R v Wallis, 2021 ABQB 811

Court of Queen’s Bench of Alberta Citation: R v Wallis, 2021 ABQB 811 Date: 20211013 Docket: 200221976Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Louisa Wallis Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the victim must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice John T. Henderson _______________________________________________________

I. Overview [1] Ms. Wallis appeared before me on May 4, 2021 and entered pleas of guilty to the following counts on the indictment: • Count 2 - Sexual Exploitation of H.B. contrary to s 153(1)(

a) of the Criminal Code; • Count 3 – Making Child Pornography contrary to s 163.1(2) of the Criminal Code; and • Count 7 - Procuring a Person Under 18 years of age contrary to s 286.3(2) of the Criminal Code. [2] After the pleas were entered, a Pre-Sentence Report was ordered and the matter returned before me on September 10, 2021for argument in relation to sentence. [3] For the reasons that follow, I sentence Ms. Wallis to a period of incarceration of 11 years less predisposition credit of 19months (calculated at a rate of 1.5 to 1). Thus, the net sentence imposed is 9 years and 5 months.

I also make the ancillary ordersspecified at the conclusion of these reasons. II. Circumstances of the Offences [4] The circumstances of the offences are as described in an Agreed Statement of Facts that has been signed by Ms. Wallis andby her then counsel. While the Agreed Statement of Facts makes multiple references to the co-accused, MM, it should be made clear thatMM did not sign the Agreed Statement of Facts and does not admit any of the facts referred to therein. He is not a party to this

summarydisposition and nothing in these reasons should be taken as expressing any view as to the validity of the charges against him. He ispresumed to be innocent. The admissions in the Agreed Statement of Facts are made by Ms. Wallis only. [5] The offences to which Ms. Wallis pleaded guilty were committed between December 2018 and March 2019. At that time Ms.Wallis was 24 years old and was in a domestic relationship with MM, who was also 24 years old. They resided in an apartment neardowntown Edmonton. Ms. Wallis was pregnant at that time.

During the relevant times the two victims, H.B. and B.L. were 16 years oldand 15 years old respectively. Sexual Exploitation [6] Ms. Wallis admits that she was introduced to H.B. and B.L. through MM. Both were vulnerable persons. H.B. suffered froman addiction to crystal meth and had been the victim of abuse and neglect. She had few resources and was often homeless or lived ingroup homes or in safe houses. Ms. Wallis and MM provided H.B. with crystal meth and asked whether she wanted to stay in theapartment for a few days. [7] While H.B. was in the apartment, Ms.

Wallis and MM engaged in sexual intercourse in the presence of H.B. Ms. Wallis andMM then included H.B. in their sexual activity that consisted of a variety of penetrative acts and sexual touching of H.B. by both Ms.Wallis and MM, at times simultaneously. Some of this sexual activity was captured on video recordings that have been marked as asealed exhibit to the Agreed Statement of Facts. [8] Ms. Wallis admits that she knew that H.B. was less than 18 years of age at the time of the sexual acts. I conclude that in allof the circumstances Ms. Wallis was in a position of trust in relation to H.B.

In coming to this conclusion, I consider the vulnerability ofH.B.; her addiction to crystal meth which was, in part, fed by Ms. Wallis; H.B.’s dependency on Ms. Wallis for a place to stay; and theposition of power Ms. Wallis had over H.B.: see R v EJB, 2017 ABCA 176 [EJB]; R v Audet, (SCC), [1996] 2 S.C.R. 171, 135 D.L.R. (4th) 20 (S.C.C.). [9] I conclude that the admitted facts establish beyond a reasonable doubt the essential elements of the offence of sexualexploitation referred to in Count 2. [10] B.L. was also a vulnerable youth. She was also experiencing homelessness and struggled with substance abuse.

B.L. was in avulnerable position and trusted Ms. Wallis and MM when they provided her with a place to stay for short durations during the periodDecember 2018 to March 2019. While in the apartment, Ms. Wallis and MM provided B.L. with crystal meth. Both Ms. Wallis and MMalso engaged in penetrative sexual acts with B.L., some of which are also captured on a video marked as a sealed exhibit to the AgreedStatement of Facts. While Ms. Wallis admits these facts, she has not offered a plea to sexual interference in relation to B.L.

Procuring Person Under 18 into Prostitution [11] While H.B. was staying at the apartment, Ms. Wallis told her that she was “good at sex” and asked her if she wanted to makemoney by working as an escort. Ms. Wallis explained that she could make $120 for each ½ hours work and that Ms. Wallis would be inthe room during the time that the sexual acts were taking place. [12] Ms. Wallis also discussed working in the sex trade with B.L. and taught her the acronyms that were commonly used in the sextrade. [13] Sexually suggestive photographs of H.B. and B.L. were then taken.

These photographs depicted the young women posingalone or with Ms. Wallis. In some of the photographs they wore lingerie and in some of the photographs B.L. was partially nude. Thesephotographs were then used by Ms. Wallis to post and manage a total of 17 advertisements for sexual services on LeoList during the

period January 15, 2019 and March 3, 2019. The advertisements are all similar to each other in that they offer sexual services to be provided by Ms. Wallis and also sexual services to be provided by H.B. and B.L. The advertisements also offered sexual services that would be provided as a “duo”. [ 14 ] Each of H.B. and B.L. provided sexual services to customers who had been sought out and arranged by Ms. Wallis. In addition, Ms.

Wallis also assumed responsibility for negotiating what sexual acts would be performed and determined the price to be paid for each of the sex acts. [ 15 ] The sex acts performed by H.B. and B.L. with customers at the direction of Ms. Wallis sometimes involved Ms. Wallis as a direct sexual participant and sometimes the sex acts were performed with the customers alone. Ms. Wallis gave both H.B. and B.L. crystal meth during the time that they were involved in providing the sexual services.

B.L.’s recollection of the events was negatively impacted by the effects of the crystal meth. [ 16 ] In the case of B.L. all of the sex acts took place in the apartment. However, in the case of H.B. arrangements were sometimes made between Ms. Wallis and the customer for H.B. to be picked up at her group home and the sex acts were performed away from the apartment. [ 17 ] Although Ms. Wallis told H.B. that she was able to turn down any sex act that made her uncomfortable, H.B. did not believe her. H.B. believed that if she were to turn down any of the sexual arrangements then MM and Ms.

