R v Misay, 2021 ABQB 485

Court of Queen’s Bench of Alberta Citation: R v Misay, 2021 ABQB 485 Date: 20210623 Docket: 180684789Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Wilson Misay Accused _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice W.N. Renke _______________________________________________________ [ 1 ] On October 22, 2020, Mr.

Misay pled guilty to one count on an Indictment alleging that he Between the 4 th day of June, 2018 and the 11 th day of June, 2018, both dates inclusive, at or near Drayton Valley, Alberta, did by means of telecommunication, communicate with a person who was, or the accused believed was, under the age of 16 years, for the purpose of facilitating the commission of an offence under subsection 151, s. 152 , s. 173(2) , or s. 271 , of the Criminal Code , contrary to

section 172.1(1) (

b) of the Criminal Code of Canada . I must determine the appropriate sentence for Mr. Misay for this offence. [ 2 ] I will review the circumstances of the offence and Mr. Misay’s background. Further details about the offence and Mr. Misay will be discussed in connection with the elements of the sentencing analysis. [ 3 ] The evidence in the sentencing proceedings included an Agreed Statement of Facts, a Presentence Report prepared by Georgette Masson, a Probation Officer, a report prepared by Dr. George Pugh (Report), and the testimony of Dr. Pugh. Dr.

Pugh, a Clinical Psychologist, was qualified as an expert in forensic assessment and psychology. Mr. Misay made a statement to the Court under s. 726 of the Criminal Code . Table of Contents I. Factual Background . 2

A. The Offence . 2 B. Mr. Misay’s Personal Circumstances . 3 II. Sentencing Assessment 4 A. Overview .. 4 B. Friesen and Sentencing for Sexual Offences Against Children . 6 C. Proportionality . 6 1. General Features of Proportionality . 7 2. Gravity of the Offence . 7 3. Degree of Responsibility . 11 D. Pre-Offence and Post-Offence Factors . 16 1. Pre-Offence Factors . 16 2. Post-Offence Factors . 18 D. Risk of Re-Offending . 22 E. Actual Impact/Collateral Consequences . 24 1. COVID .. 24 2. Immigration Consequences . 24 F. Sentencing Objectives . 25 G. Parity of Sentences . 26 III. The Fit Sentence for Mr.

Misay . 27 I. Factual Background A. The Offence [ 4 ] Mr. Misay was 38 years old at the time of the offence. [ 5 ] In May 2018, the Northern Alberta Internet Child Exploitation Unit (NAICE) received reports about Mr. Misay from U.S. and Canadian organizations that monitor online child exploitation. [ 6 ] On May 31, 2018, NAICE commenced an undercover operation respecting Mr. Misay. An undercover operator adopted the persona of a 15-year old girl (the Persona) and made contact with Mr. Misay by text messages to his cellphone. [ 7 ] Mr. Misay engaged in sexually explicit communications with the Persona.

He sent images of himself including images of his exposed genitals and he requested images of the Persona. [ 8 ] Mr. Misay expressly discussed the sexual activity he planned to engage in when he met the Persona. [ 9 ] On June 11, 2018, Mr. Misay made arrangements through online communications to meet the Persona at the Best Western Hotel in Drayton Valley. His purpose was to engage in sexual activity with the Persona. [ 10 ] When Mr. Misay went to the hotel he was arrested. His cellphone was seized and was later analyzed pursuant to a search warrant. [ 11 ] Upon arrest, Mr. Misay was Chartered and cautioned.

He provided a statement to police. He admitted sending the text messages to the Persona and sending the images of his genitals to the Persona. He acknowledged that he planned to meet with her to engage in sexual activity. [ 12 ] Mr. Misay acknowledged that he communicated via online telecommunications with the Persona, whom he believed was 15 years old, for the purposes of committing the offence of sexual interference established by s. 151 of the Criminal Code . [ 13 ] A forensic analysis of Mr. Misay’s cellphone disclosed text message exchanges between Mr. Misay and the Persona.

Text messages from May 31 to June 5, 2018 were appended to the Agreed Statement of Facts.

B. Mr. Misay’s Personal Circumstances [ 14 ] Mr. Misay was born in the Philippines. Mr. Misay has a four-year Business Administration degree. Following graduation, he worked at a bank as a loans officer. He married in 2000. His daughter was born in 2001. His wife came to Canada in 2007. He and his daughter remained in the Philippines until coming to Canada in 2015. [ 15 ] On coming to Canada, Mr. Misay and his daughter lived with his wife in Drayton Valley. [ 16 ] Mr. Misay learned that his wife had been unfaithful in 2016.

He continued to live with her for 17 months, waiting for the approval of his application for Permanent Residency status. He became a permanent resident in 2017. He and his wife divorced in 2018. [ 17 ] During the period preceding the divorce Mr. Misay became acquainted with Facebook. The offence occurred during this period. [ 18 ] His daughter now lives with his ex-wife in Leduc. Mr. Misay maintains contact with his daughter but not with his ex-wife. [ 19 ] Mr. Misay has a romantic relationship with Fabby Licun, a 36-year old woman who first met Mr. Misay when they both lived in the Philippines.

She is aware of the current charge. [ 20 ] When he arrived in Canada, Mr. Misay got a cleaning job at Independent Grocery Store in Drayton Valley, worked a second job at the local arena, and at times also worked as a dishwasher at a hotel in Drayton Valley. He was able to obtain a cleaning contract for this hotel while maintaining his dishwashing position. He held this job for two years but was terminated when he was charged. [ 21 ] Mr. Misay is currently working at an Edmonton hotel doing maintenance and repairs and has found a second job doing cleaning at a Walmart. [ 22 ] Mr.

Misay attends church regularly. [ 23 ] Mr. Misay’s parents live in the Philippines. He has sent them between $400-$500 per month when he is working. He has also provided his daughter with $200 per month. [ 24 ] He now lives alone in Edmonton. [ 25 ] He has no issues with drug or alcohol abuse or addictions. II. Sentencing Assessment [ 26 ] The Crown has urged a sentence of 18 months incarceration followed by 3 years probation, as well as ancillary orders. [ 27 ] The Defence submits that a sentence of 6 months less one day, plus two to three years probation would be appropriate in Mr.

Misay’s circumstances, including maximum community service hours. The Defence does not challenge the ancillary orders sought by the Crown. [ 28 ] I will proceed by providing a very brief overview of the elements of sentencing, set out the orientation toward sentencing for child sexual offences prescribed by the Supreme Court’s decision in R v Friesen , 2020 SCC 9 , then work through the elements of the sentencing analysis – the gravity of Mr. Misay’s offence and his degree of blameworthiness and aggravating and mitigating circumstances, pre-offence and post-offence factors, Mr.

Misay’s risk of reoffending, the risk to Mr. Misay’s immigration status as a collateral consequence of sentencing, sentencing objectives, and comparator sentences – before setting Mr. Misay’s sentence. A. Overview [ 29 ]

Section 718 of the Criminal Code encapsulates the four main elements of sentencing. Sentences for offences are “to protect society and to contribute … to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the … objectives [listed in s. 718 ].” First, s. 718 recognizes the fundamental purpose or justifying aim of sentencing, social protection and the maintenance of a just, peaceful and safe society. Second, s. 718 refers to “sanctions,” the tools of sentencing that include (e.g.) imprisonment, fines, and probation.

Third, s. 718 refers to “just sanctions.” I will elaborate below, but a “just sanction” is both a sanction authorized by law and a proportionate sanction. Fourth, s. 718 provides that just sanctions must serve one or more of the objectives listed in s. 718 and thereby promote the fundamental purpose of sentencing. The s. 718 objectives are as follows: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 30 ] The elements of a sentencing analysis include the following:

• Under s. 718.1 of the Criminal Code , a sentence must be proportionate both to the gravity of the offence (what was done) and the degree of responsibility of the offender (e.g., the how and why of the offence and its connection to the offender’s circumstances). • Under s. 718.2(a), the assessment of the gravity of the offence and the degree of responsibility of the offender must be informed by “any relevant aggravating or mitigating circumstances relating to the offence or the offender.” Mitigating factors tend to decrease either the gravity of the offence or the degree of responsibility of the offender.

Aggravating factors tend to increase the gravity or the degree of responsibility: R v TF , 2019 SKCA 82 , Kalmakoff JA at para 54. • Pre-offence and post-offence factors may be relevant to the offender’s degree of responsibility or to the appropriate objectives of sentencing for that offender. • Parity must be respected.

