R v Melrose, 2021 ABQB 73

Court of Queen’s Bench of Alberta Citation: R v Melrose, 2021 ABQB 73 Date: 20210201 Docket: 171024508Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Michael Mathew Melrose Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that may identify the victim must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the identification ban. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice W.N. Renke _______________________________________________________ [This decision was delivered orally, in abbreviated form, in accordance with R v Lawrence, 2020 ABCA 268 at paras 21 – 24 . A copy of the full reasons was filed with the Court and provided to the parties.

I reserved the right to make grammatical and stylistic changes and to correct typographical errors.] [ 1 ] Mr. Melrose pled guilty to two counts on an Indictment averring that he between July 7, 2017 and July 12, 2017, at or near Edmonton, Alberta

• did, for a sexual purpose, unlawfully touch, directly or indirectly, with a part of the body or with an object, a part of the body of[the Complainant], a person under the age of sixteen years, contrary to

section 151 of the Criminal Code of Canada (count 2), and • did, by means of telecommunication, communicate with a person who was, or who the accused believed was, under the age ofsixteen years, for purpose of facilitating the commission of an offence under

section 151 ... with respect to that person, contrary to section172.1(1)(

b) of the Criminal Code of Canada (count 3). [2] Mr. Melrose was 27 years old. The Complainant was 13. Mr. Melrose and the Complainant had sexual intercourse once. Mr.Melrose suffers from a significant permanent cognitive impairment. His mental age falls between 8 ½ to 11 years old. [3] The mandatory minimum sentence for the s. 151 offence was struck down by the Court of Appeal in R v Ford, 2017 ABCA87 at paras 13-18. Mr. Melrose must be sentenced for this offence. [4]

Section 172.1(2)(

a) establishes a mandatory minimum sentence of imprisonment for a term of one year for commission of anoffence under s. 172.1(1)(b). Mr. Melrose filed a constitutional challenge to the mandatory minimum sentence. I must determine whetherthe mandatory minimum sentence violates Mr. Melrose’s right not to be subjected to cruel and unusual punishment, as protected under s.12 of the Charter. Mr. Melrose must be sentenced for this offence as well. [5] The Crown submits that the s. 172.1(2)(

a) mandatory minimum sentence does not violate s. 12 of the Charter. A sentence ofone year imprisonment is not grossly disproportionate to the sentence appropriate for Mr. Melrose’s circumstances or an offencecommitted in reasonably foreseeable circumstances. The Crown urges a sentence for Mr. Melrose of 24 months incarceration, being oneyear imprisonment for each offence, consecutive, followed by three years probation: Crown Brief at paras 1, 65, 67, 81. [6] The Defence urges a sentence of imprisonment in the intermittent range of 30-90 days for the s. 151 offence and 3 yearsprobation for the s. 172.1(1)(

b) offence: Defence Brief at paras 31, 135. [7] After briefly reviewing the sentencing framework and the Supreme Court’s guidance for sexual offence sentencing in R vFriesen, 2020 SCC 9, I will follow the process set out in R v Nur, 2015 SCC 15 at para 46. I will determine the proportionate sentencesfor Mr. Melrose. I will then determine whether the mandatory minimum sentence for the s. 172.1(1)(

b) offence would be a “grosslydisproportionate” sentence for Mr. Melrose. If not, I will consider whether the mandatory minimum sentence would be grosslydisproportionate in reasonably foreseeable applications of s. 172.1(1)(b). See R v Morrison, 2019 SCC 15, Moldaver J at para 144; R vHilbach, 2020 ABCA 332 at para 35; R v EJB, 2018 ABCA 239, leave app denied , at paras 56-57; Ford at para 10;R v Stephenson, 2019 ABCA 453 at para 13. [8] The Crown has not advanced a s. 1 argument, should I find that the mandatory minimum sentence limits s. 12: Crown Briefat para 48. Table of Contents I. Sentencing Framework. 5 A.

Proportionality. 5 1. Dimensions of Proportionality. 5 2. Assessing the Gravity of the Offence. 6 3. Assessing the Degree of Responsibility. 7 4. Proportionality and Sentencing Objectives. 8 5. Proportionality and Parity. 8 6. Proportionality and Restraint 9 B. Pre-Offence and Post-Offence Factors. 9 1. Pre-Offence Factors. 9 2. Post-Offence Factors. 10 3. Risk of Re-Offending. 11 C. Actual Impact 12 II. Sexual Offences Against Children. 12 A. Particular Statutory Rules. 12 B. Friesen’s Lessons. 13 1. Scope. 13 2. Sexual Offences Against Children and Proportionality. 14

3. Factors Bearing on a Fit Sentence . 15 4. Increased Sentences . 16 5. More Severe Punishment for Sexual Offences Against Children vs. Adults . 17 6. Similar Treatment for Sexual Interference and Sexual Assault 17 7. No Specified Length of Sentence . 17 C. Friesen and Sentencing Principles . 17 III. Facts and Evidence . 19 A. The Events . 20 B. Mr. Melrose’s Circumstances . 21 1. Early Years Assessments . 22 2. Capacity Assessment Report, 2017 . 22 3. Mental Health Update, 2020 . 23 4. Dr. Marc Nesca . 23 5. Additional Pre- and Post-Conviction Factors . 29 IV. Proportionate Sentences for Mr.

Melrose: Assessment 30 A. Discussion . 30 1. Mr. Melrose’s Conduct 30 2. The Messages . 35 3. Mr. Melrose’s Cognitive Abilities . 36 4. Risk of Reoffending . 38 5. Actual Impact 39 B. Sentences . 40 1. Sentencing Positions of the Crown and Defence . 40 2. Factors Applicable to Both Offences . 40

Section 151 Offence . 44 3.

Section 172.1(1)(

b) Offence . 48 V. Mandatory Minimum Sentence for the s. 172.1(1)(

b) Offence . 57 A. Test 58 B. Factors . 59 1. Seriousness of the Offence and Denunciation and Deterrence . 59 2. Seriousness of the Offence and Baseline Blameworthiness . 61 3. Other Cases and Other Offences . 63 C. Cruel and Unusual? . 63 VI. Sentences . 64 A. Count 2 and 3 Sentences . 64 B. Terms of Probation Order 64 VII. Ancillary Orders . 64 A. Victim Fine Surcharge . 64

B. DNA Order 64 C. SOIRA Order 64 D. Firearms Prohibition . 64 E.

Section 161 Order 65 F. Forfeiture . 65 I. Sentencing Framework [ 9 ] A review of the sentencing framework is warranted since the issue of whether the mandatory minimum sentence violates s. 12 requires a comparison to the proportionate sentence for Mr. Melrose and proportionality is embedded in the sentencing framework, and since Mr. Melrose must be sentenced for both offences. [ 10 ]

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 (it might go without saying) a sanction provided by law and is, importantly, a proportionate sanction. Fourth, s. 718 provides that just sanctions serve one or more of the objectives listed in s. 718, and thereby promote the fundamental purpose of sentencing. The objectives set out in s. 718 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. [ 11 ] I will discuss some features of the sentencing framework, particularly respecting proportionality and particularly relevant to Mr. Melrose’s circumstances. A. Proportionality 1. Dimensions of Proportionality [ 12 ] 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 . [ 13 ] A “just” sanction is a proportionate sanction.