Wallis would be mad at her and would take her money. H.B. also felt that she had to assist Ms. Wallis because she was pregnant and told H.B. that if she did not do the sex acts, then the stress would impact Ms. Wallis’ pregnancy. On one occasion, H.B. told Ms. Wallis that she wanted to go home and did not want to do the arranged sexual acts. H.B. was crying and tried to leave the apartment. At that point, Ms. Wallis insisted that H.B. had to make money. Ms. Wallis then locked herself in the washroom and started to make sounds like she was throwing up.

She told H.B. that she was stressed and the baby was going to die. In the face of this pressure, H.B. complied with the arrangements made by Ms. Wallis. [ 18 ] I conclude that these facts establish beyond a reasonable doubt the essential elements of the offence of procuring a person under 18 into prostitution that is referred to in Count 7. Making Child Pornography [ 19 ] After the arrest of Ms. Wallis, police conducted a forensic examination of her cell phone. The forensic examination revealed the presence of seven videos that Ms. Wallis admits constitute child pornography.

Each of the videos depicts either H.B. or B.L. engaged in sexual contact with MM and Ms. Wallis. [ 20 ] Ms. Wallis admits that she and MM made these videos during the period January 15, 2019 and February 22, 2019. The videos vary in length from 5 seconds to 10 minutes. The Agreed Statement of Facts provide a vivid description of the content of the videos. It is unnecessary to provide a detailed narrative of the videos other than to say that they show MM and Ms. Wallis engaging in a full range of penetrative sexual acts with both H.B. and B.L.

The videos are explicit and very disturbing as well as being abusive and extremely degrading. For example, one video shows B.L. wearing a dog collar while handcuffed behind her back. The handcuffs are used by MM to control B.L.’s direction and movement while Ms. Wallis and MM engage in a variety of forced oral, vaginal and anal sexual acts. [ 21 ] No condoms were used while making any of the videos. [ 22 ] The admitted facts establish beyond a reasonable doubt the offence of making child pornography that is referred to in Count 3. III. Circumstances of Ms.

Wallis [ 23 ] I have the benefit of a Pre-Sentence Report that provides detailed background information regarding Ms. Wallis. She is a now 27 years old woman with no prior criminal record. She was born in Duncan, British Columbia and has one brother and one sister who are both younger than her. [ 24 ] Ms. Wallis had a number of negative experiences as she was growing up as a member of a strict religious congregation. As a result, she was subject to many rules and strict parenting, mostly by her mother. She became isolated because of this.

This contributed to the negative relationship she had with her mother who also subjected Ms. Wallis to verbal and physical abuse. She was belittled by her mother and called “dumb” and “ugly”. [ 25 ] As a child, Ms. Wallis was reported to have been diagnosed with Asperger Syndrome, Tourette Syndrome and Obsessive- Compulsive Disorder. She was medicated until age 14 but terminated the use of the medication due to various side effects; this only worsened her behaviour. [ 26 ] As she was growing up the family experienced financial strain caused by her father losing employment.

This resulted in the family moving approximately 11 times. Because of this, Ms. Wallis attended school in 20 school districts. [ 27 ] When she was approximately 13 years old she was sexually assaulted on multiple occasions by someone she knew. [ 28 ] The relationship between her parents was toxic and involved many instances of domestic violence. This ultimately resulted in her father leaving the family home in 2009 when Ms. Wallis was approximately 14 years old. [ 29 ] When she was 16, Ms. Wallis left home after a fight with her mother.

She then lived briefly in Alberta with her father before returning to British Columbia to live with her maternal grandparents. She had a positive experience while living with her grandparents and was able to finish high school.

[ 30 ] At age 17, Ms. Wallis entered into a common law relationship with a man who was 10 years older than she was. She stayed with this man for approximately 3 years and was subjected to controlling, manipulative and verbally abusive behaviour. [ 31 ] After this relationship ended she had a number of short-term relationships with several men including MM. All of these relationships were characterized by domestic violence and drug use. [ 32 ] Ms.

Wallis has one child with MM although the child was apprehended shortly after birth pursuant to a custody agreement that was negotiated due to reports of drug use during pregnancy and Ms. Wallis’ work in the sex trade. The child was originally placed with Ms. Wallis’ sister but is now in the care of MM’s mother. An application by Child and Family Services for a Permanent Guardianship Order is currently outstanding. [ 33 ] Ms. Wallis has experienced substance abuse issues since she was approximately 20 years of age, which coincided with her work in the sex trade.

In those 7 years she has heavily used Percocet, Xanax, morphine, oxycodone, methamphetamine, cocaine, fentanyl, GHB and heroin. [ 34 ] She overdosed on multiple occasions and has attempted suicide twice, once at age 19 and once at age 22. [ 35 ] Ms. Wallis has a goal to become a productive member of society and to work in the health care field. She would also like to regain custody of her child. IV. Position of the Parties [ 36 ] The Crown argues that a fit and proper sentence for these offences is a global sentence of 14 years in custody.

This position is primarily based upon the direction given recently by the Supreme Court of Canada in R v Friesen , 2020 SCC 9 at para 1 [ Friesen ], which instructs sentencing courts in Canada to “impose sentences that fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children.” [ 37 ] The Defence argues that a sentence in the range of 6 to 8 years would be fit and proper.

This position is primarily based on a review of many decisions that describe the principles of sentencing in relation to “pimping offences”, including the decision of the Alberta Court of Appeal in R v Tang , 1997 ABCA 174 [ Tang ]. V. Principles of Sentencing

a) Objectives of Sentencing [ 38 ] The fundamental purpose of sentencing is to “contribute, along with crime prevention initiatives, 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 set out in s 718(

a) to (

f) of the Criminal Code .

These are to denounce unlawful conduct; to deter the offender and other persons from committing offences; to separate the offender from society, where necessary; to assist in the rehabilitation of the offender; to provide reparations for harm done to victims or to the community; and to promote a sense of responsibility in the offender, and acknowledgment of harm done to the victims and to the community. [ 39 ] In a case such as this which involves sexual violence against persons under the age of 18, the primary sentencing objectives are deterrence and denunciation: s 718.01 of the Criminal Code . [ 40 ] By emphasising the objective of denunciation, the Court is recognizing the community’s condemnation of this type of sexual offending, particularly by those in a position of trust. [ 41 ] In the present case both general deterrence and specific deterrence must be addressed.