Section 718.2(

b) provides that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” See Friesen at paras 31-33 ; R v Lacasse , 2015 SCC 64 , Wagner J, as he then was, at para 2. • “Collateral consequences,” the actual and peculiar impact of the sentence on an offender may be taken into account, so long as the sentence remains proportional: R v SLW , 2018 ABCA 235 at para 39 ; R v Morrisey , 2000 SCC 39 , Gonthier J at para 41. • Under s. 718.2(d), the principle of restraint must be respected: “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.” • Under s. 718.2(e), “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders ….” • Since offences are committed in particular circumstances by particular individuals, the determination of a proportionate sentence is “highly individualized:” R v Nur , 2015 SCC 15 , McLachlin CJC at para 43.

An effect of proportionality is the individualization or case-by-case determination of sentences: R v Ramsay , 2012 ABCA 257 at para 20 ; R v Arcand , 2010 ABCA 363 at para 66 ; R v Suter , 2018 SCC 34 , Moldaver J at para 4. Justice must be done in individual cases and judges must retain the flexibility to individualize the sentence to the offender before them: Friesen at para 114 . B. Friesen and Sentencing for Sexual Offences Against Children [ 31 ] The landscape of sentencing for sexual offences against children was recently modified by Friesen .

Friesen’s guidance applies to sexual interference and related offences such as invitation to sexual touching ( s. 152 ), sexual exploitation (s. 153(1)), sexual assault (s. 271), and child luring (s. 172.1), the offence to which Mr. Misay pled guilty. [ 32 ] The overarching message of Friesen for sentencing judges is set out at para 5: [5] .... sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase.

Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large.

In para 1, Chief Justice Wagner and Justice Rowe wrote that “[t]his case is about how to impose sentences that fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children.” [ 33 ] In Friesen , the Supreme Court sought to correct underestimations of the gravity of sexual offences against children, misinterpretations of offenders’ degrees of responsibility, and misapplications of aggravating and mitigating factors respecting offenders’ responsibility. [ 34 ] Friesen states that “[s]exual offences against children should generally be punished more severely than sexual offences against adults:” at paras 107, 117.

The Court looked to s. 718.01, the statutory identification of aggravating circumstances in s. 718.2(a) (ii.1) and (iii), and the maximum sentences for younger victims in contrast to older victims: at para 116. [ 35 ] The Court indicated at para 114 that “mid-single digit penitentiary terms for sexual offences against children are normal and ... upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances.” C.

Proportionality [ 36 ] Proportionality is the fundamental principle of sentencing: R v Hajar , 2016 ABCA 222 at para 136 ; R v Hamlyn , 2016 ABCA 127 at para 7 ; R v Safarzadeh-Markhali , 2016 SCC 14 at paras 70-71 ; Friesen at paras 5, 75, 30 . [ 37 ] I’ll consider some general features of proportionality, the “gravity of the offence” dimension of proportionality, and the “degree of responsibility” dimension of proportionality. [ 38 ] In the course of the discussion, I will refer to various aggravating and mitigating circumstances bearing on proportionality. I will not reproduce s. 718.2(a).

In my view, none of the enumerated aggravating circumstances were engaged. In particular, the evidence did not support a finding that Mr. Misay was in a position of trust or authority relating to the Persona (s. 718.2(a)(iii)) and the Crown did not suggest otherwise.

1. General Features of Proportionality [39] A “just” sanction is a proportionate sanction. A proportionate sentence is “just” because the punishment “fits” the crime. Thepunishment must be neither excessive nor inadequate.

Proportionality ensures that the punishment is what the offender “deserves.” [40] Proportionality has two dimensions, captured in s. 718.1 of the Criminal Code – the gravity of the offence and the degree ofresponsibility of the offender: See Lacasse at para 12; R v Ipeelee, 2012 SCC 13, LeBel J at paras 36, 37. [41] Wrongfulness and harm must be gauged against the “prime interests” protected by the sexual offence against childrenlegislative regime – “the personal autonomy, bodily integrity, sexual integrity, dignity, and equality of children:” Friesen at para 51. 2.

Gravity of the Offence [42] I’ll address some aspects of the “gravity of the offence” dimension of proportionality, the approach to the gravity of offenceassessment directed by Friesen, and assess the gravity of Mr. Misay’s offence. (

a) Aspects of “Gravity of the Offence” [43] The “gravity of the offence” concerns what the offender did wrong: Arcand at para 57. [44] Assessing the gravity of the offence requires consideration of • the nature of the offence itself, its act element and fault element, as this reflects on the inherent wrongfulness of the offence • the harm radiating from the offence, from the victim to the broader community and (ultimately) the national community and tosocial values – bearing in mind that harm may be actual or potential (risked, and more or less probable) • the penalty for the offence, as an indication of Parliament’s assessment of the wrongfulness and harm associated with an offence(see Friesen at para 96) • as provided in s. 718.2(a), “aggravating or mitigating circumstances relating to the offence or the offender.” (

b) Friesen and the Gravity of the Offence [45] The wrongfulness of sexual offences against children lies in the offences’ repudiation of the fundamental value of protectingchildren: at para 65. Instead of protecting children because of their vulnerability, offenders take advantage of children’s vulnerabilitywhen committing offences: Friesen at paras 64-67. The offences violate children’s rights to equality and dignity. [46] Blameworthiness follows from the exploitation of the victim by the offender – “the offender is treating the victim as an objectand disregarding the victim’s human dignity:” at para 89.

Further, blameworthiness is magnified because the victim is a child, bydefinition vulnerable: at para 90. [47] At para 76, the Court wrote that courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flowsfrom these offences; and, (3) the actual harm that children suffer as a result of these offences.

We emphasize that sexual offences againstchildren are inherently wrongful and always put children at risk of serious harm, even as the degree of wrongfulness, the extent to whichpotential harm materializes, and actual harm vary from case to case. [48] In this passage, the Court emphasizes that sexual offences against children are wrong in themselves, regardless ofconsequences threatened or actualized. [49] An important aspect of the “gravity of the offence” assessment is acknowledgement of the wide scope of harms that sexualoffences against children may threaten or in fact cause.

Note that the gravity of the offence may turn on the harm risked, even if harm isnot actually caused. Of course, harm caused would raise the gravity of the offence even higher. Consequences matter: see R v Creighton, (SCC), [1993] 3 SCR 3, McLachlin J, as she then was, at 54. Harm caused is a “key determinant” of the gravity of anoffence. Evidence of actual harm must be considered in sentencing: Friesen at para 85. Harm may not be apparent at the time ofsentencing.

The Supreme Court stated that “courts must consider the reasonably foreseeable potential harm that flows from sexualviolence against children when determining the gravity of the offence:” at para 84. [50] Harm may be physical. It may be emotional and psychological: at para 56. Harm may be emotional or psychological withoutbeing physical: at para 82. A sexual offence may damage an entire life, as when, as Justice Clackson has remarked, a child is pressuredto make adult decisions with potentially life-altering consequences: R v Reeves, 2020 ABQB 78 at para 37. Harm may impair a child’sability to form relationships.

Harm may manifest while the victim is still a child or may persist into adulthood: Friesen at paras 79-81.Harm may be caused to children’s relationships with their families and caregivers and other social relationships: at paras 60, 61, 63. (

c) The Gravity of the Offence of Luring [51] Justice Moldaver confirmed in R v Morrison, 2019 SCC 15 at paras 39 and 40 that [39] .... Parliament created [the “luring”] offence to combat the very real threat posed by adult predators who attempt to groom or lurechildren by electronic means. As this Court explained in Levigne, the offence seeks to protect children by “identify[ing] and

apprehend[ing] predatory adults who, generally for illicit sexual purposes, troll the Internet to attract and entice vulnerable children and adolescents”: para. 24. [40] To achieve this purpose, s. 172.1 criminalizes conduct that precedes the commission, or even the attempted commission, of certain designated offences, most of which involve sexual exploitation of children. It thereby creates an essentially inchoate offence - that is, a preparatory crime that captures conduct intended to culminate in the commission of a completed offence ....