A proportionate sentence is “just” because the punishment “fits” the crime. The punishment must be neither excessive nor inadequate. Proportionality ensures that the punishment is what the offender “deserves.” [ 14 ] Proportionality has two dimensions, captured in s. 718.1 of the Criminal Code : A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Justice Wagner described proportionality in this way in R v Lacasse , 2015 SCC 64 at para 12 : The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender.

See R v Ipeelee , 2012 SCC 13 , LeBel J at paras 36, 37. [ 15 ] The “gravity of the offence” concerns what the offender did wrong: R v Arcand , 2010 ABCA 363 at para 57 . [ 16 ] The “degree of responsibility” concerns the moral culpability of the offender in committing the offence. [ 17 ] That is, the “gravity” aspect focuses on the act and its consequences or on what was done and the “responsibility” aspect focuses on the actor, how the act was done, why the act was done, and by whom the act was done. [ 18 ] As s. 718.2(

a) directs, the assessment of the gravity of the offence and the degree of responsibility of the offender is informed by “any relevant aggravating or mitigating circumstances relating to the offence or the offender.” Justice Kalmakoff wrote as follows in

R v TF, 2019 SKCA 82 at para 54, [54] …. In this way, s. 718.2(

a) dovetails with the fundamental principle of proportionality. Mitigating factors are those which tend todecrease either the gravity of the offence or the degree of responsibility of the offender. Aggravating factors are those which tend toincrease the gravity or degree of responsibility. [19] Since offences are committed in particular circumstances by particular individuals, it follows that the determination of aproportionate sentence is “highly individualized:” Nur at para 43.

That is, an effect of proportionality is the individualization or case-by-case determination of sentences: R v Ramsay, 2012 ABCA 257 at para 20; Arcand at para 66; R v Suter, 2018 SCC 34 at para 4. 2.

Assessing the Gravity of the Offence [20] 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 and (ultimately) national communities and to social values –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 potential wrongfulness and harm associated with anoffence (see Friesen at para 96) • as provided in s. 718.2(a), “aggravating or mitigating circumstances relating to the offence or the offender.” 3.

Assessing the Degree of Responsibility [21] The degree of responsibility goes to the offender’s level of fault in committing the offence. Chief Justice Fraser commented inR v Laberge,1995 ABCA 196 at para 7 that “for sentencing purposes, one must make a clear distinction between fault in terms of anoffender’s mens rea at the time of commission of an offence and fault in terms of the offender’s overall moral blameworthiness for thecrime.

The two are not the same.” The Court of Appeal confirmed in Hamlyn at para 12 that “[t]he greater the harm intended or thegreater the degree of recklessness or wilful blindness, the greater the moral culpability: Arcand, 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. (

a) Psycho-Social Factors [22] Psycho-social factors may affect an offender’s culpability, specifically his or her decision-making. If an offender has beenexposed to anti-social behaviour, if the exposure was broad and long, the offender may have learned a repertoire of only anti-socialbehaviours and little else. The offender’s practical possibilities of action or horizons of actions may be limited.

Further, chronic exposureto bad decision-making by others and lack of reinforcement of good decision-making may make it easier for an offender to make baddecisions or to make decisions without consideration of consequences. Justice LeBel wrote as follows in paras 73 and 77 of Ipeelee: [73] First, systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or herlevel of moral blameworthiness …. Canadian criminal law is based on the premise that criminal liability only follows from voluntaryconduct.

Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities andlimited options for positive development. While this rarely - if ever - attains a level where one could properly say that their actions werenot voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish theirmoral culpability. As Greckol J. of the Alberta Court of Queen’s Bench stated, at para. 60 of R. v. Skani, 2002 ABQB 1097, 331 A.R. 50,after describing the background factors that lead to Mr.

Skani coming before the court, “[f]ew mortals could withstand such a childhoodand youth without becoming seriously troubled.” Failing to take these circumstances into account would violate the fundamentalprinciple of sentencing — that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of theoffender. The existence of such circumstances may also indicate that a sanction that takes account of the underlying causes of thecriminal conduct may be more appropriate than one only aimed at punishment per se …. [emphasis in original] [77] ….

Furthermore, there is nothing in the Gladue decision (SCC), [1999] 1 SCR 688] which would indicate thatbackground and systemic factors should not also be taken into account for other, non-Aboriginal offenders. Quite the opposite. Cory andIacobucci JJ. specifically state, at para. 69, in Gladue, that “background and systemic factors will also be of importance for a judge insentencing a non-aboriginal offender”.

See R v Shrivastava, 2019 ABQB 663, Antonio J, as she then was, at paras 83-84; Friesen at para 174 (a “traumatic and painfulchildhood involving physical, emotional and sexual abuse” as a mitigating factor). (

b) Factors bearing on Cognition and Decision-Making [23] Cognitive difficulties or mental illness falling short of supporting an NCR finding may dispose an offender to make poorchoices, choices made without sufficient assessment of the wrongfulness or harm that may flow from conduct. Those affected by suchfactors are, to that extent, less blameworthy than those not beset by such factors. Such offenders’ responsibility is diminished.

All otherthings being equal, the greater the magnitude of cognitive deficits, the lower the degree of responsibility: Morrison, Karakatsanis J atpara 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).

4. Proportionality and Sentencing Objectives [ 24 ] 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. [ 25 ] The Criminal Code priorizes the objectives of denunciation and deterrence for identified offences. See, e.g., ss. 718.01- 718.04. [ 26 ] A just sanction must be proportional, regardless of the objective or objectives served by the sanction. 5. Proportionality and Parity [ 27 ]

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. [ 28 ] The Supreme Court wrote as follows in Friesen at paras 31-33 : [31] Sentencing judges must also consider the principle of parity: similar offenders who commit similar offences in similar circumstances should receive similar sentences. This principle also has a long history in Canadian law …. [32] Parity and proportionality do not exist in tension; rather, parity is an expression of proportionality.

A consistent application of proportionality will lead to parity. Conversely, an approach that assigns the same sentence to unlike cases can achieve neither parity nor proportionality ( R. v. L.M. , 2008 SCC 31 , [2008] 2 S.C.R. 163, at paras. 36-37 ; R. v. Ipeelee ... at paras. 78-79 ). [33] In practice, parity gives meaning to proportionality. A proportionate sentence for a given offender and offence cannot be deduced from first principles; instead, judges calibrate the demands of proportionality by reference to the sentences imposed in other cases.

Sentencing precedents reflect the range of factual situations in the world and the plurality of judicial perspectives. Precedents embody the collective experience and wisdom of the judiciary. They are the practical expression of both parity and proportionality. See also Lacasse at para 2 . 6. Proportionality and Restraint [ 29 ]

Section 718.2 requires sentencing judges to take into account the following additional principles: (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

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; and (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. Paragraph (

c) evokes the “totality” principle, in its statutory form, dealing with consecutive sentences. It is complemented by a common law totality principle, dealing with (typically) several offences amounting to a “single transaction:” see R v Boucher , 2020 ABCA 208 at para 27 ; R v Ranger , 2014 ABCA 50 at paras 49-50 ; R v May , 2012 ABCA 213 at paras 7-15 . B.

