R v Roy, 2023 ABCJ 262

In the Alberta Court of Justice Citation: R v Roy, 2023 ABCJ 262 Date: 20231130 Docket: 210073649P1 Registry: Calgary Between: His Majesty the King Crown - and - Jeremie Roy Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify TP must not be published, broadcast, or transmitted in any way.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. Decision of the Honourable Justice G.D.M. Stirling Introduction [ 1 ] Mr. Roy pleaded guilty to one count of making child pornography contrary to

section 163.1(2) of the Criminal Code and one count of luring a child contrary to

section 172.1(1) of the Criminal Code . The Crown proceeded by indictment.

[ 2 ] The issue before me is to determine a fit sentence. [ 3 ] Sentencing submissions were made prior to the Supreme Court of Canada’s decision in R v Marchand , 2023 SCC 26 released on November 3, 2023. By letter dated November 9, 2023, counsel for the Crown and defence referred me to certain portions of the decision relevant to their earlier sentencing submissions.

The parties also acknowledged that the SCC struck down the mandatory minimum sentence for child luring when prosecuted by indictment. [ 4 ] The Crown argues that the primary sentencing principles are denunciation and deterrence and that a period of incarceration between 15-18 months followed by two years’ probation is necessary to give effect to the primacy of denunciation and deterrence. [ 5 ] The Defence seeks a 2-years-less-a-day conditional sentence order (CSO) – or, alternatively, 90 days’ intermittent jail – followed by two years’ probation. [ 6 ] For the reasons the follow I impose a conditional sentence of two years less a day with restrictive conditions followed by two years of probation.

I also impose a 20-year SOIRA order, a requirement that Mr. Roy provide his DNA and an order under

section 161. Facts [ 7 ] An Agreed Statement of Facts (“ASF”) was marked as an exhibit at the sentencing hearing. The facts are summarized as follows. [ 8 ] Regina Police Service received a report from 13-year-old TP that she had been Snapchat messaging with an unknown person using her friend MK’s cellphone. The unknown person, later identified as Mr. Roy, had identified himself as a 23-year-old male named Jeremie. As ‘Jeremie,’ Mr.

Roy sent TP an image of an erect penis and two headshots of himself, counselled TP to touch her vagina, asked her to send him sexually explicit images (which she did), and suggested to her that they meet to engage in sexual activity. This conversation happened over the course of one day. [ 9 ] MK’s mother gave the Regina Police MK’s cellphone for forensic analysis. The analysis showed the unknown person’s Snapchat username as ‘jeremie_legac19.’ The United States Department of Homeland Security gave the Regina Police information connecting the jeremie_legac19 account to an IP address and cellphone number.

General Production Order results from Bell and Shaw confirmed that the cellphone number belonged to Mr. Roy and the IP address belonged to Mr. Roy’s mother at the Red Deer residence where she and Mr. Roy lived. Red Deer RCMP obtained and executed a search warrant at the residence, seizing five electronic devices. [ 10 ] Forensic analysis of the seized devices found the Snapchat conversation between Mr. Roy and TP, including the three images he sent her, and found a total of 102 chats (across various chat programs) in which either the recipient disclosed that they were underaged and Mr.

Roy continued to have sexual related conversation with them, or Mr. Roy told the recipient(

s) that he wanted to or did have sexual encounters with underaged persons. Offender’s Circumstances [ 11 ] Mr. Roy is 36 years old and was 32 years old at the time of the offence. He does not have a criminal record. He is not in an intimate relationship, has never been married, and has no children. He lives with his mother. He works about 40 hours a week as a fulfillment coordinator at a farming and resources co-operative. Pre-Sentence Report [ 12 ] A Pre-Sentence Report (“PSR”) was marked as an exhibit at the sentencing hearing. [ 13 ] Mr.

Roy told the PSR writer that he does not remember his conversation with TP. He was speaking to a number of individuals on chat programs at the time and is extremely embarrassed by his actions. Mr. Roy is not sure if we will ever engage in online social behaviour again but told the PSR writer that if he does, he will be more cautious about who he interacts with, and how he interacts with them. [ 14 ] Mr. Roy’s immediate family include his mother, his stepfather, whom he knows as his “dad,” and his younger half-brother. Mr. Roy learned at age 12 that his “dad” is not his biological father. Mr.