There is no requirement that the accused meet or even intend to meet with the other person with a view to committing any of the designated offences: see Legare , at para. 25. The offence reflects Parliament’s desire to “close the cyberspace door before the predator gets in to prey”: para. 25. [ 52 ] The conduct targeted by the offence is manifestly harmful and wrongful, and s. 172.1(1)(

b) is a very serious offence: Morrison , Karakatsanis J (dissenting but not on this point) at para 176; R v Hajar , 2016 ABCA 222 at para 155 . [ 53 ] Multiple forms of harm may be risked or caused by the offence. [ 54 ] If an offender communicates with a child, a further offence may be attempted or accomplished, or no offence may even be attempted. [ 55 ] Even if the offender pursues no further offence, the child faces the harms caused by the communications themselves. The communications would be exploitative, involving deceit or manipulation or both.

The communications may expose the child to or involve the child in sexualized communications. [ 56 ] If the offender pursues a further offence, the child faces the harms caused by the communications and the harms caused by the offence or by any steps taken by the offender to commit the offence. Even if the offender is intercepted before causing any actual harm to the child, the offender will have created the risks of harm inherent in the offence pursued. [ 57 ] The offender may not actually communicate with a child, as when the offender is caught by a police sting. No actual harm is caused to a particular child.

This does not make the offence a “victimless” crime. The Court emphasized that “child luring should never be viewed as a victimless crime:” Friesen at para 94 . The offender seeks a victim, but was wrong about whether he actually acquired one. The victim existed in his imagination and in the representation by the undercover officer. The offender’s communications still posed risks to children. The offender’s dangerous communications simply missed their mark, and reached not prey but another sort of hunter.

The Court wrote at para 93 that “[a]lthough 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.” [ 58 ] The gravity of the luring offence is reflected in its maximum penalty of 14 years imprisonment. In R v Melrose , 2021 ABQB 73 I struck down the mandatory minimum sentence in s. 172.1(2)(a). See also R v Jissink , 2021 ABQB 102 , Michalyshyn J at para 80.

The Ontario Court of Appeal has suggested that even if a mandatory minimum sentence is struck down, “Parliament’s legislative initiatives signal Canadians’ concerns” about the offence and those concerns warrant respect: R v Inksetter , 2018 ONCA 474 at para 24 . Under s. 742.1(c), a conditional sentence of imprisonment is not available for this offence. (

d) The Gravity of Mr. Misay’s Offence [ 59 ] The luring offence has a broad sweep, capturing many types of predatory conduct. Justice Moldaver had remarked in Morrison at para 146 on the breadth of offences listed in s. 172.1(1) . In addition to that breadth, the notion of “facilitation” has a broad denotation. But while luring may capture many offences of many degrees of gravity of harm, the gravity of harm of Mr. Misay’s offence was profound. [ 60 ] He was 38 years old. He believed he was speaking with a 15-year old girl. He sent an image of his naked genitals to her.

He wanted to have sexual relations with her. He went to the hotel to have sex with her. He did not turn from his plan. He was thwarted because the Persona did not exist. [ 61 ] Part of the actus reus for the offence is the age of the young person. The young person’s age is therefore built into the gravity of the offences and therefore should not by itself be considered an aggravating factor. In contrast, I do take the 23-year age difference between Mr. Misay and the Persona to be an aggravating factor. [ 62 ] Mr.

Misay’s attempt to cause a 15-year old girl to have sex with him was inherently wrong and blameworthy. [ 63 ] Had the Persona been truly a 15-year old girl, she would have been exploited and abused by the luring and the assault. She could not have consented to sexual contact and would have been subjected to sexual violence. Her injuries could have been physical, emotional, or psychological. She was to come to Drayton Valley, essentially violating the trust of her own mother.

Damage to her relations with her family and injury to her mother herself were foreseeable. [ 64 ] Friesen states that offences against younger victims have increased gravity because of the victims’ deeper vulnerability and these offences demonstrate enhanced moral blameworthiness: at para 135. The Court cautioned, though, that courts must “be particularly careful to impose proportionate sentences in cases where the victim is an adolescent:” at para 136.

The Court was concerned that disproportionately low sentences have been imposed in these cases, even though “adolescents may be an age group that is disproportionately victimized by sexual violence.” In this case, the Persona was (or would have been) an adolescent. [ 65 ] All of these harms were risked by Mr. Misay’s conduct. [ 66 ] But Mr. Misay did not actually harm an individual. The Persona did not exist. Does that diminish the gravity of his offence? [ 67 ] In my opinion, Mr. Misay’s failure to achieve his goal did not diminish the gravity of his offence. His conduct was a serious violation of the law.

Missing the mark did not mitigate the seriousness of that conduct. Rather, the gravity of his conduct was not made even more serious by actual harm caused to an actual individual. Harming an individual would have been an aggravating factor. Again,

consequences matter. This is why attempts, including unsuccessful criminal efforts, may attract lower sentences than completed crimes:see, e.g., ss. 239 and 463 of the Criminal Code. Recall Friesen’s directions: “child luring should never be viewed as a victimless crime;”“the absence of a specific victim is relevant, it should not be overemphasized in arriving at a fit sentence. The accused can take no creditfor this factor:” at paras 94 and 93. [68] The gravity of the luring offence is not unitary, as if all luring offences have the same degree of seriousness.

As with otheroffences, the gravity of luring offences falls along a spectrum or continuum of seriousness. Distinctions can be and must be drawn. Mr.Misay’s offence was not as serious as it could have been, as he planned it to be. Yet Mr. Misay can take no credit for being caught by anundercover operation. The gravity of his offence is still high. 3. Degree of Responsibility [69] I’ll address some aspects of the “degree of responsibility” dimension of proportionality, the approach to the degree ofresponsibility assessment directed by Friesen, and assess Mr. Misay’s degree of responsibility. The evidence of Dr.

Pugh must beconsidered in this context. (

a) Aspects of Degree of Responsibility [70] The “degree of responsibility” concerns the moral culpability of the offender in committing the offence. [71] That is, while the “gravity” aspect of proportionality focuses on the act and its consequences or on what was done, the“responsibility” aspect of proportionality focuses on the actor, how the act was done, why the act was done, and by whom the act wasdone. [72] The degree of responsibility goes to the offender’s level of fault in committing the offence, beyond the level of fault requiredfor conviction: R v Laberge,1995 ABCA 196, Fraser CJA at para 7; Hamlyn at para 12; Arcand at para 58.

All other things being equal,the greater the fault, the greater the justified punitive response; and the more definite, conscious, or deliberate the purpose or intention,the greater the justified punitive response: R v Martineau, (SCC), [1990] 2 SCR 633, Lamer CJC at 645. Fault liesalong a continuum. (

b) Friesen and Degree of Responsibility [73] At para 88 of Friesen we read that “[i]ntentionally applying force of a sexual nature to a child is highly morally blameworthybecause the offender is or ought to be aware that this action can profoundly harm the child.” The Court went on to confirm that courts“must take into account the harm the offender intended or was reckless or wilfully blind to.” [74] The Court confirmed that victim participation should not distract from adults’ responsibility to refrain from sexual violenceagainst children. “Adults, not children, are responsible for preventing sexual activity between children and adults:” at para 154; see alsoR v EJB, 2018 ABCA 239 at para 42. [75] Persons under age 16 cannot consent to sexual activity.

Courts should therefore not analogize a child’s participation toconsent. De facto consent is not and cannot be a mitigating factor, either respecting the gravity of the offence or the degree ofresponsibility of the offender: at para 149. There is no defence of “implied consent” in Canadian law: Friesen at para 151. Victimparticipation “is not a legally relevant consideration at sentencing:” at para 150. I note that this aspect of Friesen aligns with Albertaappellate jurisprudence.

See Hajar at paras 40, 52, 82-83, 88-94, 97-98, 102; EJB at para 42. [76] Victim participation does not mean that an offence is free from physical or psychological violence: Friesen at para 152. TheCourt did observe that victim participation may “coincide with the absence of certain aggravating factors, such as additional violence orunconsciousness:” at para 150. The absence of an aggravating factor is not a mitigating factor. [77] Victim participation may be induced by grooming or a breach of trust.