Pre-Offence and Post-Offence Factors [ 30 ] Some pre-offence and post-offence factors considered in sentencing do not relate or 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 [ 31 ] Pre-offence factors include • age (particularly the youth of the offender – see Friesen at para 174 ) • criminal record. [ 32 ] If an offender’s age is close to the age of majority, an argument for reduced responsibility based on immaturity may (but not must) be available: see Shrivastava at paras 52-55 (describing circumstances when age would not mitigate). A younger offender may be a good candidate for rehabilitation. [ 33 ] An offender is not to be re-punished for past offences. A record for related offences, though, may be relevant to specific deterrence of the offender.

Past sentences have not educated the offender sufficiently. 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 .

[ 34 ] 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. 2. Post-Offence Factors [ 35 ] Post-offence factors include • guilty plea • cooperation with the authorities • pre-sentencing rehabilitative steps • remorse. [ 36 ] 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. [ 37 ] 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 TF 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. [ 38 ] Nonetheless, I note the comments by our Court of Appeal in R v SLW , 2018 ABCA 235 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 …. [ 39 ] As indicated at para 34 of SLW , cooperation with the police through confession is a mitigating factor.

The offender concretely demonstrated taking responsibility for his or her offence: TF at paras 44-45. [ 40 ] 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. 3.

Risk of Re-Offending [ 41 ] The higher the risk of re-offending, the greater the concern for sentencing purposes. [ 42 ] An offender cannot receive a disproportionate sentence just because there is a substantial risk that he or she will re-offend. The offender is sentenced for this offence, not potential offences. The dangerous offender and long-term offender proceedings are available should the offender’s conduct and disposition make “standard” sentencing inadequate. [ 43 ] A high risk of re-offending may engage the objective of separation or incapacitation for the sake of public safety.

Specific deterrence, stopping this offender from re-offending, would be engaged by a high risk of re-offending. Rehabilitation, the need for programming, may be engaged, but rehabilitation may require the secure setting of imprisonment. This issue was considered in Friesen at para 124 : [124] The offender’s likelihood to reoffend is clearly also relevant to the objective of rehabilitation in s. 718 (

d) of the Criminal Code . Courts should encourage efforts toward rehabilitation because it offers long-term protection ( Gladue , at para. 56 ). Rehabilitation may also weigh in favour of a reduced term of incarceration followed by probation since a community environment is often more favourable to rehabilitation than prison (see Proulx , at paras. 16 and 22). At the same time, depending on the offender’s risk to reoffend, the

imperative of providing immediate and short-term protection to children may preclude early release. In these cases, efforts atrehabilitation must begin with such treatment or programming as is available within prison (see R. v. R.M.S. (1997), (BC CA), 92 B.C.A.C. 148, at para. 13). In some cases, the only way to achieve both short-term and long-term protection of childrenmay thus be to impose a lengthy sentence (see R. v.

Gallant, 2004 NSCA 7, 220 N.S.R. (2d) 318, at para. 19, per Cromwell J.A., as hethen was). [44] A low risk of re-offending could incline towards lower periods of imprisonment or perhaps no imprisonment at all. But again,a sentence must still be proportionate. A sentence that is too low may be just as disproportionate as a sentence that is too high. C.

Actual Impact [45] The actual impact of the sentence on the individual is also a relevant factor, described in the cases as “collateralconsequences.” Once again, the peculiar effects of a sentence on an individual do not justify a disproportionate sentence (particularly onethat is excessively lenient). Actual effects may be taken into account in determining sentence, so long as the sentence remainsproportional. In SLW, the Court of Appeal wrote as follows at para 39: [39] ....

When determining the appropriate sentence for an individual offender, a court may take into account the collateralconsequences of the sentence or the underlying conviction, so long as the sentence imposed is proportionate to the gravity of the offenceand the degree of responsibility of the offender. This point was stated by Wagner J (as he then was), speaking for the Supreme Court in Rv Pham, 2013 SCC 15 at para 11, [2013] 1 SCR 739, a case dealing with the impact of a sentence on the immigration status of theoffender ....

The personal circumstances of an offender may cause a typically proportionate sentence to have a significantly disproportionate impacton that offender. A sentencing court may therefore consider the nature, conditions, and duration of a sentence as it affects the particularaccused: R v Morrisey, 2000 SCC 39 at para 41. II. Sexual Offences Against Children [46] Mr. Melrose has been convicted of two sexual offences against a child. The landscape of sentencing for sexual offencesagainst children has been modified by Friesen.

I will set out some important statutory provisions, describe the lessons of Friesen, thenpoint to some aspects of sentencing left untouched by Friesen. A. Particular Statutory Rules [47]

Section 718.2(

a) sets out provisions particularly applicable to sexual offences against children: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and …. (ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or theoffender’s family, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, includingtheir health and financial situation .... shall be deemed to be aggravating circumstances. [48]

Section 718.01 confirms the seriousness of offences involving the abuse of children and provides an “ordering” of sentencingobjectives 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 giveprimary 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 topriorize the sentencing objective or objectives on a case-by-case basis. This

section limits judicial discretion, “such that it is no longeropen to the judge to elevate other sentencing objectives to an equal or higher priority.” [49] Nonetheless, the Supreme Court also confirmed that despite s. 718.01, “the sentencing judge retains discretion to accordsignificant weight to other factors (including rehabilitation and Gladue factors) in exercising discretion in arriving at a fit sentence, inaccordance with the overall principle of proportionality ....” B.

Friesen’s Lessons [50] 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, the Chief Justice 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.” 1. Scope [ 51 ] 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). 2.

Sexual Offences Against Children and Proportionality [ 52 ] 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.

The Court elaborated on the wrongfulness and harm caused by these offences: at paras 50, 75. [ 53 ] Wrongfulness and harm must be gauged against the “prime interests” protected by the sexual offence legislative regime – “the personal autonomy, bodily integrity, sexual integrity, dignity, and equality of children:” para 51. (

a) Gravity of the Offence [ 54 ] The wrongfulness of sexual offences against children lies in the offences’ repudiation of the fundamental value of protecting children: at para 65. Instead of protecting children because of their vulnerability, offenders take advantage of children’s vulnerability to commit offences: at paras 64-67. The offences violate children’s rights to equality and dignity. [ 55 ] Applying force of a sexual nature to a child is inherently wrongful as it is inherently violent. The violence is aggravated by its sexual nature: at para 77.

Further, sexually exploiting a child is inherently wrong as it is inherently exploitative of the child’s vulnerability: at para 78. [ 56 ] Harm to children’s protected interests caused by sexual offences is not only physical but emotional and psychological: para 56. Children may be seriously harmed without being physically harmed: at para 82. [ 57 ] Harm may be potential or actual, and may manifest during childhood or later in adulthood: at paras 79-81. [ 58 ] Harm caused is a “key determinant” of the gravity of an offence. Evidence of actual harm must be considered in sentencing: at para 85.

