996] 1 SCR 500 who at para 81 quoted from R v Jones (SCC),[1994] 2 SCR 229 at 291 where the majority of the SCC in discussing the distinction between the sentencing goals of retribution anddenunciation, said: . . . a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punishedfor encroaching on our society’s basic code of values as enshrined within our substantive criminal law. As Lord Justice Lawton stated inR v Sargeant (1974), 60 Cr. App.

R. 74 at p. 77: “society, through the courts, must show its abhorrence of particular types of crimes, andthe only way in which the courts can show this is by the sentences they pass.” - In R v Kwok (ON SC), [2007] O.J. No. 457 (Ont SCJ) Molly J. set out a list of relevant aggravating andmitigating factors to be considered in crafting a fit sentence for a child pornography offence.

These are discussed at para [80] below. - The child pornography which the accused made and published included a story which he wrote detailing the violent sexual assaultof a 10-year-old girl and a conversation with a police officer posing as a young woman interested in the sexual abuse of children in whichthe accused and the “woman” spoke in graphic detail about the fictional sexual abuse of a girl aged between 8 and 10 years. - The fictional woman with whom the accused communicated expressed fear of engaging in sexual abuse of a child.

The accused“had no way of knowing whether his story might give her the push she needed to overcome her hesitation and pursue her desires.” Further, “[t]he fictional child was subjected to violent and degrading sexual abuse.” [70] McArthur J. noted that: In the present case, however, I heard evidence from Dr. Gojer that written child pornography was harmful because it could createbehaviours in the receiver who might act on it. Dr. Gojer also said that Mr.

Levin [the accused] was aware that child abuse stories can befuel for those inclined to sexually abuse children. [71] McArthur J. held that the 12-month sentence for making child pornography, which was also the constitutionally unchallenged

minimum sentence, was fit for the case before her. [ 72 ] In my view, these cases are instances of making child pornography which are significantly more serious than Mr. Massey’s crime. Mr. Massey’s crime, unlike AR’s, did not involve sending sexualized descriptions of young girls in his care and their photographs to his correspondent. Unlike Mr. Freeman he did not encourage young mothers to sexually assault their very young daughters or describe in graphic detail sexual activity in which he would, with their cooperation, sexually assault their daughters. Unlike Mr.

Levin, he did not counsel mothers to sexually interfere with daughters, or send a story that described the violent sexual assault of a 10-year-old. Aggravating Factor [ 73 ] The Crown submitted that the fact that Mr. Massey was convicted of two offences relating to the terms of his release on bail in respect of the charges he faced, including the charge of which he was convicted, should be considered an aggravating factor. [ 74 ] I disagree. The convictions were after Mr. Massey committed the offence now before the Court.

And, more significantly, the circumstances surrounding their commission have been fully explained by Mr. Massey in the unchallenged affidavit he filed for this sentencing. (See paras [25] to [28] above.) [ 75 ] In my view, those convictions have absolutely no aggravating significance in the determination of a fit sentence for the offence now before the court. The Defence Position [ 76 ] The Defence position, as presented in written submissions, is that a fit sentence for Mr. Massey is three years’ probation with strict conditions including community service hours. In oral submissions, Ms.

Boisvert submitted that a fit sentence would be three months gaol served intermittently. Defence Authorities [ 77 ] In support, the Defence referenced R v Esposito , 2020 ABQB 165 , where the accused pleaded guilty on the eve of trial to making child pornography. He had convinced a 15-year-old child who was in custody at the Calgary Young Offender Centre to send him nine photos of herself in exchange for money. Some of the photos were of her feet. Some of them were of her in bra and panties. Some of them were of her in the nude.

The images were found on the accused’s electronic device. [ 78 ] After taking into account mitigating factors such as the late guilty plea, the lack of a criminal record, a psychological assessment which found low risk that the accused would reoffend, and the accused’s significant cognitive mental health issues which resulted in him not realizing the gravity of his offence, Gates J. of this Court imposed a two year conditional sentence. (I assume a conditional sentence was possible because the offence occurred in February 2015 which was before the maximum penalty for making child pornography was increased to 14 years). [ 79 ] Gates J. discussed many previous cases of making or possessing child pornography in detail in his decision.

These include: - R v Andukonis , 2012 ABCA 148 (discussed at paras 109 to111) where a sentence of 12 months followed by 3 years probation for possession of child pornography was upheld. The pornography consisted of 42 unique pictures and 87 unique videos. The videos depicted sexual exploitation of children including sadistic sexual abuse. - R v Kwok [2007] OJ No 459 (Ont SCJ) (discussed at para 113) where a sentence of 12 months imprisonment was imposed for possession of 2000 computer images and 60 video clips that were child pornography.