These are aggravating factors: at para 153. [78] “[T]he degree of exploitation” inherent in sexual offences against children “may vary from case to case:” at para 78. (

c) Degree of Responsibility and Luring [79] The sting circumstances expose the importance of the fundamental blameworthiness or culpability that attracts criminalliability for s. 172.1(1) offences. [80] Culpability attaches to the intentionality of the offender (who knows the victim is underage), extending back from theintention to commit an offence, to the intention to attempt to commit an offence, to the intention to facilitate the commission of anoffence. In the paradigm case of an online predator seeking child victims, luring or grooming them step by small step in pursuit of a long-term plan, the high level of subjective fault even at the very earliest steps of commission is clear. (

d) Mr. Misay’s Degree of Responsibility [81] Two aspects of Mr. Misay’s degree of responsibility must be considered. On the one hand, what he actually did must beassessed. On the other hand, the evidence tending to show that his degree of responsibility was lessened by his personal circumstancesmust also be assessed. (

i) Mr. Misay’s Manifest Responsibility

[ 82 ] The Defence conceded the following fact: In 2017, Mr. Misay was contacted by the police in connection with an investigation respecting a 17-year old girl who had claimed that Mr. Misay wanted her to go to a hotel room. Nothing happened to her. Mr. Misay was not charged with any offence. He was warned by police that he should not engage in conduct that could be perceived as involving sexual contact with minors. [ 83 ] Ignorance of the law, of course, is no excuse: see s. 19 of the Criminal Code . Regardless, Mr.

Misay was expressly put on notice respecting the dangers of sexual contact with minors. [ 84 ] Mr. Misay admitted that he believed the Persona was 15. [ 85 ] Mr. Misay’s communications with the Persona took place over 7 days. The communications could not be said to be “impulsive,” brief, or one or two isolated comments. I also acknowledge, though, that the communications and conduct did not persist over a long time, whether measured in months or years. [ 86 ] In his communications, Mr. Misay was persistent. He sought images of the Persona. He sought information about her. He told her he loved her numerous times.

He introduced sexual communications on the first day he communicated with her, within about an hour of commencing communications. [ 87 ] He sought to have the Persona set up a “fake Facebook” account, even though, as the Persona told him, her mother had forbidden her to use Facebook. He lured her away from her family, away from Edmonton, to the hotel at Drayton Valley. There was an element of subterfuge in Mr. Misay’s luring.

He lured the Persona out of sight of the protection of her home and family. [ 88 ] Of course, any ostensible or apparent consent on the part of the 15-year old Persona could have no mitigating effect. [ 89 ] Mr. Misay’s conduct manifested a high degree of blameworthiness – in the absence of any mitigating explanation. (ii) Diminished Responsibility? [ 90 ] Cognitive difficulties or mental illness falling short of supporting an NCR finding may dispose an offender to make poor choices, choices made without sufficient assessment of the wrongfulness or harm that may flow from conduct.

Those affected by such challenges are, to that extent, less blameworthy than those not beset by such challenges. Such offenders’ responsibility is diminished.

All other things being equal, the greater the magnitude of cognitive deficits, the lower the degree of responsibility: Morrison , Karakatsanis J at para 183 ; Ramsay at paras 21, 25 ; R v Tremblay , 2006 ABCA 252 at para 7 ; R v Muldoon , 2006 ABCA 321 at para 10 ; R v Virani , 2012 ABCA 155 at para 16 ; R v Ayorech , 2012 ABCA 82 at para 12 ; R v Shevchenko , 2018 ABCA 31 at paras 25 , 28; R v Scofield , 2019 BCCA 3 at paras 64 , 76; Hajar at para 120 (b). [ 91 ] Friesen confirmed the relevance of diminished cognitive capacity to the assessment of the degree of blameworthiness.

The Court wrote as follows at para 91: [91] These comments should not be taken as a direction to disregard relevant factors that may reduce the offender’s moral culpability. The proportionality principle requires that the punishment imposed be “just and appropriate . . ., and nothing more” ( M. (C.A. ), at para. 80 (emphasis deleted); see also Ipeelee , at para. 37 ). First, as sexual assault and sexual interference are broadly-defined offences that embrace a wide spectrum of conduct, the offender’s conduct will be less morally blameworthy in some cases than in others.

Second, the personal circumstances of offenders can have a mitigating effect. For instance, offenders who suffer from mental disabilities that impose serious cognitive limitations will likely have reduced moral culpability ( R. v. Scofield ... at para. 64 ; R. v.

Hood , 2018 NSCA 18 , 45 C.R. (7th) 269, at para. 180 ). [emphasis added] [ 92 ] Note, however, that the Court has in mind “serious cognitive limitations.” At para 88 we read that “ save for possibly certain rare cases , offenders will usually have at least some awareness of the profound physical, psychological, and emotional harm that their actions may cause the child” [emphasis added]. [ 93 ] Dr. Pugh’s evidence raised three factors that might have supported a finding that Mr.

Misay’s level of blameworthiness was reduced, two concerning cognitive difficulties, the other concerning cultural influence. [ 94 ] First, Dr. Pugh tested Mr. Misay’s IQ using the Shipley-2 Brief Assessment of Intellectual Functioning. Dr. Pugh stated that Mr. Misay’s score on the part of the test relying on vocabulary indicated that he had a low IQ. However, Dr. Pugh did qualify this finding by acknowledging that this part of the test could have been compromised because English was not Mr. Misay’s first language. [ 95 ] Dr.

Pugh stated that the part of the test relating to logical thinking abilities also showed that Mr. Misay’s intelligence was below average. He again, though, qualified this view by stating that language difficulties may have interfered with the accuracy of the score. [ 96 ] Dr. Pugh did state that “Nevertheless, this lower score indicates a diminished ability to predict the outcome of a series of events and, as a consequence, quite possibly clouded his judgment with regard to the series of events that led to the charges against him.

Brain damage or dysfunction is possible but most likely not present.” [ 97 ] The texts appended as Exhibit A to the Agreed Statement of Facts demonstrate Mr. Misay’s lack of facility with English. Dr. Pugh did not elaborate on the nature of the testing – e.g. whether some of it was purely mathematical or arithmetical or used analyses of diagrams or other means not dependent on English language facility. If the words of a test aren’t understood, the ability to respond accurately to test questions is impaired. Dr. Pugh did not elaborate on the degree to which Mr.

Misay’s lack of facility in English impaired his performance in the testing. Mr. Misay’s lack of facility in English was a critical confounding factor respecting the reliability of the IQ testing and required attention that was not provided in Dr. Pugh’s evidence. [ 98 ] Dr. Pugh did not attempt to explain how Mr. Misay could have obtained a four-year University degree with lower than

average intelligence, or how he could have worked at a bank as a loans officer. At Report p. 15 we read In contrast to his university successes, his intellectual abilities are slightly diminished, as indicated by his lower score on a measure of abstract thinking. This means that his ability to predict and understand the consequences of his illegal conduct was poor. This is not to suggest that he is not responsible for the illegal conduct but rather to indicate that he does not have the clarity of thought of the average citizen. Dr.

Pugh did not elaborate on the explanation that could account for this “contrast.” [ 99 ] I find that the Defence did not establish on a balance of probabilities that Mr. Misay does have a “low IQ” or a lower than average IQ. [ 100 ] Regardless, even if Mr. Misay does have a “lower than average” IQ, Dr. Pugh referred only to a “diminished ability to predict the outcome of events.” Mr. Misay was evidently able to predict the outcome of his persistent importuning of the Persona to have sex with him. He set out to get her to the hotel room for sex and thought he had succeeded in accomplishing that purpose.

He believed he was dealing with a 15-year old. The evidence did not suggest that he could not understand that. [ 101 ] Moreover, nothing in Dr. Pugh’s evidence shows that Mr. Misay’s intelligence in any way approached the extremely capacities of the individual I confronted in Melrose : see paras 131-150 . Nothing in Dr. Pugh’s evidence shows the sort of extreme cognitive limitation having mitigating effect referred to in Friesen . [ 102 ] The second cognitive deficit matter referred to by Dr. Pugh is that Dr. Pugh also considered Mr.

Misay to have been suffering from serious depression at the time of his offence. “As well, it is most probable that, at the time of the criminal conduct, he was also depressed. Depression for Mr. Misay is, most likely, his reaction to high levels of stress and, when he was coping with the fracture of his marriage, the stress most likely triggered the depressive mood state.” At Report p. 15, Dr. Pugh wrote as follows: Further, personality testing reveals very high levels of anxiety and depression.