Harm may not be apparent at the time of sentencing. The Supreme Court stated that “courts must consider the reasonably foreseeable potential harm that flows from sexual violence against children when determining the gravity of the offence:” at para 84. [ 59 ] Additional harm may be caused to children’s relationships with their families and caregivers and other social relationships: at paras 60, 61. [ 60 ] The “ripple effects” of sexual violence against children may make a child’s parents, caregivers, and family members “secondary victims:” at para 63. (

b) Degree of Responsibility [ 61 ] The wrongfulness and harmfulness of sexual violence against children must be taken into account in assessing the offender’s degree of responsibility: at para 87. [ 62 ] At para 88 of Friesen we read that “[i]ntentionally applying force of a sexual nature to a child is highly morally blameworthy because the offender is or ought to be aware that this action can profoundly harm the child.” The Court did not elaborate on the nature of the objective language, but went on to confirm that courts “must take into account the harm the offender intended or was reckless or wilfully blind to” (intention, recklessness, and wilful blindness are each subjective concepts). [ 63 ] Blameworthiness follows from the exploitation of the victim by the offender – “the offender is treating the victim as an object and disregarding the victim’s human dignity:” at para 89. [ 64 ] Further, blameworthiness is magnified because the victim is a child, by definition vulnerable: at para 90. (

c) No Actual Victim [ 65 ] Friesen dealt explicitly with police sting operations, when no child is actually injured or involved in the transactions leading to arrest. At para 93, the Court wrote 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.” Hence, the absence of victim does not diminish the offender’s degree of responsibility. [ 66 ] Further, the context of child luring offences is the “unprecedented access” sexual offenders have to actual children through the Internet. Child luring “should never be viewed as a victimless crime:” at para 94.

3. Factors Bearing on a Fit Sentence [ 67 ] In Friesen , the Court commented on a non-exhaustive list of factors relevant to sentencing for sexual offences against children. (

a) Risk of Reoffending [ 68 ] An enhanced risk of reoffending may engage the objective of separating the offender from society to ensure public protection. A low risk of reoffending may support a rehabilitative sentence with a lesser period of incarceration: at paras 122-124. (

b) Abuse of Position of Trust or Authority [ 69 ] Trust relationships exist on a spectrum. An offender’s place on the spectrum may vary over time: at para 125. A breach of trust increases harm to the victim and the gravity of the offence: at paras 126, 153. It also increases the offender’s degree of responsibility, by entailing the breach of a duty owed to the child not owed by a stranger: at para 129. “[A]ll other things being equal, an offender who abuses a position of trust to commit a sexual offence against a child should receive a lengthier sentence than an offender who is a stranger to the child:” at para 130. (

c) Duration and Frequency [ 70 ] Greater frequency and longer duration may increase harm: at para 131. Increased harm magnifies the gravity of the offence and increases the offender’s moral blameworthiness. (

d) Age of the Victim [ 71 ] Offences against younger victims have increased gravity because of the victims’ deeper vulnerability and demonstrate enhanced moral blameworthiness: at para 135. [ 72 ] 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 is 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.” (

e) Degree of Physical Interference [ 73 ] The degree of physical interference is an aggravating factor: at paras 138-139, 145. [ 74 ] However, the Court “strongly caution[ed] provincial appellate courts about the dangers of defining a sentencing range based on ... the specific type of sexual activity at issue.” Statute does not now distinguish between types of sexual acts. Such distinctions have been abolished and should not be revived in sentencing jurisprudence: at para 141.

Further, “courts should not assume that there is any clear correlation between the type of physical act and the harm to the victim:” at para 142. Emotional and psychological damage should not be underemphasized. See para 144. A “hierarchy of physical acts” should not be established: at para 146. [ 75 ] Friesen also cautioned courts not to use language that minimizes, normalizes, or eroticizes inherently violent conduct: at para 147. (

f) Victim Participation [ 76 ] Persons under age 16 cannot consent to sexual activity. Courts should therefore not analogize a child’s participation to consent. De facto consent is not and cannot be a mitigating factor, either respecting the gravity of the offence or the degree of responsibility of the offender: at para 149. There is no defence of “implied consent” in Canadian law: at para 151. Victim participation “is not a legally relevant consideration at sentencing:” at para 150. I note that this aspect of Friesen aligns with Alberta appellate jurisprudence.

See Hajar at paras 40, 52, 82-83, 88-94, 97-98, 102 ; EJB at para 42. [ 77 ] Victim participation does not mean that an offence is free from physical or psychological violence: Friesen at para 152 . The Court did observe that victim participation may “coincide with the absence of certain aggravating factors, such as additional violence or unconsciousness:” at para 150. The absence of an aggravating factor is not a mitigating factor. [ 78 ] Victim participation may be induced by grooming or a breach of trust.

These are aggravating factors: at para 153. [ 79 ] The Court confirmed that victim participation should not distract from adults’ responsibility to refrain from sexual violence against children. “Adults, not children, are responsible for preventing sexual activity between children and adults:” at para 154; see also EJB at para 42. 4. Increased Sentences [ 80 ] Friesen states that an “upward departure from prior precedents and sentencing ranges may well be required to impose a proportionate sentence:” at para 107. [ 81 ] 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 above: at para 110. Precedent may be “dated,” and even recent decisions may rely on dated precedents.

[82] Second, the Court aligned itself with Parliament’s approach to sentencing for sexual offences against children. (R v Lemay,2020 ABCA 365 at para 42: “Parliament has responded; the courts must as well.”) [83] Friesen confirmed two Parliamentary initiatives respecting sentencing for sexual offences against children. Parliament hasincreased maximum penalties for sexual offences against children. Maximum sentences are “one of Parliament’s principal tools todetermine the gravity of [an] offence:” at para 96.

An increase to maximum sentences shows that Parliament wants these offencespunished more harshly: at paras 97, 99; see Lacasse at para 7. The last set of increases occurred in 2015. At para 100, Friesen directedthat “[t]o respect Parliament’s decision to increase maximum sentences, courts should generally impose higher sentences than thesentences imposed in cases that preceded the increases in maximum sentences.” See also para 109 and Lemay at para 48. [84] In addition, as indicated above, Parliament added s. 718.01 to the Criminal Code in 2005. This

section “confirms the need forcourts to impose more severe sanctions for sexual offences against children:” at para 101. 5. More Severe Punishment for Sexual Offences Against Children vs. Adults [85] Friesen states that “[s]exual offences against children should generally be punished more severely than sexual offencesagainst adults:” at paras 107, 117.

By “generally,” I read the Court to qualify greater punishment by “all other things being equal” (so faras equivalences may be determined). [86] The Court looked to s. 718.01, the statutory identification of aggravating circumstances in s. 718.2(a)(ii.1) and (iii), and themaximum sentences for younger victims as opposed to older victims: at para 116. 6. Similar Treatment for Sexual Interference and Sexual Assault [87] Friesen directs courts not to discount sexual interference in comparison to sexual assault.

The offences have the samemaximum offences for victims under age 16, the elements of the offences are similar, and convictions can often be supported by thesame facts: at paras 119-120. 7. No Specified Length of Sentence [88] The Supreme Court declined to create a “national starting point or sentencing range for sexual offences against children:” atpara 106.

This is “best left to provincial appellate courts.” [89] However, at para 114, the Court indicated that “mid-single digit penitentiary terms for sexual offences against children arenormal and ... upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptionalcircumstances.” C. Friesen and Sentencing Principles [90] It is fair to observe that for sexual offences against children, Friesen marks an important stage in the evolution of sentencing.There is pre-Friesen and post-Friesen.

However, Friesen remains embedded in the traditional sentencing framework. [91] The overall point of Friesen is that sentences should conform to a proper understanding of the gravity of sexual offencesagainst children in light of the wrongfulness and harms of these offences and the degree of responsibility of offenders, also in light ofwrongfulness and harm, without inappropriate discount based on misapplied aggravating and mitigating factors: at para 50.

All otherthings being equal, sentences for these offences should increase: at para 5. [92] Friesen, then, was focused on matters increasing sentence or on factors that improperly decreased sentence.