The sentence must generally deter sexual offending of the type engaged in by Ms. Wallis. Specific deterrence is also an objective that needs to be considered. Ms. Wallis must be aware of the serious consequences that flow from this type of offending. The sentence imposed must deter her from reoffending. [ 42 ] Because Ms. Wallis was relatively young at the time of the offences, rehabilitation continues to be an important sentencing objective, but is secondary to denunciation and deterrence.

b) Proportionality [ 43 ] Proportionality is the governing sentencing principle in the Criminal Code (s 718.1): R v Arcand , 2010 ABCA 363 at para 47 [ Arcand ]. This principle requires that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 44 ] “Gravity of the offence” is a concept which is directed to what the offender did wrong. It includes two components: (1) the harm or likely harm to the victim; and (2) the harm or likely harm to society and its values.

The “degree of responsibility of the offender” refers to the offender’s culpability as reflected in the essential substantive elements of the offence, especially the fault component, and any specific aspects of the offender’s conduct or background that tend to increase or decrease the offender’s personal responsibility for the crime: Arcand at paras 47 to 58 . 1. Gravity of Offence

(

i) Harm or Likely Harm to Victim [ 45 ] The Supreme Court’s guidance in Friesen will impact sentencing for all sexual offences against children. While Friesen dealt with a specific instance of sexual interference against a 4-year-old girl, the decision provided general guidance in relation to not just sexual interference but also with respect to all sexual offending against children and young persons, including specifically the 3 offences which Ms. Wallis has entered pleas of guilty to: see Friesen at para 44 .

Thus, the instruction in Friesen is directly applicable in relation to the offences committed against B.L. because she was 15 at the time of the offences and it is also applicable in relation to the offences against H.L. even though she was 16 at the time of the offences. [ 46 ] The Supreme Court in Friesen at para 50 emphasized that it is critical to understand the harmfulness of sexual offending because this will help bring sentencing law into line with society’s contemporary understanding of the nature and gravity of sexual violence against children and will ensure that past biases and myths do not filter into the sentencing process. [ 47 ] Sexual offending against children is wrongful because it invades their personal autonomy, violates their bodily and sexual integrity and gravely wounds their dignity.

It inhibits the right of the child to develop into adulthood free from sexual interference and exploitation by adults: Friesen at paras 51 to 52 ; R v Sharpe , 2001 SCC 2 at para 185 [ Sharpe ]. Furthermore, as explained at para 58 of Friesen : Sexual violence can interfere with children’s self-fulfillment and healthy and autonomous development to adulthood precisely because children are still developing and learning the skills and qualities to overcome adversity ( Sharpe , at paras. 158, 184-85 and 188 , per L’Heureux-Dubé, Gonthier and Bastarache JJ.; G.

Renaud, The Sentencing Code of Canada: Principles and Objectives (2009), at § 12.64). For this reason, even a single instance of sexual violence can “permanently alter the course of a child’s life” ( Stuckless (2019) , at para. 136, per Pepall J.A.). [ 48 ] The harm that is occasioned by sexual violence against children is inherent and always exists whenever sexual contact with a child takes place. The harm is both physical and psychological: Friesen at para 77 . Furthermore, the harm to a victim of sexual violence may not manifest itself by the time of sentencing but may develop many years later.

This was explained at para 81 of Friesen : Sexual violence against children also causes several forms of long-term harm that manifest themselves during the victim’s adult years. First, children who are victims of sexual violence may have difficulty forming a loving, caring relationship with another adult as a result of the sexual violence. Second, children may be more prone to engage in sexual violence against children themselves when they reach adulthood ( Woodward , at para. 72; D. (D.) , at paras. 37-38).

Third, children are more likely to struggle with substance abuse, mental illness, post-traumatic stress disorder, eating disorders, suicidal ideation, self-harming behaviour, anxiety, depression, sleep disturbances, anger, hostility, and poor self-esteem as adults (Bauman, at p. 355; Goldfinch , at para. 37; R. v. L.V. , 2016 SKCA 74 , 480 Sask.R. 181, at para. 104 , citing D. Todd, “Sentencing of Adult Offenders in Cases Involving Sexual Abuse of Children: Too Little, Too Late? A View From the Pennsylvania Bench” (2004), 109 Penn. St. L.

Rev. 487, at pp. 509-10). [ 49 ] Therefore, when assessing the gravity of an offence relating to sexual violence against children, it is necessary to consider whether there is a reasonably foreseeable potential for harm that is not yet manifest at the time of sentencing: Friesen at para 84 . [ 50 ] With respect to making child pornography, the Supreme Court in Sharpe at para 92 explained that the very existence of child pornography is inherently harmful to children and to society.

The harm exists independently of any dissemination or risk of dissemination and flows directly from the existence of the pornographic representations, which on their own violate the dignity and equality rights of children. The harm is inherent and can have a devastating impact. [ 51 ] The harm or likely harm inflicted by Ms. Wallis is very high in this case. This is demonstrated by the victim impact statement that was provided by H.B. The Supreme Court in Friesen described the victim impact statement as the “best evidence” of the harm that the victim has suffered (para 85).

In her statement H.B. explains that the offending of Ms. Wallis has affected almost every aspect of her life, both from a physical perspective and a mental health perspective. She reports that her body is always tense and in pain due to the trauma; she has contracted syphilis and herpes; she is taking medication for PTSD, anxiety and a sleep disorder. She has developed unhealthy coping skills including the use of drugs and alcohol as self medication. She struggles with intimacy and with her partners.

She is fearful of going out in the community. [ 52 ] I conclude that the offences have had a profound impact on H.B. and these impacts will continue to plague her into the future, and potentially throughout her lifetime. [ 53 ] No victim impact statement was provided by B.L., and thus there is no direct evidence regarding harm to her. However, as Friesen notes at para 86 , direct evidence of harm is not required and actual harm can be found based upon the circumstances surrounding the commission of the offence. In the case of B.L., the sexual violence occurred while Ms. Wallis was in a position of trust.