At the time of the offense, it is most probable that he was suffering from Major Depressive Disorder (moderate) as defined by the DSM 5: 296.32 (F33.1), brought on by the brokenness of his marriage and the deep levels of sadness, loss and confusion that swept over him. A sense of gloom and loss clouded his judgment and contributed to the poor decision-making that led to his illegal conduct. [ 103 ] The Crown raised the issue of whether Dr. Pugh had actually diagnosed that Mr. Misay was suffering from severe depression at the material time.

The issue raised by the Crown concerned the qualifications necessary to make the diagnosis, the procedures that should be followed to produce the diagnosis, and whether Dr. Pugh had followed those procedures. I did not have the evidence to pursue these matters. I have proceeded on the basis that Dr. Pugh could have diagnosed Mr. Misay’s depression. [ 104 ] Dr. Pugh assessed Mr. Misay in April 2021, almost three years after the events. I have no doubt that Mr. Misay is now suffering from depression and anxiety. As Dr. Pugh noted, he is dealing with an extremely difficult legal situation.

The difficulty is, how can it be determined now what Mr. Misay was experiencing then? [ 105 ] No health records were reviewed or appear to exist that would corroborate severe depression at the material time. Dr. Pugh did not refer to signs or symptoms at the material time that would have supported a finding that Mr. Misay then suffered depression sufficient to impair cognitive functioning. [ 106 ] Dr. Pugh provided an opinion but did not set out the bases or foundation for that opinion, even by reference to details of the self- reports by Mr. Misay. He provided no means of assessing his opinion.

The circumstances were like those commented on by Justice Binnie in R v J-LJ , 2000 SCC 51 at paras 59 and 57 : “He offered a packaged opinion but was not prepared to share with the trial judge the data which he relied on.” [ 107 ] I can attribute no weight to Dr. Pugh’s opinion based on his current assessment of Mr. Misay’s depression. I have no evidential foundation for inferring back from the present to his mental condition at the time of the offence. [ 108 ] I find that the Defence has not established on a balance of probabilities that Mr.

Misay was suffering from severe depression at the time of the offence. [ 109 ] I do not doubt that Mr. Misay was suffering from emotional upset at around the time of the offence. On the evidence, his wife had been unfaithful and he was in the difficult position of having to remain in the same residence as her. [ 110 ] Dr. Pugh wrote at Report p. 15 that “The background information is a story of broken dreams and heart break.” I accept the accuracy of that characterization. Regrettably, infidelity and the breakdown of relationships are not rare events in Alberta. Dr.

Pugh did not explain how or why the depression might have led not simply to looking for other adult female companionship – there are many dating websites to be found on the Internet – but led to looking for minor girls for sexual contact. The link between unhappiness, even deep unhappiness, and contacting minors for sex is not obvious and demanded an explanation. [ 111 ] Dr. Pugh also wrote at p. 15 that “A search for companionship and love began on the internet, after his introduction to Facebook.

He naively connected with teenage girls who, most likely, were also looking for companionship and connection, albeit generally with someone their own age.” At Report p. 9, Dr. Pugh wrote as follows: “In my opinion, his continuation of the wrong-doing represents a desperate longing to connect and find closeness; to break free of the depression and sadness he was enduring. The fact that he chose teenagers reveals his immaturity and fears of rejection from adult women.” The evidence did not support a finding that Mr. Misay was looking for a friend or for love.

Within minutes of an apparently random contact with the Persona, Mr. Misay was pushing the conversation in a sexual direction. Within 7 days he had set up the meeting at the hotel. “Companionship and love” may adequately characterize the ambitions Mr. Misay conveyed to Dr. Pugh. These terms do not match the ambitions disclosed by the evidence. I also bear in mind that Friesen cautioned courts not to use language that minimizes, normalizes, or eroticizes inherently violent conduct: at para 147.

[ 112 ] Finally, Dr. Pugh suggested that Mr. Misay was constrained by cultural prejudices that impaired his understanding of Canadian law. Dr. Pugh wrote as follows at Report p. 13: His current test answers, for the most part, suggest an awareness and a stated respect for the roles of women and girls in the Canadian culture and his responsibilities with regard to heterosexual relationships.

However, some cultural confusion regarding sexual knowledge and sexual mores suggest concerns (“Men need sex more than women – yes”; When women go around wearing a short skirt they are asking for trouble – yes.”) Counselling regarding this confusion, in my opinion, would be helpful. The brief report concerning Mr. Misay’s counselling from the Edmonton Mennonite Centre for Newcomers also mentioned that “cultural misunderstanding” may have contributed to his “illegal activities.” [ 113 ] Dr. Pugh did not elaborate on why these confusions had a cultural basis.

There was no evidence about the prevalence of the indicated beliefs in Filipino culture or even whether Mr. Misay identified these beliefs with Filipino culture. [ 114 ] Regardless, Mr. Misay had been warned by the police about sexual contact with minor females. If he hadn’t known, a year before the offence occurred he had been put on notice. [ 115 ] The text messages appended to the Agreed Statement of Facts demonstrate beyond a reasonable doubt that Mr. Misay knew that his conversations with the Persona were wrongful. D.

Pre-Offence and Post-Offence Factors [ 116 ] Some pre-offence and post-offence factors considered in sentencing do not relate directly to the offender’s degree of responsibility in committing the offence but may nonetheless be relevant to the offender’s blameworthiness or to the objectives appropriate to the offender’s sentence or both. 1. Pre-Offence Factors [ 117 ] Pre-offence factors include • age (particularly the youth of the offender – see Friesen at para 174 and R v Shrivastava , 2019 ABQB 663 , Antonio, J, as she then was, at paras 52-55) • criminal record. (

a) Age [ 118 ] Mr. Misay was 38 at the time of the offence. He was not a youthful offender, although Defence counsel described him as “relatively young,” which would not be inaccurate. He was not so old as to be past the “burn out” point, a matter that was not pursued on the evidence. (

b) Criminal Record [ 119 ] Mr. Misay has no criminal record. A lack of prior offences may go to rehabilitative potential or to restraint in punishment as the offender may be deterred by a lighter penalty: Shrivastava at para 71 . (

c) Good Character [ 120 ] There was a suggestion that Mr. Misay was of “good character” and that this had a mitigating effect. [ 121 ] Some letters were attached to the Defence Brief, from three friends of Mr. Misay who attested to his good character (“an honest, trustworthy, godfearing person,” “a hardworking, trustworthy person,” a good son and hardworking). Two letters were provided by his daughter. [ 122 ] Because of timing issues, the Crown did not have an opportunity to interview the authors of the letters and so urged that the probative value of the letters be diminished.

A further issue, extending from the cross-examination of Dr. Pugh, was that the extent of Mr. Misay’s disclosure of his activities to the authors could not be determined. [ 123 ] Setting these concerns aside, in my opinion, the letters had little mitigating weight. [ 124 ] I accept without reservation that Mr. Misay was very hardworking. He routinely worked two or three jobs and subsisted on very little sleep. [ 125 ] I also accept without reservation that Mr. Misay was responsible. He sent home $400-$500 per month to his parents.

He supported his daughter with payments of $200 per month. [ 126 ] What, however, is the relevance of “good character” to sentencing? [ 127 ] Justice Antonio observed in Shrivastava that prior “good character” is frequently taken to have a mitigating effect in sentencing but points out that this may be an unprincipled use of personal history evidence: see paras 72-93. [ 128 ] Justice Antonio also pointed out that obeying the law, an obligation we all bear, cannot be taken to earn credit against

punishment for commission of a serious offence.

See Shrivastava at para 78 : “This parallels the Court of Appeal’s conclusion in Arcand at paragraph 136 that ‘[i]t is difficult to see the logic of assigning mitigation credit for apparent prior compliance with social norms in the face of a serious sexual assault’.” [ 129 ] Moreover, in R v Hepburn , 2013 ABQB 520 at paras 36-37 , Justice Jeffrey confirmed that evidence of good character has low probative value in sexual offence cases: [36] In respect of the extensive letters attesting to Hepburn’s otherwise stellar character and conduct, I am mindful of these further comments of the Alberta Court of Appeal in BSM , at para 16: Turning to mitigating circumstances, the Reasons mention good character.