Roy’s biological father CL left Mr. Roy’s mother when he found out she was pregnant with Mr. Roy, saying he did not want to be a father. Mr. Roy met CL a couple of times to try to build a relationship with him but gave up after CL had no interest in doing so. While his mother and dad were married, Mr. Roy moved around a lot because of his dad’s employment. When Mr. Roy was about 12 years old, his mom and step-father divorced. Two years later, Mr. Roy’s mom married her second husband, RM. Mr. Roy then moved to RM’s Texas residence with his mother and brother.

He lived back and forth between Alberta and Texas, but has been in Alberta since 2013, where he currently lives with his mom. [ 15 ] Growing up, Mr. Roy felt that his dad treated him differently from his brother. His dad was an alcoholic, as was CL. [ 16 ] Mr. Roy has a positive and close relationship with his mother. He currently lives with her. He is close with his brother, who still lives in Texas and a maternal uncle, who lives in Red Deer. [ 17 ] Mr. Roy’s mother says that he struggled in school, finding all aspects of schooling difficult. She said that Mr.

Roy attended a number of schools because of his dad’s transient employment, and because she relocated the family after her first divorce. She attributed Mr. Roy’s struggles in school to his moving schools and his diagnosed ADHD. Mr. Roy eventually started grade 10 in Texas, which was

the last grade he attended. [ 18 ] Mr. Roy has been employed for most of his adult life. He had worked full-time in industrial security but lost his security license pending the outcome of this matter. Mr. Roy told the PSR writer that he then secured several oilfield tickets in an effort to find a new career to support himself. Since the PSR was written, Mr. Roy secured employment as a fulfillment coordinator at a farming and resources co-operative, where he currently works about 40 hours a week. [ 19 ] According to the PSR writer, Mr.

Roy “feels as though the victim may have been somewhat affected by his actions but placed some of the blame on the victim.” FAOS Report [ 20 ] A report from Forensic Assessment and Outpatient Services was marked at an exhibit. The FAOS report mirrored many of the observations in the PSR. Mr. Roy added that his dad (i.e., his first stepfather) was an absent parent. He was 23 years old when he first met CL, his biological father, who gave no reason why he left the family. Mr. Roy told the FAOS Report writer that “it would have been nice to have grown up with a solid father figure.” He was bullied in school.

When he eventually returned to Texas at about 17 years old, Mr. Roy was not allowed to live in the family home and supported himself by working at a restaurant. He eventually returned to Alberta. . He later helped his mother move from Texas to Canada when she and her second husband divorced in 2013. He has been living with his mother since then, except for a six-month period when he had met someone and moved in with her. [ 21 ] Mr. Roy denies having had any issues with addiction. [ 22 ] Mr.

Roy recalls previous suicidal ideation in 2008 or 2009, being diagnosed with depression and ADHD, and briefly being treated with ADHD medications. He otherwise denied a history of mental health problems. [ 23 ] Mr. Roy’s first romantic relationship was when he was 17. It lasted six months. He has been engaged twice and told the FAOS Report writer that those relationships ended because one of his fiancées was unfaithful, and the other became violent and overdosed. [ 24 ] Mr.

Roy acknowledged that he has accessed pornography but denied ever being addicted to it, telling the FAOS Report writer that he previously watched porn “maybe twice per week” but stopped when this happened and no longer watches it. [ 25 ] When discussing these offences, Mr. Roy stated he “screwed up” by “talking to people on Snapchat that were underage.” He explained: “Snapchat... offers samples of people you might not normally meet. I met a girl and asked how old she was, and she said underage. She asked for a picture, so I sent one of my penis and I asked for one (a picture) back.

She sent one back and now I’m in trouble.” He explained that he did not specifically remember the victim saying she was 13 years of age before asking for and sending sexually explicit material but would have known it was legally and morally wrong at the time he engaged in those activities. [ 26 ] Mr. Roy told the FAOS Report writer that he “had no intentions of meeting up with” the victim for sex and “couldn’t afford to do that,” explaining why he would have nonetheless asked her to because “it continues the conversation, otherwise it stalls.” Mr.

Roy told the FAOS Report writer that his activities on Snapchat do not involve sexual fantasies of the individuals he communicates with or masturbation. He told the FAOS Report writer that he has had conversations with other underage individuals, but has never met up with any of them, adding: “I just want to talk to people to meet online and hang out, I just need some social communication.” He noted that when he makes comments regarding him and an individual perhaps meeting up, “this continues the conversation until they realize I’m full of shit and don’t want to meet up...