That trust was violated. Furthermore, there were multiple instances of sexual violence over a period of approximately 3 months and the sexual violence involved sexual touching by not just Ms. Wallis, but also by clients that Ms. Wallis sought out and forced upon B.L. In these circumstances, I infer that B.L. has actually experienced, or there is a reasonably foreseeable potential that she will suffer, many of the same harms as those experienced by H.B. [ 54 ] I conclude that the conduct of Ms.

Wallis has had a very great impact on the victims and has caused them profound and substantial harm which will have long lasting and devastating consequences. (ii) Harm to Society and its Values [ 55 ] Persons who are in a position of trust in relation to children owe a duty to protect those children from harm. Sexual offending in these circumstances constitutes a grave breach of trust. These types of breaches can and do harm society and its values and did so in this case. In Arcand , at paragraph 179 , the Alberta Court of Appeal expressed a similar principle in the context of a sexual assault on an adult:

There is another aspect of the harm caused by an offender who commits a major sexual assault. That is the harm caused to society by thiskind of criminal activity. Harm to one member of the community affects the rights and security of others. This is particularly striking incases involving violence against women. [56] This concern was further explained in Friesen at paragraphs 62 to 63 where the Supreme Court observed that sexual violenceagainst children can have ripple effects on the child’s parents, caregivers and family members who can also suffer profound harm.

Butbeyond this, sexual violence can harm the broader community. At paragraph 64 of Friesen the Court explained: Beyond the harm to families and caregivers, there is broader harm to the communities in which children live and to society as a whole.Some of these costs can be quantified, such as the social problems that sexual violence against children causes, the costs of stateintervention, and the economic impact of medical costs, lost productivity, and treatment for pain and suffering (see Hajar, at para. 68; R.v.

Goldfinch, 2019 SCC 38, at para. 37; United Nations, Report of the independent expert for the United Nations study on violenceagainst children, U.N. Doc. A/61/299, August 29, 2006, at p. 12). In particular, children who are victims of sexual violence may be morelikely to engage in sexual violence against children themselves when they reach adulthood (D. (D.), at paras. 37-38).

Sexual violenceagainst children can thus fuel a cycle of sexual violence that results in the proliferation and normalization of the violence in a givencommunity (Standing Senate Committee on Human Rights, The Sexual Exploitation of Children in Canada: the Need for NationalAction, November 2011 (online), at pp. 10, 30 and 41). In short, the costs that cannot be quantified are also profound. Children are thefuture of our country and our communities. They deserve to have a childhood free of sexual violence (Hajar, at para. 44).

When childrenbecome victims of sexual violence, “[s]ociety as a whole is diminished and degraded” (Hajar, at para. 67). [57] I conclude that the conduct of Ms. Wallis has caused harm to society and its values. 2. Degree of Responsibility of Offender [58] All forms of sexual violence, whether perpetrated against adults or children, are morally blameworthy precisely because theyinvolve the wrongful exploitation of the victim by the offender. This is because the offender is treating the victim as an object anddisregarding the victim’s human dignity: Friesen at para 89.

Moreover, the fact that the victim is a child increases the offender’s degreeof responsibility because of the vulnerability of the child. [59] Ms. Wallis committed these offences for her own financial gain, for her own sexual gratification and for the sexualgratification of others. She knew that her conduct was wrong or was willfully blind in that regard. The sexual violence took place incircumstances where both H.B. and B.L. were vulnerable. Furthermore, this was not a single act but a pattern of unlawful conduct whichinvolved multiple sexual assaults, some of which were video recorded.

Even more egregious, the offending involved breaching the trustowed to the two victims by leading them into prostitution at ages 15 and 16. Ms. Wallis was either aware that this conduct would beharmful to H.B. and B.L. or she was wilfully blind in that regard. Her moral culpability is very high at least in terms of the mens rea levelof intent. [60] However, there is another aspect to the “degree of responsibility” which I must consider in connection with the proportionalityprinciple.

Parliament intended that when assessing the degree of responsibility of an offender, other factors such as the offender’spersonal circumstances, mental capacity or motive for committing the crime must also be considered. There is some evidence in the Pre-Sentence Report that Ms. Wallis had a very difficult upbringing during which time she was subjected to sexual abuse, physical abuse andverbal abuse. She also suffered from a number of medical conditions for which she was medicated. These circumstances have somemoderating effect on her moral culpability. [61] Even considering the difficult circumstances that Ms.

Wallis experienced as a child and the somewhat diminished moralculpability that arises from this, I conclude that the degree of responsibility of Ms. Wallis tends toward the higher end of the spectrumbut is not at the highest end of the spectrum.

c) Aggravating and Mitigating Factors [62] I am required by s. 718.2 to ensure that the sentence is “increased or reduced to account for any relevant aggravating ormitigating circumstances relating to the offence or the offender.” 1. Mitigating Circumstances [63] The first mitigating factor is that Ms. Wallis offered a guilty plea. By entering a guilty plea, she has waived her right to a trialand has also waived some of her constitutional rights in deference to expeditious justice: R v Sandercock (1985), 1985 ABCA 218, 22 CCC (3d) 79 (Alta CA) at para 23.

The trial would have been long and expensive for the state. Consequently, Ms. Wallisshould be given credit for avoiding this. [64] More significantly, a guilty plea is mitigating because the plea avoids the need for the two young and vulnerable victims totestify in court and to re-live, in a public forum, the trauma of the offending behaviour. In this case the victims have been spared the needto testify at trial, which would have occurred if no guilty plea had been offered. This is deserving of significant mitigation credit, eventhough the Crown had a strong case against Ms.

Wallis. [65] The second mitigating factor is remorse which, if genuine, can be a mitigating factor that affects the sentence: R v Spina(1997), 1997 ABCA 235 , 200 AR 133 (Alta CA) at 137. Ms. Wallis has expressed regret for her involvement with theseoffences. She does, however, deflect responsibility by blaming MM. Nevertheless, she has acknowledged the harm to the victims and hasaccepted responsibility. This is evidence of remorse and is mitigating. [66] Ms. Wallis has no prior criminal record and was thus a person of good character.