It did not focuson matters that would legitimately decrease sentence. [93] Friesen adjusted the proportionality analysis as applied to sexual offences against children to ensure that the wrongfulnessand harm associated with sexual offences against children are properly appreciated, but confirmed the basic requirement that sentencesbe proportional to the gravity of the offence and the degree of blameworthiness of the offender: at paras 5, 75.

At para 30 the Courtwrote as follows: [30] All sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender. The principle of proportionality has long been central to Canadian sentencing (see, e.g., R. v.

Wilmott, (ON CA), [1966] 2 O.R. 654 (C.A.)) and is now codified as the “fundamental principle” of sentencing in s. 718.1 of theCriminal Code. [94] Friesen confirmed • the subprinciple of parity, subject to the warning about out-of-date decisions: at paras 31, 33. • that “the degree of exploitation” inherent in sexual offences against children “may vary from case to case:” at para 78. • that, despite s. 718.01, “the sentencing judge retains discretion to accord significant weight to other factors (includingrehabilitation and Gladue factors) in exercising discretion in arriving at a fit sentence, in accordance with the overall principle ofproportionality:” at para 104. [emphasis added] • the relevance of cognitive disability as affecting the degree of responsibility of the offender: at para 88 (“save for possibly certainrare 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]). At para 91, we read the following: [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] • the continued applicability of Gladue : at para 92 . • that it is inappropriate for courts of appeal to “artificially constrain sentencing judges’ ability to impose a proportionate sentence,” although what the Court had in mind was restrictions on exceeding a cap on sentences: at paras 111, 112.

At para 114, when declining to establish a range or outline circumstances in which substantial sentences should be imposed, the Court wrote “[n]or would it be appropriate for any court to set out binding or inflexible quantitative guidance - as Moldaver J.A. wrote in D. (D.) , “judges must retain the flexibility needed to do justice in individual cases ” and to individualize the sentence to the offender who is before them (at para. 33).” [emphasis added] Friesen therefore confirmed that sentences must be individualized for the specific offence and the specific offender. • the continued relevance of the objective of rehabilitation even in cases of sexual offences against children, and stated that “[r]ehabilitation may ... weigh in favour of a reduced term of incarceration followed by probation since a community environment is often more favorable to rehabilitation than prison ...:” at para 124. [ 95 ] Friesen commented on maximum sentences for offences and on increases in maximum sentences as supporting increased sentences (see, e.g., paras 98, 100), but said nothing about mandatory minimum sentences.

III. Facts and Evidence [ 96 ] The information about the offence and Mr. Melrose came in the form of an Agreed Statement of Facts (ASoF), the testimony of Dr. Marc Nesca, the exhibits (including a video of Mr. Melrose’s interview by police and Dr. Nesca’s Forensic Neuropsychological Assessment Report (FNR)), and the submissions of counsel. [ 97 ] No Victim Impact Statement was filed. [ 98 ] I have considered the following Criminal Code provisions respecting evidence and fact-finding in sentencing hearings: 723

(1) Before determining the sentence, a court shall give the prosecutor and the offender an opportunity to make submissions with respect to any facts relevant to the sentence to be imposed.

(2) The court shall hear any relevant evidence presented by the prosecutor or the offender ....

(5) Hearsay evidence is admissible at sentencing proceedings, but the court may, if the court considers it to be in the interests of justice, compel a person to testify where the person (

a) has personal knowledge of the matter; (

b) is reasonably available; and (

c) is a compellable witness. 724

(1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender ....

(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence, (

a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial; (

b) the party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it; (

c) either party may cross-examine any witness called by the other party; (

d) subject to paragraph (e), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and (

e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender. 726.1 In determining the sentence, a court shall consider any relevant information placed before it, including any representations or submissions made by or on behalf of the prosecutor or the offender. A. The Events

[ 99 ] Mr. Melrose met the Complainant in the summer of 2017. Mr. Melrose was 27. The Complainant was 13. They met in person, apparently on the street (by the “red bench”). Mr. Melrose knew that the Complainant was under 16 years old, believing her to be 14: ASoF para 17(b). The Complainant knew that Mr. Melrose was 27: ASoF para 14(f). [ 100 ] Mr. Melrose told Dr. Nesca that when he met the Complainant she was with a friend, and asked him for a cigarette (this was confirmed in his statement). This first encounter was brief: FNR p. 5. [Dr. Nesca was repeating Mr.

Melrose’s account, but hearsay was admissible in these proceedings and I had no reason to doubt the reliability of the information Mr. Melrose provided to Dr. Nesca, particularly given the corroboration in the statement.] [ 101 ] Mr. Melrose and the Complainant messaged one another. [ 102 ] Mr. Melrose reported to Dr. Nesca that he saw the Complainant and her friend the next day. Later (no date was specified), the Complainant attended at Mr. Melrose’s apartment: FNR p. 6. [ 103 ] On her second visit to Mr.

Melrose’s apartment, “she openly proclaimed her love for him and they engaged in sexual intercourse:” FNR p. 6. This occurred in July 2017. Mr. Melrose used a condom. See ASoF para 28. [ 104 ] The Complainant had been living with her mother. On July 12, 2017, her mother called the police because the Complainant had not been home in several days and her mother feared she was with Mr. Melrose. Her mother had permitted the Complainant to use her iPad. She had seen Facebook Messenger conversations of a concerning nature between the Complainant and Mr. Melrose: ASoF para 3.

These messages are appended to the Agreed Statement of Facts (the Messages). [ 105 ] The Messages included affirmations of affection, comments about the parties’ continued relationship, references to having a baby together, references to meeting and to having physical contact, and references to what does appear to be the use of condoms. [ 106 ] In the afternoon of July 12, Cst. Witwer attended Mr. Melrose’s residence. The Complainant was not there. Mr. Melrose was arrested. [ 107 ] The Complainant’s mother located the Complainant elsewhere and advised the police of her location.

A police officer picked up the Complainant and transported her to the Zebra Child Protection Centre for a video-recorded interview. [ 108 ] In her interview, the Complainant stated (among other things) that she was dating Mr. Melrose, they had intimate contact (but not sex), she wanted to have a child with him in the future, and that she knew he was 27: ASoF at paras 14, 15. [ 109 ] Mr. Melrose’s residence was searched under a warrant. A used condom was seized, as well as computer devices. Another warrant was obtained to permit forensic examination of the computer devices and that examination was performed.

Neither warrant was challenged. [ 110 ] Mr. Melrose was held overnight and was interviewed by Det. Hauptman in the morning of July 13. He was Chartered and cautioned. The admissibility of this interview was not challenged. Mr. Melrose stated the following (among other things): He had a learning disability. He believed the Complainant was 14. After the interviewing officer had described the law concerning consent, he denied having touched the Complainant “like that.” He had held hands with the Complainant and had kissed her. The Complainant had wanted to date him.

The Complainant had been with him at about 1 p.m. on the day he was arrested. [ 111 ] The interview turned to the seized used condom. In the words of the Defence Brief at para 9, Mr. Melrose initially denied having any sexual contact with [the Complainant]. He then gave an absurd set of rapidly evolving explanations for why there was a used condom in his apartment before ultimately admitting that he had sexual intercourse with [the Complainant]. I find this to be an accurate description of the relevant portion of Mr. Melrose’s statement. [ 112 ] Mr.