It gets lonely only talking to your dog and your mother.” [ 27 ] When the FAOS Report writer asked Mr. Roy how much he identifies with children, he responded “not really, we just have good conversations.” He indicated that he is simply starved for meaningful human connection, and that “any conversation would be nice, to know that someone would want to get to know me.” He stated he is mostly interested in women aged 25 to 40 years. [ 28 ] When asked who was hurt as a result of his actions, Mr.

Roy commented that he “sure[ly] ... hurt the victim, obviously” but is unsure how or to what extent, and that he “got hurt a little bit.” [ 29 ] The FAOS Report writer applied several offence risk tools: The Static-99R tool, the STABLE-2007, and the Child Pornography Offender Risk Tool (CPORT). The FAOS Report writer concluded that the results of the “risk assessment tools converge on a low-risk to reoffend ”. Letters of Reference [ 30 ] Mr. Roy’s mother and his stepfather provided letters of reference. Mr.

Roy’s stepfather says that “Jeremie is a kind gentle soul with his biggest downfall being his generosity” Jeremie has often given away more than he has ever kept, including his heart” The father says he is doing his best to understand the situation “as well as learn what [he] can do to assist him [Jeremie] through any rehabilitation he needs”. [ 31 ] Mr. Roy’s mother described her son as “kind and caring and loving, he would give anybody the shirt off his back”.

She also said that since having a heart attack in February 2023 he has taken care of many of the household responsibilities, and she does not know what she would do if he was sent to jail. She said “Jeremie is not a bad kid, he just made a bad mistake.” Crown Position

[32] The Crown references the Supreme Court’s call to increase sentencing for sexual offences against children in R v Friesen,2020 SCC 9 (“Friesen”), and denunciation and deterrence as being the primary sentencing principles. [33] The Crown also referred to portions of Marchand where the Court stated that the offence of child luring causes distinctdevelopmental and psychological harms to young victims that differs from the harms caused by in person physical contact and that suchconduct can lead to serious and lasting psychological consequences (para 38) The Crown referred to Paragraph 45 that: “contact driven luring is not necessarily more or less harmful than luring that leads to sexual abuse that occurs entirely online.

Theseverity of the harm caused by the online communication will depend on the individual offender and his or her offending goals theindividual characteristics of the victim and the unique dynamic between the offender and the victim. Defence Position [34] The defence argues that the Crowns sentencing position only gives weight to the primary objectives of denunciation anddeterrence. When balancing those primary objectives with other sentencing objectives including principles of restraint and rehabilitationa CSO is a fit disposition.

The defence notes that in Marchand the court does not rule out an intermittent sentence or a conditionaldischarge being a fit disposition in some circumstances with a CSO with strict probationary terms serving the objectives of deterrenceand denunciation. (see paragraphs 125 and 133) Legal Framework Fundamental purpose of sentencing [35] As set out in s. 718 of the Criminal Code, the fundamental purpose of sentencing is to protect society and to contribute, alongwith crime prevention initiatives, to respect for the law and maintenance of a just, peaceful and safe society by imposing just sanctionsthat have one or more of the objectives of denouncing unlawful conduct and harm done to victims, deterring the offender and others fromcommitting offences, separating offenders from society where necessary, assisting in rehabilitating offenders, to provide reparations forharm done to victims or the community and to promote a sense of responsibility in offenders and acknowledgement of the harm done tovictims or the community. [36] Under

section 718.1 it is a fundamental principle of sentencing that the sentence be proportionate to the gravity of the offenceand the degree of responsibility of the offender. [37] As stated in R v Lacasse, 2015 SCC 64 , [2015] 3 S.C.R. 1089, (“Lacasse”), ...proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on anoffender. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier thesentence will be.

In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also onthe moral blameworthiness of the offender. (para 12) [38] As in every sentencing, the sentencing judge must take into account all of the principles of sentencing articulated in section718 of the Criminal Code including the principles set out in

section 718.2, that is, a sentence should consider any aggravating ormitigating circumstances. [39]

Section 718.01 provides that when a Court imposes a sentence for an offence that involves the abuse of a person under the ageof 18 years, it shall give primary consideration to the objectives of denunciation and deterrence. [40] Under

section 718.2(a)(ii.1) it is statutorily aggravating that the offender in committing the offence, abused a person under theage of eighteen years. Sexual Offences Involving Children [41] In R v Friesen, 2020 SCC 9, (“Friesen”), the Supreme Court provided guidance to trial judges in sentencing for sexualoffences involving children. we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability andcause profound harm to children, families, and communities. Sentences for these crimes must increase.