Likely it existed here, as the respondent’s previous criminal record was well over 20 years old. But previous good character is common in child sexual assault cases. So previous good character would not take one much below the starting point, nor significantly reduce what would otherwise be a higher sentence. [37] These crimes are committed by people from all walks of life, out of the public eye, clandestinely and secretly, often to the surprise of people who thought they knew the perpetrator best.

It cannot be that because of a person’s abundant good deeds and potential for societal contribution that they are given a free pass on a crime against another, that they can in a secret double life victimize the vulnerable of our society with impunity. The difficulty is that self-presentation in public and conduct in private may not match: see Shrivastava at paras 77-78 ; R v Jonat , 2019 ONSC 1633 , Dunphy J at para 63. [ 130 ] In my view, when third parties state that an offender’s offence was “out of character” (as did one of Mr.

Misay’s friends) what is really meant is that some extraordinary circumstances must have induced the commission of the offence. The illegal conduct was the product of some unusual and mitigating factors. Absent such factors, the offender never would have offended. That is, the reference to “good character” and to the offence being “out of character” is a means of pointing towards those unusual factors.

The difficulty is that such factors are not to be found on the evidence in this case. [ 131 ] I do accept that “good character” would tend to support a rehabilitative sentencing objective, since the offender should be disposed to comply with the terms of the disposition. 2. Post-Offence Factors [ 132 ] Post-offence factors include • guilty plea • cooperation with the authorities • pre-sentencing rehabilitative steps • remorse. [ 133 ] These factors tend to mitigate by showing remorse and insight into responsibility.

Remorse, in turn, shows that the offender is a good candidate for rehabilitation and shows that the objective of acknowledgement of harm and promotion of a sense of responsibility has already been at least partially fulfilled. [ 134 ] I approach these factors keeping in mind the comments of the Court of Appeal in R v Gejdos , 2017 ABCA 227 at para 40 : [40] “Responsibility”, however, is still primarily informed by the circumstances existing at the time of the offence, not whether the offender was subsequently remorseful or rehabilitated.

That is particularly the case with an offence like impaired driving, which is often committed by otherwise upstanding citizens, with no prior criminal history, who subsequently realize fully the inappropriateness of their criminal behaviour. The moral culpability of such an offender is, however, primarily to be measured at the time they get behind the wheel while impaired, and make the selfish and dangerous choice to drive on the public highways. (

a) Guilty Plea [ 135 ] Friesen confirmed that “[a] guilty plea is a recognized mitigating factor.” Friesen also confirmed, though, that the weight of a guilty plea may be diminished if the Crown’s case is “overwhelming:” at para 164; see R v TF , 2019 SKCA 82 at paras 45-46 . The timing of a guilty plea is also relevant.

Generally, the earlier the guilty plea, the stronger its mitigating weight (e.g. as a “sincere indication of remorse”): see R v Cowell , 2019 ONCA 972 , Trotter JA at para 102; TF at para 44. [ 136 ] In this case, the guilty plea came relatively late, in October 2020, some 15 months after the preliminary inquiry, and a few weeks before the scheduled trial dates of November 2-6, 2020. One might add that no actual victim was spared the trauma of testifying. [ 137 ] The Crown contended that the Crown case was overwhelming. Mr. Misay had sent his photo to the Persona.

He was arrested at the hotel, the location planned for the sexual contact. He confessed. His cellphone was seized and searched and disclosed the conversations between him and the Persona. [ 138 ] The Defence contended in response that there were serious difficulties with the warrant supporting the cellphone search and with post-search procedures. [ 139 ] The Crown argued, though, that even if the search and seizure were set aside, Mr. Misay’s identity as the sender of the messages to the Persona could be established circumstantially, through (e.g.) the messages in the possession of the police (received by

the undercover operator), Mr. Misay’s photo, and Mr. Misay being found at the arranged location. [ 140 ] In any event, I note the comments by our Court of Appeal in SLW at paras 32-35 : [32] Courts treat guilty pleas as mitigating because they are “a genuine demonstration of remorse and a positive step towards rehabilitation”: R v Gaya , 2010 ONSC 434 at para 53 ….

A guilty plea also mitigates because it saves judicial resources and it eliminates the uncertainties inherent in the trial process: R v Edgar , 2010 ONCA 529 at para 111 …. [33] The Crown urges that we give the guilty plea minimal credit because the Crown’s case was overwhelming. While we accept that a guilty plea in the face of a weak Crown case is often especially mitigating, it does not follow that a guilty plea in the face of a strong Crown case is of little value.

No matter how strong the case, a guilty plea is the waiver of the most fundamental right of any criminal accused: the right to put the Crown to its proof at a fair and public trial. No matter how strong the case, a guilty plea remains a sign of remorse. And no matter how strong the case, a guilty plea spares victims the trauma of testifying in open court. Experience also teaches that even those prosecutions that seem overwhelming may encounter unforeseen obstacles that make it hard to prove the case beyond a reasonable doubt, such as the death of a key witness.

A guilty plea offers certainty in a process where there is always litigation risk. A guilty plea always has some value. [34] Many cases against the accused are overwhelming because – as in this case – the accused has confessed to investigators.

Sentencing judges typically give greater credit for earlier guilty pleas because they reflect an earlier acceptance of responsibility; it would be ironic indeed if an offender were afforded less credit for a guilty plea because they had accepted responsibility at one of the earliest stages possible, during their interview with the police. [35] On a more practical level, guilty pleas have always served the utilitarian function of conserving scarce court and prosecution resources.

Particularly in the post- Jordan era, we would be reluctant to adopt any principle that is a disincentive to accused persons taking responsibility for their actions and instead, perversely, operates as an incentive to “roll the dice” at trial because a guilty plea offers little mitigation when the Crown’s case is strong …. [ 141 ] Even if, in the circumstances, the weight of the guilty plea should be somewhat diminished, I find that the guilty plea provides substantial mitigation. (

b) Cooperation with the Authorities [ 142 ] As indicated at para 34 of SLW , cooperation with the police through confession is a mitigating factor. Cooperation concretely demonstrates taking responsibility for the offence: TF at paras 44-45. [ 143 ] In this case, Mr. Misay cooperated with the authorities on arrest. He confessed, admitting the essential elements of his offence. [ 144 ] That cooperation supports substantial mitigation. (

c) Remorse and Rehabilitative Steps [ 145 ] Friesen also confirmed that remorse is a mitigating factor, but its weight increases when “paired with insight” and with signs that the offender has changed his attitude and has taken steps to reduce the likelihood of further offending: at para 165. An offender, for example, may have, on his or her own, taken steps to address the “root causes” of his or her offending, as by attending addictions treatment or counselling. [ 146 ] Defence counsel properly referred to Arcand at para 293 : [293] The reasons indicate that the principle of restraint, as reflected in ss. 718.2 (

d) and (e), was thought very weighty .... Additional restraint is also invited for persons who spontaneously acknowledge their culpability, have genuine remorse and seek voluntarily to make reparations. These considerations do not apply to this offender. [ 147 ] Mr. Misay is, by any measure, extremely remorseful. He expressed this to the Court in his s. 726 statement and in a letter appended to the Defence Brief. His daughter’s letters also attest to his remorse. Dr.

Pugh wrote the following at Report p. 16: “With regard to remorse and shame, as noted above, his shame is intense and palpably painful for him to endure. I believe that he truly regrets his conduct.” Also at p. 16, Dr. Pugh wrote that Taking all of these factors into account, I do not believe that he is at risk to repeat this type of conduct or, if there is a risk, it is not high. The shock and shame of being caught, charged and convicted has been extremely devastating for Mr. Misay. This alone, in my opinion, will prevent him from similar conduct in the future. I find that Mr.

Misay is completely sincere and wholly accept that he is remorseful. [ 148 ] The anxiety and remorse Mr. Misay has experienced would tend to show that further measures are not necessary to effect his individual or specific deterrence. [ 149 ] Mr. Misay’s remorse was reflected in his guilty plea and his cooperation with the authorities. He has also attended counselling with Edmonton Mennonite Centre for Newcomers, attending some 20 sessions starting June 17, 2019. I acknowledge, as the Crown pointed out, that these sessions did not deal with the “root causes” of his offending.

These were not sessions concerning sexual offending but concerning his post-arrest anxiety and depression. [ 150 ] The nature of the counselling does reduce the mitigating effect of this aspect of remorse, but overall, Mr. Misay’s remorse is a significant mitigating factor.