But the lack of a criminal record is not amitigating factor: R v Tettersell, 2012 ABCA 57 at para 7; R v MGF, 2010 ABCA 102 at para 17. Despite this, her lack of a criminal

record is an important part of her personal circumstances that needs to be considered when imposing a fit and proper sentence. 2. Aggravating Circumstances [67] The Agreed Statement of Facts discloses circumstances that give rise to numerous aggravating factors. These are thefollowing:

a) Ms. Wallis was in a position of trust vis-a-vis both H.B. and B.L. This is an aggravating factor that is mandated by s 718.2(a)(iii):Friesen at para 125;

b) At the time of these offences, both H.B. and B.L. were under 18 years of age.

Section 718.2(a)(ii.1) requires that this be consideredto be an aggravating factor;

c) The degree of violation of H.B. and B.L. was substantial and involved sexual intercourse and other acts that amount to major sexualassaults: Friesen at para 138;

d) Both H.B. and B.L. were vulnerable persons and Ms. Wallis took advantage of this by grooming them to facilitate the commissionof the offences and to manipulate H.B. into performing sex acts that she did not want to perform;

e) The assaults occurred over several weeks and involved multiple major sexual assaults: Friesen at para 131;

f) Ms. Wallis supplied both of the victims with crystal meth during the time that the sexual offending was taking place: R v BSM,2011 ABCA 105 at para 13(e) [BSM];

g) Ms. Wallis committed sexual violence against H.B. and B.L. in coordination with multiple other persons including MM and thecustomers she arranged to pay for sexual services provided by H.B and B.L.: Friesen at para 17;

h) The sex acts involving H.B. and B.L. were undertaken without the use of condoms, thus exposing both to the risk of pregnancy andsexually transmitted disease: Friesen at para 139; and

i) With respect to procuring, the offence involved planning and deliberation along with some sophistication to attract clients for thework Ms. Wallis required H.B. and B.L. to perform as escorts.

d) Parity [68] The sentence which I impose should be similar to sentences imposed on similar offenders who have committed similaroffences in similar circumstances: s 718.2(

b) of the Criminal Code. In considering the concept of parity it is frequently helpful toconsider sentencing decisions of other courts in relation to similar offences. However, while these decisions may provide some guidancein fixing an appropriate sentence, the facts and the circumstances of the offenders in other cases are rarely identical, and thus, othersentencing decisions are of limited value as precedent: BSM at para 7. [69] With respect to offences involving sexual violence against children or young persons, previous decisions may be of even lessutility.

This is because Parliament passed a number of amendments to the Criminal Code in 2015 to increase the sentences for sexualoffences against children and to impose greater mandatory minimum sentences. These changes are summarized in the Appendix toFriesen.

Therefore, sentencing decisions that predate 2015 (and which predate Friesen in 2020) must be read with considerable cautionbecause the older sentencing decisions do not reflect Parliament’s intention that sentences should increase, nor do the earlier decisionsreflect the deepening understanding that courts have regarding the gravity and harmfulness of sexual violence against children: Friesenat para 108 to 110; R v Lemay, 2020 ABCA 365 at para 50. [70] Furthermore, the Supreme Court in Friesen gave direction regarding sentencing in relation to sexual violence against children.While being careful not to set any specific sentencing ranges or to set out any binding or inflexible quantitative guidance, the Courtendorsed the reasons of Moldaver J.A. (as he then was) in R v DD (2002), (ON CA), 58 OR (3d) 788 (Ont CA) atpara 45: The appellant was prepared to risk the lives of innocent children to satisfy his sexual cravings.

His conduct was reprehensible and it mustbe condemned in the strongest of terms. The harm occasioned by the appellant and others like him is cause for grave concern. Childrenare robbed of their youth and innocence, families are often torn apart or rendered dysfunctional, lives are irretrievably damaged andsometimes permanently destroyed.

Because of this, the message to such offenders must be clear -- prey upon innocent children and youwill pay a heavy price! (emphasis added) [71] The strong message from the Supreme Court in Friesen at para 114 is that mid-single digit penitentiary terms for sexualoffences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual norreserved for rare or exceptional circumstances. The Court also noted that these sentences can be imposed where there was only a singleinstance of sexual violence and/or a single victim.

Finally, the Court made it clear that maximum sentences should not be reserved for the“abstract case of the worst crime committed in the worst circumstances.” Instead, a maximum sentence should be imposed whenever thecircumstances warrant it.

e) Totality Principle–

Section 718.2(c) [72]

Section 718.2(

c) of the Criminal Code requires a court that imposes consecutive sentences to “take a final look” to determinewhether the sentence is unduly harsh or long: R v Kottusch, 2015 ABCA 93 at para 11. Therefore, the totality principle requires asentencing judge who orders consecutive sentences to ensure that the cumulative sentence does not exceed the overall culpability of the

offender. Where sentences are properly made consecutive, the sentencing judge should review the aggregate sentence and considerwhether the aggregate sentence is just and appropriate: R v CAM, (SCC), [1996] 1 SCR 500 at para 42. For a sentenceto be unduly long or harsh, it must not simply be above the normal range for the most serious offence, but must exceed what isappropriate given the offender’s overall culpability: R v May, 2012 ABCA 213 at para 15; R v Virani, 2020 ABCA 342 at para 10. [73]

Section 718.3(7) mandates that when sentencing for more than one sexual offence committed against a child, any sentenceimposed in relation to child pornography offences must be consecutive to the other sentences imposed. Further, any sentence imposed inrelation to a sexual offence against one child must be consecutive to any sentence imposed in relation to a sexual offence imposed againstanother child. However, s 718.3(7) must be read together with s 718.2(c).

Thus, it is proper to consider the totality principle as aqualification on s 718.3(7) when imposing sentences for other offences for which mandatory minimum penalties do not apply: R vAhmed, 2019 ONSC 4822. [74] In Friesen, at para 155, the Supreme Court explained the general rule is that offences that are so closely linked to each otheras to constitute a single criminal adventure may, but are not required to, receive concurrent sentences, while all other offences are toreceive consecutive sentences (see, e.g., R v Arbuthnot, 2009 MBCA 106 at paras 18-21; R v Hutchings, 2012 NLCA 2 at para 84; R vDesjardins, 2015 QCCA 1774 at para 29). [75] In R v Roberts, 2020 ABCA 434 at para 31, the Court of Appeal provided guidance in relation to the circumstances in whichto impose consecutive sentences.