Melrose acknowledged having sent the Messages to the Complainant. [ 113 ] The Complainant provided a DNA sample. The used condom was sent for DNA analysis and was found to bear the DNA of two persons, the Complainant and an unknown male. Mr. Melrose admitted that he was the male whose DNA was found on the condom. [ 114 ] The s. 151 offence was established on the basis of Mr. Melrose having had sexual intercourse with the Complainant. She could not consent, given the ages of the parties. [ 115 ] The s. 172.1(1)(

b) offence was established on the basis of the Messages between Mr. Melrose and the Complainant. The Messages represented telecommunications for the purpose of facilitating an offence under s. 151 of the Criminal Code . B. Mr. Melrose’s Circumstances [ 116 ] Aside from Dr. Nesca’s testimony and the recorded statement, the information about Mr. Melrose’s circumstances came onto the record through unsworn documentary evidence. I consider the contents of the records to be reliable. The Crown did not seek to cross- examine any of the authors of the documents. 1. Early Years Assessments [ 117 ] In March 1999, when Mr.

Melrose was 9 years old, he was assessed by Dr. Rosemary Moulden, a psychologist. He was found to have a full scale IQ score of 48, putting him below the 0.1 percentile. He was classified as having a “moderate (trainable) handicap:”

Exhibit 4, Moulden Psychological Assessment Results and Report (Moulden Report). In her report, Dr. Moulden referred to an assessment of Mr. Melrose’s intellectual ability in 1995, when he was nearly 6, by Dr. David Piercey. Dr. Piercey had found that his full scale IQ score was 54. Again, he was in the “trainably handicapped” range. Dr. Piercey’s findings were not otherwise in evidence. [ 118 ] Dr. Moulton administered the Vineland Adaptive Behaviour Scales. Mr. Melrose’s Adaptive Behaviour Composite score indicated delayed skills in his overall adaptive functioning: Moulton Report, p. 3.

His strongest score was in the socialization domain, at the 14 th percentile (moderately low). His composite score was at the 1 st percentile. [ 119 ] In his Forensic Neuropsychological Assessment Report (to be discussed below), Dr. Nesca referred to a neurodevelopmental assessment report prepared by Dr. Patton on September 21, 2004. This report was not otherwise in evidence. Dr. Nesca reported that Dr. Patton noted that Mr. Melrose exhibited low frustration tolerance, limited attention span, difficulty understanding instructions, and delayed speech development. Dr. Patton’s opinion was that Mr.

Melrose’s difficulties were organic: FNR p. 3. In testimony, Dr. Nesca clarified that the “organic” finding indicated that Mr. Melrose’s difficulties were structural, not transient resolvable states. 2. Capacity Assessment Report, 2017 [ 120 ] After Mr. Melrose was charged, on September 27, 2017, a Capacity Assessment Report was prepared by a psychologist, Kristi- Anna Steiestol, to support an application for the Appointment of Guardian and Trustee for Mr. Melrose: Exhibit 5.

While prepared for another purpose, this document has the added reliability of having been specifically prepared by an expert for review by a judge. [ 121 ] Ms. Steiesol reported that Mr. Melrose “has a well-documented history of learning problems, low cognitive functioning, as well as poor adaptive, coping and life skills.” He lacks numeracy skills. He has been financially exploited by acquaintances on numerous occasions. (Ms. Steiesol was repeating unattributed third-party information at this point.) Ms.

Steiesol stated that a functional inquiry at the time of the Capacity Assessment revealed a lack of understanding and appreciation of factors and information relevant to making personal decisions .... He was unable to fulfill basic skills required for independent living .... Michael acknowledged and gave examples whereby even in situations that he does have some degree of understanding, he does not always make decisions that are in his best interests. Ms. Steiestol confirmed that Mr. Melrose’s impaired cognitive functioning is permanent. [ 122 ] On May 17, 2018, Justice M.E.

Burns granted a Guardianship and Trusteeship Order for Mr. Melrose, appointing his mother as Guardian and Trustee and his father as Alternate Guardian and Trustee. 3. Mental Health Update, 2020 [ 123 ] A Mental Health Update Report dated October 19, 2020 was provided by Dr. Natasha Egeli, a psychologist. She has provided counselling to Mr. Melrose for 3 years. She stated that due to his limited cognitive capacity, Michael requires healthy environments to be successful and is vulnerable to making poor decisions without adequate support or if influenced negatively by others.

She also stated that “[i]n every session, he has expressed remorse over the events leading to his court case. He has clearly stated that what he did was wrong, he will never repeat this behaviour, and he regrets his acts and the hurt he has caused others.” 4. Dr. Marc Nesca [ 124 ] Dr. Nesca testified. He was qualified as a clinical forensic psychologist. He holds a PhD in Clinical Psychology from the University of Manitoba. Currently he is an Associate Professor and Head of the Criminal Justice Program, Faculty of Humanities and Social Sciences, Athabasca University.

He has been in private practice since 1997, performing civil and criminal assessments and consultation services. He is registered with the Canadian Psychological Association and the American College of Forensic Psychology. He has worked in hospital forensic and psychiatric units and with the Correctional Service of Canada. He has published (whether as sole, first, or co-author) some 17 articles, as well as book chapters and reviews. His second book is in press. He has given numerous presentations to justice system audiences.

He has been qualified to provide expert testimony in the Alberta Provincial Court and the Alberta Court of Queen’s Bench. [ 125 ] Dr. Nesca’s FNR was dated September 22, 2019. The FNR was based on interviews with Mr. Melrose and his parents on September 7, 2018 and September 6, 2019, Mr. Melrose’s completion of test batteries, and a review of documents described in the FNR. (

a) Police Interview [ 126 ] Dr. Nesca observed the video of Mr. Melrose’s police interview. He stated that it “reveals a developmentally delayed accused with a generally child-like demeanour .... During [the] last segment of the interview, he presents as an agitated, overwhelmed child .... Later ... [he] becomes agitated almost to the point of incoherence:” FNR p. 2. Dr. Nesca testified that Mr. Melrose presented as a child who knows he is in trouble. He lied like a child. Mr. Melrose’s thinking was child-like, distorted, and ineffectual. I find that Dr. Nesca’s observations were accurate. (

b) Clinical Observations [ 127 ] In Mr. Melrose’s attendances with Dr. Nesca, Mr. Melrose gave answers to questions that were “concrete and simple.” While Mr. Melrose’s insight into personal needs was adequate, “his judgment was grossly impaired.” He “could not complete a simple reasoning task that is routinely completed by patients who have suffered a significant brain injury:” FNR p. 3. Dr. Nesca also referred to

“a relative inability to anticipate consequences:” FNR p. 13. Dr. Nesca testified that Mr. Melrose was unable to solve simple problems or to anticipate problems. [ 128 ] Mr. Melrose’s affect was anxious. “He impressed as literally terrified of the legal system:” FNR, p. 3. Fear dominated his emotional presentation: FNR p. 13. Dr. Nesca confirmed this judgment in testimony. [ 129 ] Mr. Melrose does not have reality-altering mental illness. His thoughts, though, “were simple and child-like.” [ 130 ] Dr. Nesca noted that Mr. Melrose exhibited depression and that he is currently on anti-depressants: FNR pp. 4, 5. (

c) Tests [ 131 ] Formal testing disclosed that Mr. Melrose had a full scale IQ of 54. This score falls in the “extremely low” range of general intellectual abilities and puts Mr. Melrose below the 1 st percentile. “In more practical terms, these test results indicate that approximately 99% of the general population can reasonably be expected to have a higher IQ than Mr. Melrose:” FNR p. 6. Dr. Nesca testified that a score could not get worse statistically. Mr. Melrose is at the bottom of the measurement range. [ 132 ] Dr. Nesca stated that Mr.