In addition there was written material consisting of chat room discussions among pedophilles. Molloy J. listed the “generally accepted” aggravating and mitigating factors in such a case: (para 7) Generally speaking, any of the following are considered to be aggravating factors: (

i) a criminal record for similar or related offences; (ii) whether there was also production or distribution of the pornography; (iii) the size of the pornography collection; (iv) the nature of the collection (including the age of the children involved and the relative depravity and violence depicted); (

v) the extent to which the offender is seen as a danger to children (including whether he is a diagnosed pedophile who has acted on his impulse in the past by assaulting children); and (vi) whether the offender has purchased child pornography thereby contributing to the sexual victimization of children for profit as opposed to merely collecting it by free download from the Internet. Generally recognized mitigating factors are: (

i) the youthful age of the offender; (ii) the otherwise good character of the offender; (iii) the extent to which the offender has shown insight into his problem; (iv) whether he has demonstrated genuine remorse; (

v) whether the offender is willing to submit to treatment and counselling or has already undertaken such treatment; (vi) the existence of a guilty plea; and (vii) the extent to which the offender has already suffered for his crime (for example, in his family, career or community) - R v Hammond 2009 ABCA 415 (discussed at paras 114 to 116) where the accused pleaded guilty to accessing child pornography on a computer which held 456 unique images and 106 unique videos of child pornography. Some of the videos were of pre-teen children undergoing actual sexual assaults by adult males.

The Court noted that actual children were violated and abused to produce the pornography. Expert evidence indicated that the accused lacked remorse and was likely to re-engage his deviant sexual interests. At trial the accused had been sentenced to a 90-day intermittent sentence. The Alberta Court of Appeal substituted a sentence of 12 months. [ 80 ] Gates J. also discussed (in paras 128 to 143) six Alberta and one Ontario case of sexual offences against children, in most of which, conditional sentences were imposed.

These cases predated the amendments to the Criminal Code which made such sentences unavailable for some offences. He summarized his review of these cases as follows: (para 142) To summarize, Paradee [2013 ABCA 41] involved charges of Internet luring and accessing child pornography and resulted in sentences of 12 months and 6 months consecutive, respectively. Danielson [2013 ABPC 26] was convicted of Internet luring and received a one- year conditional sentence followed by one-year probation. Schroeder [2012 ABPC 241] was also convicted of Internet luring and

possession of child pornography. He was sentenced to 90 days intermittent for the child pornography charge and a conditional sentenceof 21 months less a day for Internet luring. Bejasa [2010 ABPC 249] pled guilty to charges of possession and accessing childpornography and received a global sentence of 5 months imprisonment followed by 3 years probation. Torwich [2010 ABPC 233] wassentenced to an 18- month conditional sentence for the offence of Internet luring.

Gibbon [2009 ABPC 265] and Folino (ON CA), [2005 77 OR(3d) 641 (ONCA)] were both Internet luring cases In Gibbon, the accused received a two-year conditionalsentence, while the Court of Appeal in Folino imposed an 18-month conditional sentence. Mitigating Factors [81] Ms. Boisvert submitted that several factors should be recognized as mitigating the seriousness of Mr. Massey’s crime. Thesewere: - that Mr. Massey had no criminal record prior to committing the crime now before the court; - that Mr.

Massey is genuinely remorseful for his crime; - that the parenting he received as a child had significant deficiencies; - that being charged with the offence of which he was convicted and a more serious offence of which he was acquitted, led to hisloss of his employment with the military; - that for over three and a half years he has been bound by bail conditions which have significantly affected his ability to maintainappropriate employment and housing both because of their content and because of the strict and sometimes inconsistent

interpretations ofthem made by his bail supervisors; - that he has nonetheless impressed a potential employer and has been guaranteed employment when he is not subject to courtimposed restrictions that prevent him from carrying out the duties assigned to him; - that he is in a stable relationship and has the support of his father; - that though he did not plead guilty to the charge now before the court, his trial was for that charge and another more seriouscharge, child luring, of which he was acquitted; - that at his trial he admitted the whole of the Crown case so that it was not necessary for the Crown to call any witnesses.

He wasthe only witness at the trial. This saved what was potentially very considerable expense for the Crown, given that it’s chief witnesswould have been a police officer from Texas; - that he has endured repeated media coverage of these proceedings, which has included his photograph; - that as a result of the publicity given to his charges in the media he was vilified in the community in which he lived, his vehicleswere vandalized, he felt obliged to move his residence out of the community; - that he has experienced mental health issues since being charged which have required treatment. [82] I agree with Ms.

Boisvert that all of these factors are mitigating. Gravity of Mr. Massey’s Offence [83] The determination of a fit sentence requires the assessment of the wrongfulness of Mr. Massey’s criminal conduct and theharm caused by it. [84] While making child pornography is, like all criminal offences, serious misconduct, not all instances of making childpornography are of equal gravity. There is a significant range of conduct which can fall under the label “making child pornography”. Inmy view, Mr. Massey’s crime is on the less serious end of that range. [85] Further, it is important in assessing Mr.

Massey’s crime, to distinguish and keep separate the crime he committed from thecrime he was charge with but acquitted of, child luring. [86] Mr. Massey’s crime was making (writing) and publishing (sending) text messages that advocated or counselled criminalsexual activity with a person under 18. The specific features of Mr. Massey’s crime which, in my view, are significant to the assessmentof its gravity are that: - The child pornography he made consisted of written words not images or videos. - The quantity of child pornography that Mr. Massey made was extremely small.