In particular, the Court emphasized that no matter the approach, the final sentence imposed must satisfythe proportionality principle: [W]e decline to set down any bright lines as to when it is appropriate to impose consecutive sentences. The decision is a discretionaryone and reviewed with deference: R v McDonnell, (SCC), [1997] 1 SCR 948, sub nom R v M(TE), 196 AR 321.Consecutive sentences are regulated by the principles of totality and restraint, to ensure the overall sentence is not unduly harsh.Concurrent sentences may need to be augmented to reflect the gravamen of the overall criminal conduct. ...

The point is that multiple,appropriate pathways may be taken if they lead to a proportionate sentence. This is the central fundamental principle of sentencing.

Thesentence must be proportionate to the gravity of the offence and degree of responsibility of the offender. [76] See also: R v Morton, 2021 ABCA 29 at para 32. [77] In the present case, I conclude that the sentence in relation to making child pornography must be consecutive to the sentencesin relation to the other two offences because that is mandated by s 718.3(7)(a), subject to a final look at the overall sentence to complywith the totality principle. [78] I also conclude that the sentences in relation to sexual exploitation and procurement must be consecutive.

The offences werecommitted in close proximity in terms of time. However, the nature of the offences and the elements of the offences are quite distinct. Asa result, I conclude that consecutive sentences are required, subject to a final assessment in relation to totality. [79] I will return to consider the application of the totality principle later in these reasons. VI. Sentences for Each Offence [80] The Defence argues for a global sentence of 6 to 8 years in custody and would allow me to allocate that sentence in themanner I think best.

However, a global sentence in that range would simply not reflect the gravity of the offence or the moral culpabilityof Ms. Wallis. Such a sentence would require me to ignore the direction from the Supreme Court in Friesen. As a result, I am not able toaccede to the submissions of the Defence. Instead, I must determine a fit and proper sentence for each of the offences to which Ms.Wallis has pleaded guilty.

a) Count 2 - Sexual Exploitation [81] While the Alberta Court of Appeal has not definitively established a starting point sentence for the offence of sexualexploitation, it has observed that it is quite proper to analogize this type of case to the four-year starting point established in R v WBS(1992), (AB CA), 127 AR 65 (CA) for sexual assault on a child where there is a relationship of trust: R v Vigon, 2016ABCA 75 at para 11 [Vigon]. [82] In EJB, a pre-Friesen decision, the Court of Appeal imposed a 4-year sentence for sexual exploitation.

In that case the 37-year-old offender was the uncle by marriage of the complainant who was 16 years of age. For a period of approximately 6 weeks theoffender had sexual contact with the complainant including 6 instances of penile vaginal intercourse. The Court of Appeal overturned theConditional Sentence Order imposed by the sentencing judge and substituted a 4-year sentence after reviewing a number of priordecisions suggesting a range of sentences of approximately 4 years to 6 ½ years.

In arriving at the 4-year sentence, the Court of Appealnoted the offender’s high level of moral culpability and the actual harm to the complainant, which was evidenced by increased drug useand strained family relationships. The Court also considered the vulnerability of the victim as a troubled teenager, the significant agedifference and the fact that no condom was used. [83] In Vigon, another pre-Friesen decision, the Court of Appeal imposed a 4-year sentence for sexual exploitation, 1-yearconsecutive for production of child pornography and 6 months consecutive for luring.

In that case, the 35-year-old offender had a seriesof overlapping trust relationships with the 16-year-old complainant: as school basketball coach, community league basketball coach, employer, and family friend. He began a relationship with the complainant prior to her 16th birthday and immediately thereafter began asexual relationship that involved sexual intercourse and the production of child pornography. When increasing the sentence to 4 years forsexual exploitation, the Court of Appeal noted the harm to the complainant and the numerous aggravating circumstances.

[ 84 ] It is often difficult to use past cases as comparators because no two cases are identical. However, I observe that while EJB and Vigon are similar in many respects, the aggravating circumstances in relation to Ms. Wallis are more significant than they were in either EJB or Vigon . In particular, the use of crystal meth to facilitate the offending and the involvement of MM in the sexual acts that constituted the sexual exploitation make the gravity of this case higher than either of the other cases.

Thus, even pre- Friesen , something in excess of 4 years would have been warranted as a sentence in relation to Count 2 – sexual exploitation. [ 85 ] The Crown advises that given the guidance in Friesen , a range of sentences for the sexual exploitation should be between 5 years and 7 years.

The Crown suggests that a fit and proper sentence for the sexual exploitation of H.B. should be 5 years. [ 86 ] I conclude that given the aggravating and mitigating circumstances in this case, and given the strong message delivered in Friesen , a sentence of 5 years is at the low end of what would be proportionate for the sexual exploitation. However, in light of the submissions made by the Crown, I conclude that 5 years is a fit and proper sentence in relation to Count 2 on the Indictment - sexual exploitation.

b) Count 3 – Making of Child Pornography [ 87 ] The Crown has provided me with a large number of cases to assist in arriving at a fit and proper sentence in relation to the making of child pornography. In R v DCH , 2020 ABQB 510 [ DCH ], the 35-year-old offender pleaded guilty to one count of invitation to sexual touching, one count of making child pornography and one count of accessing child pornography. The complainant was 4 years old at the time and the offender was her piano teacher.

The video that was the subject of the charge was 1 minute and 31 seconds long and it showed the complainant undressing while the camera focused on her genitals as she was directed to touch the offender’s penis which, while erect, was covered by his clothing. Justice Labrenz conducted a thorough review of the case law before imposing a 1-year consecutive sentence in relation to the making of child pornography count.

He observed that he would have given a higher sentence but for the fact that he had already increased the sentence for invitation to sexual touching and it was necessary to avoid any double counting. [ 88 ] In R v RH , 2019 ONCJ 892 at para 22 , aff’d on appeal by 2021 ONCA 236 , the Court also imposed a 1-year consecutive sentence for making child pornography. In that case the 53-year-old offender sexually abused the child of a friend over a period of a number of years and recorded some of the instances of abuse.