(

d) Community Support [ 151 ] Mr. Misay’s friends provided letters of support. Mr. Misay attends Church regularly. His daughter wrote letters to support him, at least validating his remorse. He is in a romantic relationship with Mr. Licun. [ 152 ] Again, we do not know what these parties know about Mr. Misay and the offence. We do not know what Mr. Misay has disclosed to them. [ 153 ] Nonetheless, the letters provide some evidence of community support. Community support does not lower the gravity of an offence or the degree of responsibility of an offender but does aid the rehabilitative objective of punishment.

Without community support, left alone to work out the future, an offender is more likely to fail than if he has the assistance of others and if he has some prosocial outlets and relationships. [ 154 ] Dr. Pugh wrote as follows at Report p. 16: Further, and to his credit, he has shared the nature of his wrong-doing with people who care for him. They have forgiven him but they too, from my observations, have clearly represented the disappointment of the community, in their conversations with him. As well, his girlfriend, Ms. Licuan, age 37, presents very well and remains supportive of him.

It appears that his love and relationship-needs are being met by this lady which lowers his risk (even further) for a re-offense. (

e) Compliance with Bail Conditions [ 155 ] Mr. Misay has complied with his bail conditions for three years without incident. In my view, this goes to show a lack of aggravating circumstances or the lack of a factor tending to show that rehabilitation would be inappropriate, as opposed to showing a mitigating factor. [ 156 ] Compliance with bail conditions has been held not to be a mitigating circumstance. In R v Godfrey , 2018 ABCA 369 at para 16 , the Court of Appeal referred to this as a neutral factor. The Manitoba Court of Appeal noted in R v McMillan (BW) , 2016 MBCA 12 at para 28 that bail is not jail. Mr.

Misay was not held under onerous conditions like house arrest. [ 157 ] I acknowledge that Justice Burrows considered compliance with bail conditions to be a mitigating factor in R v Massey , 2021 ABQB 146 at paras 81-82 . But in the present case as in McMillan , the evidence did not suggest that Mr. Misay suffered significant hardship because of the conditions of judicial interim release. D. Risk of Re-Offending [ 158 ] The higher the risk of re-offending, the greater the concern for sentencing purposes.

A high risk of re-offending may engage the objective of separation or incapacitation for the sake of public safety. Specific or individual deterrence, stopping this offender from re- offending, would be engaged by a high risk of re-offending. The lower the risk of re-offending, the more appropriate lower periods of imprisonment or non-custodial dispositions: Friesen at paras 122-124 . [ 159 ] A sentence, regardless, must remain proportionate to the offence committed. [ 160 ] Dr. Pugh completed the Static-99R instrument respecting Mr. Misay. Mr.

Misay’s score was moderate high (or high moderate) – an above average risk of reoffending. The recidivism risk was 11.4% over 5 years. In cross-examination, Dr. Pugh confirmed that under the new version of this instrument, Mr. Misay would have scored at level 4(a), or at above average risk (at the higher end of above average risk). [ 161 ] The primary factor driving this risk of reoffence was that, on another Indictment, Mr. Misay faced a group of charges involving three actual minor female complainants (not “sting” circumstances).

Evidence of other offences relevant to the application of sentencing principles or objectives is, if the facts are established beyond a reasonable doubt, properly considered in sentencing. See R v Angelillo , 2006 SCC 55 , Charron J at paras 27, 30, 32. In this instance, the Defence admitted the existence of the other charges. The admissibility of the other charges, however, was limited to the issue of Mr. Misay’s risk of reoffending. [ 162 ] Dr. Pugh also completed the Sex Offender Need Assessment Rating (or SONAR) instrument for Mr. Misay.

This risk assessment is based on information received from the person assessed. It has no “lying scale” (or validity scale). Dr. Pugh considered Mr. Misay’s risk of reoffence under this instrument as “low.” [ 163 ] In testimony, Dr. Pugh suggested that Mr. Misay’s attendance at counselling would lower his risk of reoffending, as would his “mental health.” [ 164 ] In cross-examination, Dr. Pugh confirmed that • he had only briefly interviewed Mr. Misay’s girlfriend (about 15 minutes), without investigating the information about his offences that Mr.

Misay actually provided to her – and at the time of this interview, Dr. Pugh was not aware of Mr. Misay’s additional charges • he did not review the text messages appended to the Agreed Statement of Facts • the fact that Mr. Misay was warned about contact with minor females and did not heed that warning adds to his risk • he did not interview Mr. Misay’s daughter, who would have been a good collateral source of information about Mr. Misay

• a complete risk assessment involves interviews with key people or collateral sources • he did not obtain information about the additional charges involving the three young complainants • the only medical records about Mr. Misay that he accessed was one letter from a Drayton Valley psychologist and the Mennonite Centre confirmation of counselling • Mr. Misay has not received treatment for sexual offending • Mr. Misay had demonstrated some lack of insight into the gravity of his offending, which would increase his risk • Mr.

Misay had not disclosed the other offences to him. [ 165 ] I find, beyond a reasonable doubt, that the Static 99-R risk assessment is reliable and demonstrates that Mr. Misay poses an above-average risk to reoffend. I find, beyond a reasonable doubt, that the risk assessment based on the SONAR instrument was not reliable and that Mr. Misay’s risk of reoffending is not low. Dr. Pugh did not have sufficient information from collateral sources or medical records to support the lower risk assessment conclusion. The SONAR instrument depends on self-reporting and Mr. Misay was not forthright with Dr.

Pugh. [ 166 ] Defence counsel pointed out - and I accept this as a common-sense observation - that Mr. Misay has not reoffended over the three years he has been on bail. That would be some evidence tending to show that Mr. Misay is not at risk to reoffend. Defence counsel also pointed out (and I accept this proposition as true) that the longer an offender refrains from reoffending the more likely that the offender will not reoffend. [ 167 ] The Static 99-R test, however, was performed in early April, 2021, not long ago.

It purports to be an assessment of present risk. [ 168 ] The complementary common-sense observation concerning offending on bail is that while on bail Mr. Misay has been, in effect, under State surveillance through the medium of conditions of release and bail supervision. How one behaves when under surveillance and how one behaves when one is not are different matters. This goes to the private and hidden nature of sexual offending, particularly sexual offending over the Internet.

Defence counsel’s observation has some weight, but does not displace the inference of above average risk supported by the Static 99-R result. E. Actual Impact/Collateral Consequences [ 169 ] “Collateral consequences,” the actual impact of the sentence on the individual, is also a relevant factor in sentencing. However, the peculiar effects of a sentence on an individual do not justify a disproportionate sentence, particularly one that is excessively lenient.

Actual effects may be taken into account in determining sentence, so long as the sentence remains proportional: SLW at para 39 ; Morrisey at para 41 ; Shrivastava at paras 61, 64, 66, 67 . Peculiar effects can be taken into account in pulling a sentence toward the lower edge of penal severity of a proportionate punishment. [ 170 ] Two types of collateral consequences arose in argument, concerning COVID and immigration consequences for Mr. Misay. 1. COVID [ 171 ] In R v EF , 2021 ABQB 272 , Justice Burrows wrote as follows at para 79: [79] I also accept Mr.

Engel’s submission that the current and ongoing Covid-19 pandemic and the consequences it has for inmates both at the ERC and in federal penitentiaries will make EF’s sentence harsher that it would otherwise be. I agree that this should be reflected in the sentence I impose. [ 172 ] I will not mitigate Mr. Misay’s sentence because of COVID. There was no evidence about current pandemic conditions in Alberta penal institutions or federal penal institutions. There was no evidence that Mr. Misay is particularly susceptible to COVID because, e.g., of a pre-existing health condition. 2.

Immigration Consequences [ 173 ] A far more serious set of concerns, in my view, are the adverse immigration consequences faced by Mr. Misay. I accept that Mr. Misay’s immigration circumstances were as described by Defence counsel. Mr. Misay is a permanent resident. If Mr. Misay were to receive a sentence of 6 months or more he may be deported without a right of appeal. He would leave behind his daughter. [ 174 ] While I must proceed cautiously and respectfully in weighing the effects on Mr.