Melrose’s IQ corresponds to a mental age that falls in the range of 8 ½ to 11: FNR p. 13. [ 133 ] Dr. Nesca commented in testimony that Mr. Melrose’s IQ test results have been consistent since 1995, through Dr. Moulden’s 1999 testing, to his testing in 2018. Dr. Nesca did not consider the difference between Dr. Moulden’s finding of a full scale IQ score of 48 and his own finding of 54 to be significant. The difference falls within the scope of measurement error. The testing instrument used in 1995 by Dr.

Piercey was not the same as the testing instrument used later. [ 134 ] According to a standardized test of academic achievement, Mr. Melrose’s reading ability respecting single words is at a grade 4 level and his mathematical ability at a grade 3 level: FNR p. 6. When words are placed in context, Mr. Melrose is able to understand sentences at a grade 3 level: FNR p. 7. [ 135 ] Dr. Nesca administered the Neuropsychological Assessment Battery (NAB) of tests, “developed for the comprehensive assessment of a wide range of neurocognitive functions:” FNR p. 7. Mr.

Melrose’s overall performance fell in the severely impaired range, with a percentile ranking of 0.4. “We can [reasonably] expect 99.5% of the population to perform better on this battery of tests:” FNR pp. 7, 14. His neurocognitive functions are globally impaired. Dr. Nesca testified that Mr. Melrose functions at the level of a child. [ 136 ] Mr. Melrose’s results on the Orientation group of NAB tests (orientation to self, time, place, situation) fell in the severely impaired range. He was incompletely oriented to time and place: FNR p. 7. [ 137 ] Mr.

Melrose’s performance on the Attention group of tests fell in the severely impaired range. He has considerable difficulties with attentional processes. His auditory attention span, visual scanning ability, working memory, and memory for patterns are all limited, with performance not rising above the 1 st percentile. On the daily living task for this test module, assessing his attention to detail, capacity for selective attention, and ability to accurately scan his environment, Mr. Melrose’s performance fell in the severely impaired range, at a percentile rank of less than 1.0: FNR p. 8. [ 138 ] Mr.

Melrose’s score for the Language module fell in the severely impaired range, showing significantly diminished speech output, and impaired auditory comprehension, word finding, and reading comprehension. On the daily living task for this test module, relating to auditory and reading comprehension, simple mathematical calculations, and speech output, Mr. Melrose’s results fell within the severely impaired range, below the 1 st percentile. [ 139 ] Mr. Melrose’s score for the Memory module fell in the moderately-to-severely impaired range.

He struggled to acquire information and forgot what he learned over a relatively brief interval: FNR p. 8. On the daily living task for this test module, his performance fell in the impaired range: FNR p. 9. [ 140 ] Mr. Melrose’s score for the Spatial Skills module fell also fell in the moderately-to-severely impaired range. He had impaired visuospatial skills, attention to detail, and visuoconstructional abilities. His performance on the daily living task for this module fell within the moderately-to-severely impaired range. [ 141 ] In terms of his executive functions, Mr.

Melrose’s test performance showed significant impairment in the areas of planning, foresight, problem solving, and concept formation, as well as in the areas of mental flexibility, self-monitoring, and verbal fluency: FNR p. 9. [ 142 ] Dr. Nesca wrote that (FNR p. 14) The impact of these deficits is likely to be pervasive and profound. Social judgment, decision-making, impulse control and the ability to anticipate consequences can all be expected to be impaired, with deficits amplified in real world settings that are more complex and chaotic than relatively sterile testing conditions. [ 143 ] Dr.

Nesca continued: Given the depth of Mr. Melrose’s deficits, and his very limited IQ, I am doubtful that he is capable of fully appreciating the potential psychological consequences for a minor of a sexual relationship with an adult. I am equally doubtful that he fully appreciates the significance of the age difference between he and the victim. More directly, while I have no doubt that Mr.

Melrose understands, in a concrete sense, that he is older than the victim, I do not believe that he is capable of truly appreciating the psychosocial differences between an adult male and a 13 year-old female, or the potentially negative psychological consequences of a sexual relationship between the two ....

[ 144 ] Dr. Nesca testified that because of Mr. Melrose’s concrete thinking and because his contact with the Complainant did not involve physical injury, he would not appreciate that the event would be otherwise damaging. [ 145 ] Dr. Nesca confirmed in testimony that Mr. Melrose did not have the ability to anticipate long-term consequences to the Complainant. [ 146 ] When asked in direct whether Mr. Melrose would understand that sex with a minor is morally wrong, Dr. Nesca said that morality is highly abstract. He did not think Mr. Melrose could appreciate the moral wrongfulness.

He thinks of his misconduct in concrete terms. [ 147 ] In cross-examination, Dr. Nesca testified that Mr. Melrose would appreciate wrongfulness in a “gross sense.” He understands that he is in trouble. He understands not to go near people of a certain age. He can parrot back information, but he does not have the cognitive ability to fully appreciate consequences. Dr. Nesca did not believe that Mr. Melrose would understand the emotional harm to a girl of the Complainant’s age or the harm to her development. Mr. Melrose would understand making her feel bad, but nothing beyond that. [ 148 ] Dr.

Nesca agreed with the Crown that lack of insight by offenders is not rare. But for most offenders, this lack of insight “comes from a different place.” [By that I understood Dr. Nesca to mean that Mr. Melrose’s lack of insight is a function of his cognitive deficits. Other offenders’ lack of insight may be a function of (e.g.) moral deficits (priorization of self and self-gratification) or insufficient attention to or appreciation of the facts of their offending, or wilful blindness.] [ 149 ] When asked whether Mr. Melrose’s use of condoms demonstrated impulse control and awareness of physical consequences, Dr.

Nesca responded that Mr. Melrose would understand that he should use a condom so he would not make a baby or get sick. A 10 or 11 year old would understand this, said Dr. Nesca. [ 150 ] When asked whether any programming would give Mr. Melrose greater insight, Dr. Nesca said none would. Mr. Melrose’s condition is static and no programming will improve his overall level of functioning. He is capable, though, of learning new things, of acquiring new information. (

d) Risk Assessment [ 151 ] Dr. Nesca’s risk assessment for Mr. Melrose had two steps. The first involved a review of risk factors applicable to the general population of sexual offenders. The second focused on risk factors relevant for intellectually disabled sexual offenders. [ 152 ] In cross-examination, Dr. Nesca confirmed that the particular method of risk assessment he employed has been validated. All of the risk variables used have been empirically validated. The variables are “robust.” The list he uses is derived from R.K. Hanson, a leader in the risk assessment field.

Some variables used in other testing tools, variables that Dr. Nesca did not use in his assessment, have been found not to be predictive of recidivism. Dr. Nesca stated that there is broad agreement in the current literature about these “excluded factors.” Dr. Nesca stated that he could say this without hesitation, having presented on this matter the day before he testified in this case. [ 153 ] Dr. Nesca stated that the re-offence rate for male sexual offenders with unrelated girl victims is approximately 9% over 5 years and 13% over 10 years. This is the baseline re-offence rate.