The sentencing judge imposed a 5-year sentence for sexual interference and the 1-year consecutive sentence for making child pornography along with 1 year concurrent for accessing child pornography. [ 89 ] Higher sentences have also been imposed for making child pornography. In R v CH , 2021 ABPC 119 , the Court imposed a 3- year sentence for making child pornography as part of an overall 8-year sentence that was reduced by reason of totality to 7.5 years, in part relying on the direction given by the Supreme Court in Friesen .

The 28-year-old offender made a video documenting his sexual interference with a 3-year-old child wrestling naked with him and spreading the child’s buttocks to focus on his anus. The offender had a difficult upbringing, was remorseful and had insights into his actions. He was determined to have a moderate risk to re-offend. [ 90 ] A 10-year sentence was recently imposed after trial in R v AAJT , 2021 MBQB 3 [ AAJT ] for making child pornography as part of an overall 30.5-year sentence that was reduced to 22 years to account for totality.

The circumstances were particularly egregious in that case because of the age of the child and the involvement of the mother of the child in the sexual offending, the length of time over which the offending occurred and the extraordinary amount of child pornography produced. It is not comparable to the present case. [ 91 ] In this case Ms. Wallis made videos that show her and MM engaging in a full range of penetrative sexual acts with both H.B. and B.L. The videos are explicit and very disturbing. They are abusive and extremely degrading.

She also made still photos that constitute child pornography to promote her business enterprise and, in this way, to obtain clients for H.B. and B.L. [ 92 ] The nature of the videos is much more serious and degrading than the video in DCH , but not nearly as egregious as the child pornography that was made in AAJT . [ 93 ] The Crown argues that a range of sentences for this offence is 1 to 3 years in custody.

The Crown suggests that a sentence at the high end of that range would be fit and proper. [ 94 ] When I consider the whole of the circumstances, I conclude that a sentence in the mid range proposed by the Crown would be fit and proper. As a result, I conclude that a sentence of 2 years in custody would be appropriate in relation to Count 3 - making child pornography.

c) Count 7 – Procuring a Person Under 18 Years of Age [ 95 ] The offence of procuring a person under the age of 18 was added to the Criminal Code in 2014 as part of a package of amendments in response to the decision of the Supreme Court of Canada in R v Bedford , 2013 SCC 72 . [ 96 ] The seriousness with which Parliament views the offence is demonstrated by the maximum sentence of 14 years and the mandatory minimum sentence of 5 years. This mandatory minimum sentence has been found to be unconstitutional in Ontario: R v Boodhoo , 2018 ONSC 7207 ; R v Safieh , 2018 ONSC 4468 .

However, this provision of the Criminal Code remains in effect in Alberta. Ms. Wallis does not challenge its constitutionality in the present case. [ 97 ] There are no reported sentencing decisions in Alberta that deal with this offence. However, there is a body of case law that addresses the former provisions in the Criminal Code that dealt with the offence of “living off the avails”. The leading case in relation to that offence is the decision of the Alberta Court of Appeal in Tang .

In that case the Court identified a whole panoply of factors that must be considered in arriving at a fit and proper sentence for that offence. I am satisfied that the factors identified in Tang are equally applicable in relation to the new offence of procuring a person under 18. They are:

i. The degree of coercion or control imposed; ii. The amount of money received by the offender as opposed to the amount of money the victim received; iii. The age of the victim; iv. The number of victims the offender controlled; v. The vulnerabilities of the victim; vi. The working conditions of the victim; vii. The level of planning and deliberation; viii. The size of the offender’s operations; ix. The duration of the exploitive conduct; x. The degree of violence used by the offender; xi. The extent of inducements such as drugs or alcohol employed; xii.

The effect that the exploitive behaviour had on the victim; and xiii. The extent to which the offender demanded or compelled sexual favours from the victim. [98] In Tang, the offender was convicted of living off the avails of prostitution. He had solicited and provided customers for twochildren ages 13 and 14 and provided living accommodations for them where they engaged in acts of prostitution. The sentencing judgenoted that the offender had no prior criminal record and was gainfully employed in another profession while the offences were beingcommitted.

There was no violence in compelling the cooperation of the two children and the enterprise was short lived. The sentencingjudge imposed a 5-year sentence plus one-year consecutive for keeping a common bawdy house. Tang appealed his sentence for livingoff the avails.

The Court of Appeal dismissed the appeal but identified the factors that should be considered in arriving at sentences forthe offence. [99] The Crown has cited a number of decisions from other provinces in relation to sentences for procuring a person under 18.Those decisions include: R v Tazike, 2019 ONCJ 819 [Tazike]; R v Alezis-McLymont and Elgin and Hird, (ON SC),2018 ONSC 1389; R v Crosdale, 2019 ONCJ 3; R v Webber, 2019 NSSC 147.

In Tazike at para 25 the Court summarized the range ofsentences for this offence in the following way: The range of custodial sentences imposed under s. 279.011, and 286.3 is mid-single digit penitentiary terms, see R. v. Crosdale 2019ONCJ 3 , [2019] O.J. No. 77 (OCJ). In this case there is no constitutional challenge to the mandatory minimum sentence ofimprisonment of 5 years under s. 279.011 (

b) or 286.3. Jail terms climb quickly depending on the number of victims, use of threats andviolence to maintain compliance with the pimp. At one extremity are cases like R. v. Moazami 2015 BCSC 2055 (23 years) and R. v.Rose 2019 MBCA 40 (21 years) involving several victims. At the other end of the scale is R. v. Finestone 2017 ONCJ 22 (4 years) and R.v. D.A. 2017 ONSC 3733 (3.5 years) where the offender exploited a single prostitute for relatively short period of time. I agree withBoswell J.’s observation in AE (supra) at par. 53 that, Identifying a sentencing range for human trafficking offences is not easy.

The offence may be committed in a wide variety ofcircumstances. Sentences naturally tend to reflect the individualized, context-driven nature of the exercise. [100] It should be noted that Tazike and the other cases cited by the Crown all predate Friesen and therefore must be viewed in thatlight. [101] The Crown argues that the proper range of sentences for this offence, in the circumstances of Ms.