Misay of being deported from the country that is now his home, there are some factors diminishing the adverse effects of Mr. Misay leaving Canada: • his daughter is living with his estranged ex-wife • he would return to his parents, who remain in the Philippines • in the Presentence Report, he referred to the farming occupation he would take up if he returned to the Philippines • he would not be returned to torture or police custody or to a country with a dismal human rights record • he has been in Canada since 2015, not his whole life

• he was born in the Philippines, did a University degree there, and worked there after graduation • he continued to visit the Philippines prior to his charges. [ 175 ] I do not discern humanitarian and compassionate grounds in Mr.

Misay’s case that approximate those discussed in R v Chang , 2019 ONCA 924 at para 13 : [13] Because the appellant is a permanent resident and a prison sentence of longer than six months was imposed, on the fresh evidence, if he is found inadmissible to Canada on the grounds of serious criminality, he will have no right of appeal to the Immigration Appeal Division (IAD) and, almost certainly, be deported: Immigration and Refugee Protection Act , S.C. 2001, c. 27, ss. 36(1) (a), 64 . If deported, the appellant will be returned to Taiwan, where he has no connection and has not lived since he was a very young child.

He has lived in Canada for virtually his whole life. His family, employment and support systems are here in Canada. [ 176 ] Further, while a period of imprisonment in excess of 6 months would have a significant impact on the financial support Mr. Misay can provide for his parents and daughter, disruption of employment is a normal consequence of imprisonment and cannot ordinarily be considered exceptional: Godfrey at para 16 ; Shrivastava at paras 61, 64, 66 . Mr. Misay is not the sole economic support either for his parents or his daughter. F.

Sentencing Objectives [ 177 ] Factors relevant to the assessment of the gravity of an offence and the degree of responsibility of an offender in committing the offence may engage particular sentencing objectives. For example, the more serious the offence and the higher the degree of responsibility associated with committing that offence, the stronger the link to the objectives of denunciation and deterrence, which, in turn may attract more severe punishment in the form of longer periods of imprisonment. [ 178 ]

Section 718.01 confirms the seriousness of offences involving the abuse of children and provides an “ordering” of sentencing objectives for such offences (see Friesen at paras 101-102 ): 718 .01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. [emphasis added] At para 104 of Friesen , the Supreme Court stated that for offences falling within s. 718.01, a sentencing judge does not have authority to priorize the sentencing objective or objectives on a case-by-case basis. This

section limits judicial discretion, “such that it is no longer open to the judge to elevate other sentencing objectives to an equal or higher priority.” [ 179 ] Nonetheless, the Supreme Court also confirmed at para 104 that despite s. 718.01, “the sentencing judge retains discretion to accord significant weight to other factors (including rehabilitation and Gladue factors) in exercising discretion in arriving at a fit sentence, in accordance with the overall principle of proportionality ....” [ 180 ] A just sanction must be proportional, regardless of the objective or objectives served by the sanction. G. Parity of Sentences [ 181 ]

Section 718.2(

b) provides that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” This paragraph evokes the principle of parity. See Friesen at paras 31-33 ; Lacasse at para 2 . [ 182 ] Friesen , though, directs attention away from sentences in earlier cases and stipulates that sentences for sexual offences against children should be increased.

Friesen states that an “upward departure from prior precedents and sentencing ranges may well be required to impose a proportionate sentence:” at para 107. [ 183 ] The upward departure is supported for two main reasons. First, Friesen confirms that the understanding of the wrongfulness and harmfulness of sexual offences against children has deepened, as discussed earlier: at para 110.

Precedent may be “dated” and even recent decisions may rely on dated precedents. [ 184 ] Second, the Court aligned itself with Parliament’s approach to sentencing for sexual offences against children. (In R v Lemay , 2020 ABCA 365 , the Court of Appeal wrote as follows at para 42: “Parliament has responded; the courts must as well.”) Friesen commented on maximum sentences for offences and on increases in maximum sentences as supporting increased sentences (see, e.g., paras 98, 100). [ 185 ] Friesen acknowledged two Parliamentary initiatives respecting sentencing for sexual offences against children.

Parliament has increased maximum penalties for sexual offences against children. Maximum sentences are “one of Parliament’s principal tools to determine the gravity of [an] offence:” at para 96. An increase to maximum sentences shows that Parliament wants these offences punished more harshly: at paras 97, 99; see Lacasse at para 7 . The last set of increases occurred in 2015.

At para 100, Friesen directed that “[t]o 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.” See also para 109 and Lemay at para 48 . [ 186 ] In addition, Parliament added s. 718.01 to the Criminal Code in 2005. This

section “confirms the need for courts to impose more severe sanctions for sexual offences against children:” Friesen at para 101 . [ 187 ] Appropriate sentencing comparator cases, then, should be post-2015 and post- Friesen . [ 188 ] And as mentioned earlier, the Court indicated at para 114 that “mid-single digit penitentiary terms for sexual offences against children are normal and ... upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or

exceptional circumstances.” [ 189 ] Justice Michalyshyn provided a very helpful review of recent decisions at paras 15-35 of Jissink . I refer to my review in Melrose at paras 347-349 . I look in particular to the Court of Appeal’s comment in Hajar that a range of 2-4 years “might well be justified in order to deter and denounce adult sexual offenders who view children as easy prey:” at para 167. Justice Moldaver referred to a range of 3-5 years in R v Woodward , 2011 ONCA 610 at para 58 .

Woodward was favourably cited in Friesen . [ 190 ] Jissink itself provides some useful guidance respecting the one-year sentence for the offender in that case, as at (e.g.) para 74: [74] To return to circumstances of the offence, Parliament and the courts have spoken loudly and clearly with regard to the seriousness of sexual offences against children including the offence of luring under s 172.1(1). The facts of this case leading the Mr. Jissink’s conviction, while not the worst, are still serious. So too are the circumstances that surround the conviction. Mr.

Jissink’s misconduct was relatively brief and by reason of a degree of intoxication, impulsive. He sent not one but two Snapchat messages. He says he does not recall either, yet by some means he informed himself and the next day apologized. It was not the first time he communicated to young person in a similar fashion. And while he was to some degree intoxicated, his misconduct on January 1, 2017 was intentional – it was clearly sexual in nature, and it was undertaken for the specific purpose of facilitating the commission of a specified secondary offence. Yes, it could have been worse.

But that no such offence was committed or even attempted hardly reduces Mr. Jissink’s moral culpability for luring, if it does at all. The misconduct of luring and of any enumerated secondary offence are legally and morally distinct. And, yes, the luring itself could have been more aggravated. But were that the case, in my view Mr. Jissink would have faced a sentence more severe than incarceration for a period of one year. III. The Fit Sentence for Mr. Misay [ 191 ] In my opinion, the significant gravity of the offence and Mr.

Misay’s unmitigated blameworthiness or responsibility for the offence would attract, other considerations aside, a sentence of 3 years imprisonment. He was a deception away from sexual contact with a 15-year old, having lured her from Edmonton to a Drayton Valley hotel. He had been warned by the police about contact with minor females a year before but he ignored that warning. [ 192 ] I have taken into account that Mr. Misay poses an above-average risk of reoffending, based on his other charges. [ 193 ] Deterrence and denunciation are the primary objectives that must be served by Mr.

Misay’s sentence, but I also acknowledge that his hard work and responsibility to his family support the rehabilitation objective, as does the fact that he has supports in the Edmonton area. [ 194 ] I have kept in mind the principle of restraint in s. 718.2(

d) and that available sanctions other than imprisonment under s. 718.2(

e) should be considered for Mr. Misay. I recognize that I must do justice in his case for him and that I have the authority and responsibility to do so, confirmed in Friesen . [ 195 ] I have taken into account his lack of criminal record, his guilty plea, and his obvious and deep remorse. He does not require specific deterrence. I have considered that Mr.

Misay faces deportation without appeal, although that consequence, in the circumstances, does not justify departing from a proportional sentence or a substantially lower sentence than would otherwise be demanded. [ 196 ] In my opinion, the appropriate sentence for Mr. Misay in all the circumstances is 15 months imprisonment followed by 2 years probation.

The terms of probation will be spoken to and confirmed. [ 197 ] I understand from counsel that there is no credit for pre-trial custody to offset against the period of imprisonment. [ 198 ] I hereby also grant the following ancillary Orders: • an Order requiring Mr. Misay to provide a sample of his DNA for inclusion in the DNA data bank pursuant to s. 487.051 of the Criminal Code (primary designated offence); • an Order of prohibition pursuant to s. 161(1) of the

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