It consisted of a total of about 30 text messages intwo text conversations. - The child pornography Mr. Massey made was in the form of text messages sent to one correspondent – his intended “audience”was the smallest possible audience – 1 person. - There was in fact no possibility that the child pornography which Mr. Massey made and sent would be distributed to anyone other

than the person to whom he sent it. Further Mr. Massey did not intend that it be communicated to more than one person. - No actual or real child was exploited or directly harmed by his conduct. As previously noted, this point is not to be overemphasized. (See para [52] above.) - The recipient of messages was not a person who was capable of being corrupted. It was a person who was not susceptible to the advocacy or counselling. It was a police officer. Again, this point is relevant but should not be overemphasized. [ 87 ] As to moral blameworthiness, Mr.

Massey either believed he was communicating with a 13-year-old child or an adult woman engaged with him in a sexual fantasy. One or the other was the intended “publishee” of the child pornography he made. It did not matter for the purposes of finding that he had committed the crime which it was. However, in my view, it makes a difference to Mr. Massey’s moral blameworthiness which he believed it was. I must proceed on the basis that it was not proved beyond a reasonable doubt that he thought he was communicating with a child.

I must make my assessment on the basis that he thought he was communicating with an adult. In my view, that is significantly less blameworthy than believing that he was communicating with a child. [ 88 ] In assessing the gravity of Mr. Massey’s offence, I have kept in mind the first three principles which I previously indicated I conclude Friesen instructs me to be attentive to in crafting a fit sentence for Mr. Massey. (See para [58] above.) I recognize that the wrongfulness aspect of Mr. Massey’s crime is not affected by the fact that no real person was harmed by it. I recognize that the harm caused by Mr.

Massey’s crime derives from the fact that he believed he was communicating with another person who was truly engaged in the conversation (as distinct from a police officer conducting a sting operation) and that in the communication he advocated criminal sexual activity with a person under 18. And I recognize that though no real person was actually encouraged to commit a sexual offence against a child, this consideration is not to be overemphasized. Giving Effect to Parliament’s Intentions [ 89 ] I turn to the instruction in Friesen that I respect and give practical effect to Parliament’s determination that Mr.

Massey’s offence is very serious, which determination is reflected in Parliament’s having increased, in 2015, the maximum sentence for Mr. Massey’s offence to 14 years. [ 90 ] In my view, Parliament itself gave practical effect to its determination in the context with which I am dealing. The effect of having increased the maximum sentence to 14 years was to make a conditional sentence unavailable for Mr. Massey. As the authorities reviewed above indicate, for offences committed prior to 2015 conditional sentences were often imposed for offences more serious than Mr. Massey’s offence.

In my view, but for the 2015 amendment, a fit sentence for Mr. Massey would very likely be a conditional sentence. [ 91 ] To put it bluntly, in my view, Parliament does not need my help in implementing its policy. Because the possibility of a conditional sentence has been removed , Parliament’s determination that sentences for sexual offences against children must be harsher is self-implementing in the circumstances of this case.

Primacy of Denunciation and Deterrence [ 92 ] As to the requirement in CC s 718.01 that denunciation and deterrence are to be given primacy among the sentencing goals in a case involving the abuse of a child, which, as I interpret Friesen , applies in this case (see para [55] above), in my view, the practical consequence for Mr. Massey is that neither a suspended sentence (ie probation) nor an intermittent sentence is appropriate. [ 93 ] In my view, an intermittent sentence, where Mr.

Massey would be in goal only on weekends, would not adequately provide the denunciation and deterrence that his sentence must reflect. The same conclusion would apply to a suspended sentence. A Fit Sentence [ 94 ] Having taken all of these matters into careful consideration, my conclusion is that a fit sentence for Mr. Massey is three months gaol. [ 95 ] Mr. Massey, I sentence you to three months gaol. [ 96 ] I do not order that Mr. Massey be subject to a term of probation after his release from gaol.

In my view, the bail conditions which he has been subject to for more than three and a half years have accomplished any purpose that might be served by a further probation order. Corollary Orders [ 97 ] I make the mandatory SOIRA order which will be in place for 20 years. [ 98 ] I order that Mr. Massey provide a DNA sample. [ 99 ] I order the forfeiture to the Crown of any property seized in relation to the investigation of Mr. Massey’s offence. [ 100 ] I do not however make a CC s 161 order though one was requested by the Crown. The

section applies where an offender is convicted of an offence under CC s 163.1 “in respect of a person who is under the age of 16 years”. In my view, Mr. Massey’s offence of making pornography that counselled criminal sexual activity with a person under 18 but did not involve a real person, does not come within that description. [ 101 ] Even if it did, I am satisfied, that there is nothing in the circumstances of Mr. Massey’s offence that justify the conclusion that such an order is appropriate in his case.

Heard on the 16 th day of February, 2021. Dated at the City of Edmonton, Alberta this 25 th day of February, 2021. B.R. Burrows J.C.Q.B.A. Appearances: Danielle Fostey for the Crown Danielle Boisvert for the Accused