Wallis, is 5 to 10 years. [102] Given that the mandatory minimum sentence is 5 years, the low end of the range proposed by the Crown is understandable.However, even absent the mandatory minimum the low end of the range would still be established by Tang, which involved the lessserious Criminal Code offence of living off the avails and still resulted in a 5-year sentence. Tang also involved circumstances that weremuch less aggravating than in the present case. [103] The Tang factors should be considered in arriving at a fit and proper sentence. The factors that contribute to the gravity of theoffending of Ms.

Wallis are: • A high level of coercion or manipulation was used by Ms. Wallis, particularly with respect to H.B. to ensure her cooperation toperform the sex acts with customers; • There were two victims in this case, H.B. and B.L.; • Both H.B. and B.L. were vulnerable young persons; • The scheme involved a fairly significant degree of planning and deliberation to arrange for the photography and to post andmanage the advertisements on LeoList and then to coordinate with the prospective customers; • The exploitive conduct was conducted over a period of 2 to 3 months;

• Crystal meth was used as an inducement to compel the cooperation of H.B. and B.L. to participate in the work as escorts; • The conduct of Ms. Wallis had a profound impact on H.B. and B.L. as I have previously outlined; and • Ms.

Wallis demanded or compelled sexual favours from both H.B. and B.L. for both herself and for MM. [ 104 ] Given these factors, in combination with the aggravating and mitigating factors that I have earlier referred to, I conclude that the range of sentence proposed by the Crown is reasonable, being 5 to 10 years. [ 105 ] The Crown seeks a sentence of 6 years in relation to the offence of procuring. This position is taken by the Crown in anticipation that some totality adjustment would be required if a higher sentence was sought.

Absent that consideration the Crown would have sought a sentence of 8 years. [ 106 ] I conclude that the offending behaviour of Ms. Wallis is much more serious than that described in Tang where a 5-year sentence was imposed. Furthermore, in light of Friesen , sentences for this type of offence must rise. [ 107 ] I conclude that a sentence well above the mandatory minimum 5 years would be fit and proper in this case. The Crown seeks a 6-year sentence which is, in my view, at the very low end of what would be reasonable.

Nevertheless, I accept the recommendation of the Crown and conclude that a sentence of 6 years is fit and proper in relation to Count 7 – Procuring a person under age 18.

d) The Global Sentence [ 108 ] In all of the circumstances, I conclude that before any consideration of totality, a fit and proper sentence for the three offences for which Ms. Wallis has pleaded guilty is a total period of incarceration of 13 years. VII. Totality [ 109 ]

Section 718.2(

c) requires that I “take a final look” at the consecutive sentences to determine whether the overall sentence is unduly harsh or long. In considering this issue I take into consideration that Ms. Wallis is still a young woman, 24 years of age at the time of the offences and 27 currently. She has no prior criminal record. She has some diminished moral culpability due to her difficult upbringing including the history of being a victim of sexual, physical and verbal abuse, and the medical conditions she suffered while a youth.

But I also take into consideration the gravity of the offences and the impact that they have had upon the victims, particularly H.B. I also take into consideration the aggravating factors and the mitigating impact of the guilty plea. [ 110 ] When I consider all of these factors, I conclude that a sentence of 13 years in custody is unduly long and harsh because the sentence exceeds what is appropriate given the overall culpability of Ms. Wallis.

In coming to this conclusion, I take into consideration the direction from the Supreme Court in Friesen that “mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances.” While a “double-digit” penitentiary sentence is certainly required here, I conclude that a sentence of 13 years offends totality. [ 111 ] For these reasons, I reduce the sentence by 2 years to arrive at an 11-year sentence in service of the totality principle. [ 112 ] To achieve a global sentence of 11 years, I reduce the sentence for sexual exploitation to 4 years from 5 years and reduce the sentence for making child pornography from 2 years to 1 year.

VIII. Final Sentence [ 113 ] The sentence that I impose is therefore: • Count 2 – Sexual Exploitation – 4 years • Count 3 – Making Child Pornography – 1 year • Count 7 – Procuring a Person under 18 – 6 years [ 114 ] These sentences are all consecutive for a total sentence of 11 years. [ 115 ] Credit for pre-disposition custody on a 1.5 to 1 basis will be given for the time Ms. Wallis has been in custody. Ms. Wallis was in custody in relation to these charges from September 18, 2020 to May 6, 2021 and again from May 20, 2021 to October 13, 2021. She therefore has been in custody for 378 actual days.

I give credit at 1.5 to 1 for this time in custody. As a result, she has available for credit 567 enhanced days or 18.9 months. I would round this to 19 months and deduct this from the gross sentence. [ 116 ] The net sentence is therefore 9 years and 5 months. IX. Ancillary Orders [ 117 ] In addition to the custodial sentence I order the following:

1. Ms. Wallis shall provide a sample of her DNA in accordance with s 487.051 of the Criminal Code . 2. Ms. Wallis shall register and maintain compliance with the Sex Offender Information Registration Act for life. 3. Pursuant to s 109(1) of the Criminal Code , Ms. Wallis is prohibited from owning or possessing any of the weapons referred to in s 109(2)(

a) of the Criminal Code for 10 years following her release from imprisonment and with respect to those weapons referred to in s 109(2)(

b) for life. 4. Ms. Wallis is prohibited from communicating directly or indirectly with H.B. and B.L. during the period of time she is in custody pursuant to s 743.21 of the Criminal Code . 5. Ms. Wallis is prohibited, pursuant to s 161(1)(

b) of the Criminal Code , from seeking or continuing employment or being a volunteer in any capacity involving being in a position of trust or authority towards persons under the age of 16 for a period of 10 years following her release from imprisonment. [ 118 ] I decline to make the order under s 161(1)(

c) that had been sought by the Crown since I conclude that this additional protection is not necessary for the protection of the public. Heard on the 4 th day of May 2021 and the 10 th day of September, 2021. Dated at the City of Edmonton, Alberta this 13 th day of October, 2021. John T. Henderson J.C.Q.B.A. Appearances: James Rowan and Danielle Fostey for the Crown Brian Hurley for the Accused