It shows the average risk of a group of offenders with similar victim profiles. Dr. Nesca stated that the baseline re-offence rate has questionable relevance to Mr. Melrose, since the proportion of intellectually disabled offenders in the derivation sample is unknown: FNR p. 10. [ 154 ] At the first step of the risk assessment, Dr. Nesca assessed the presence of risk factors empirically linked to sexual offence recidivism.

The risk factors can be grouped under the following categories (FNR p. 11): • sexual criminal history • sexual deviance • lifestyle instability/criminal orientation • intimacy deficits • poor response to treatment or supervision • poor problem-solving skills • young age. [ 155 ] Dr. Nesca identified only one risk factor concerning Mr. Melrose, poor problem-solving skills. Dr. Nesca wrote as follows (FNR p. 11): This variable ... is universally present in cases involving intellectually impaired offenders.

In this case, the negative impact of this variable is negated by the Guardianship order that is in place and the very close supervision that Mr. Melrose’s parents exercise over his behaviour. Even allowing for active and legally meaningful problem solving deficits, this risk profile is benign, leading logically to the conclusion that Mr. Melrose poses a low risk of recidivism. [ 156 ] The second step of the risk assessment, focusing on risk factors relevant for intellectually disabled sexual offenders, relied on a framework developed by Phenix and Sreenivasan in 2009.

The risk factors are grouped under the following categories (FNR pp. 11-12):

• global risk factors (dovetails with the first step of the analysis) • diagnostic risk factors (e.g. psychopathy, pedophilia) • social skills deficits • behavioural tendencies • knowledge levels pertaining to sexual behaviour • treatment progress (only if in active treatment) • release environment • acute dynamic risk factors (variable mental and behaviour states based on, e.g., loss of employment, substance abuse). Dr. Nesca stated that individual variables in each domain are rated as present or absent. The greater the number of present variables, the higher the risk in that area.

The review of all domains leads to a risk designation of low, moderate, or high: FNR p. 12. [ 157 ] Dr. Nesca considered three domains to have absent variables, indicating low risk – global risk (see the step one assessment), knowledge levels pertaining to sexual behaviour, and release environment. Mr. Melrose’s release environment would include, in Dr. Nesca’s estimation, “considerable family and community support and a highly structured environment.” Even if he does not receive a custodial sentence, “he will ... be under some form of mandated supervision:” FNR p. 13.

The variables in this domain are negative, indicating low risk. [ 158 ] Dr. Nesca considered the other domains to have present variables, but all produced low risk ratings. [ 159 ] The diagnostic risk factor was engaged by Mr. Melrose’s depression. [ 160 ] The social skills deficit risk factor “is concerned with deficits leading to the association with children or an inability to form peer relationships.” Dr. Nesca indicated that variables in this domain include, e.g., “long term institutionalization, sexually exploiting lower functioning peers, and lack of assertiveness:” FNR p. 12.

The only variable present was lack of assertiveness. In cross- examination, Dr. Nesca clarified that the “sexually exploiting lower functioning peers” variable concerned (e.g.) in an institutionalized setting, higher functioning individuals targeting lower-functioning individuals. [ 161 ] The behavioural tendencies domain focuses on “variables that undermine self-control.” These include lack of assertiveness, pathological impulsiveness, low frustration tolerance, and difficulty delaying sexual gratification: FNR p. 12. Again, according to Dr.

Nesca, “[a]ssertiveness deficits are the only difficulty in this group of variables:” FNR p. 12. Dr. Nesca conceded in cross-examination that Mr. Melrose’s impulse control was lower than average, but his impulse control was not pathologically impaired. He was not “a walking impulse.” He did not operate in an “I walk, I see, I take” manner. [ 162 ] The only variable present under acute dynamic risk factors was Mr. Melrose’s “negative emotional state,” as he is depressed, terrified of incarceration, and highly stressed: FNR p. 13. The single present variable in this domain indicates low risk. [ 163 ] Dr.

Nesca’s overall conclusion, taking into account both analytical steps, was that Mr. Melrose poses a low risk of recidivism: FNR pp. 13, 15. [ 164 ] Dr. Nesca “expected” that Mr. Melrose’s “intense fear of incarceration” will produce a “powerful personal deterrent effect, further reducing his risk for re-offence:” FNR pp. 13, 15. [ 165 ] In cross-examination, Dr. Nesca was asked whether any particular type of punishment would bring home to Mr. Melrose not to commit the offences again. Dr. Nesca responded that the arrest process itself was terrifying to Mr. Melrose. Mr.

Melrose was literally terrified of going to jail. Deterrence is based on that emotional impact. [ 166 ] The Crown asked Dr. Nesca what could be done to manage the risk to the public posed by Mr. Melrose, what could be done in Mr. Melrose’s best interests – what would be ideal? Dr. Nesca stated that Mr.

Melrose is fully managed now. [ 167 ] What would have to continue would be constant supervision (including video surveillance, monitoring behaviour 24/7), supportive counselling, being part of the Chrysalis program [which I understood to be a program for developmentally-challenged adults], and having decisions made by someone else. All of these matters are currently being addressed. Dr. Nesca could think of nothing to add, from a risk management perspective. Currently Mr. Melrose’s risk is well-managed. (

e) The Offences [ 168 ] Dr. Nesca referred to the offences having occurred when “Mr. Melrose became involved in a romantic relationship with a 13 year-old girl:” FNR p. 1. “The romantic nature of this involvement and plans for a long term relationship are captured in paragraph 9 of the Agreed Statement of Facts:” FNR p. 2. The offences were “a case of misguided romantic attraction rather than predatory sexual exploitation:” FNR p. 15. [ 169 ] Dr. Nesca stated that Mr. Melrose and the Complainant “reportedly fell in love immediately (‘when we first saw each other’):” FNR pp. 5, 15. Mr.

Melrose described his feelings for the Complainant as “intense and overwhelming:” FNR p. 5. Dr. Nesca testified that for Mr. Melrose this was a “first love fantasy.” In cross-examination, he said that this was a “child-like fantasy” involving marriage and children, without an appreciation of what any of this means. What happened was “falling in love” in a “childish way.” Two individuals of the same maturity level came together in a child-like fashion and weaved their fantasies together.

[ 170 ] In cross-examination, Dr. Nesca stated that Mr. Melrose did not “groom” the Complainant, in the sense of leading her to a situation. [ 171 ] In Dr. Nesca’s view, if the circumstances are seen as romantic attraction, Mr. Melrose’s attraction was limited to the individual Complainant. He was not “out there looking,” he did not cast a “predatory net.” [ 172 ] In cross-examination, Dr. Nesca testified that he did not consider Mr. Melrose to have engaged in “luring” conduct. This was not an Internet offence.

There were no indications of concerns respecting luring. [ 173 ] When asked in cross-examination why the “romantic event” would not likely be repeated, what about the Complainant made it unlikely that the event would be repeated, Dr. Nesca referred first to the deterrent effect. Mr. Melrose now knows what can occur. Dr. Nesca then said that romantic attractions are peculiar to the individuals involved, in contrast to libidinal or predatory attractions. (

f) Messages between Mr. Melrose and the Complainant [ 174 ] Dr. N

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