Courts must impose sentencesthat are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed byParliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violenceagainst children.

Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching andongoing harm that it causes to children, families, and society at large. (para 9) [42] Friesen involved a charge of sexual interference, but the principles outlined in Friesen are relevant in sentencing for othersexual offences against children (para 44). [43] The Court directed that in determining a fit sentence, sentencing judges must “properly understand the wrongfulness of sexualoffences against children and the profound harm that they cause.” (para 50) [44] Friesen emphasized that the fact the victim is a child increases the offender’s degree of responsibility. “Put simply, the

intentional sexual exploitation and objectification of children is highly morally blameworthy because children are so vulnerable”. (para90) [45] The primacy of the sentencing objective under

section 718.01 prescribes a relative ordering of sentencing objectives withdenunciation and deterrence being of primary importance.

The sentencing judge’s discretion is limited such that “it is no longer open tothe judge to elevate other sentencing objectives to an equal or higher priority”. (para 104) [46] In brief, Friesen directs sentencing judges that there should be an upward departure from previous sentences for sexualoffences involving children. “To respect Parliament’s decision to increase maximum sentences, courts should generally impose highersentences then those sentences imposed in cases that preceded the increases in maximum sentences.” (para 100) [47] Having said this, the Court also noted that its comments on the seriousness of sexual offences against children, and theprimacy of denunciation and deterrence, is not a direction to sentencing judges that all other sentencing principles are to be ignored. [48] The Court stated at para 104: However, while s. 718.01 requires that deterrence and denunciation have priority, nonetheless, the sentencing judge retains discretion toaccord significant weight to other factors (including rehabilitation and Gladue factors) in exercising discretion in arriving at a fitsentence, in accordance with the overall principle of proportionality (see R v Bergeron, 2013 QCCA 7, at para. 37 ). [See alsopara 91] [49] At para 36 of Marchand the Court stated it is now well established that sexual offences against children caused significantharm.

The adverse impacts of sexual violence against children hinder normal social growth and can cause several lasting psychosocialproblems. When children are young, inexperienced, and still developing, the harms caused by even a single instance of sexual violencecan permanently alter the course of their lives.

Many survivors carry childhood sexual abuse with them throughout their adult hood, andit can permeate every aspect of their lives’. [50] At para 46 the Court notes that Parliament, in a series of legislative amendments has increased the penalty for child luring andthe sentences to be imposed must increase to give to Parliaments view of the offence’s gravity. (para 47) Parity [51]

Section 718.2(

b) provides that a sentence should be similar to sentences imposed on similar offenders for similar offencescommitted in similar circumstances. [52] Again, Friesen provides direction to trial judges on giving effect to the principle of parity. At paragraphs 32 – 33 the Courtstated: Parity and proportionality do not exist in tension; rather, parity is an expression of proportionality. A consistent application ofproportionality will lead to parity.

Conversely, an approach that assigns the same sentence to unlike cases can achieve neither parity norproportionality (R v L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at paras. 36-37; R v Ipeelee, 2012 SCC 13[2012] 1 S.C.R. 433, atparas. 78-79). In practice, parity gives meaning to proportionality. A proportionate sentence for a given offender and offence cannot be deduced fromfirst principles; instead, judges calibrate the demands of proportionality by reference to the sentences imposed in other cases.

Sentencingprecedents reflect the range of factual situations in the world and the plurality of judicial perspectives. Precedents embody the collectiveexperience and wisdom of the judiciary. They are the practical expression of both parity and proportionality. Other sentencing principles Consecutive sentences -Section 718.3(7) [53]

Section 718.3 (7) (

a) provides that a sentence of imprisonment imposed for an offence under

section 163.1 must be servedconsecutively to any sentence of imprisonment imposed for any other sexual offence against a child. Pursuant to this

section thesentence of imprisonment imposed for child luring must run consecutively to the sentence of imprisonment imposed for the offenceunder

section 163.1 (2). See also Marchand para 95 and 98. Comparator Cases [54] The Crown referred to the following authorities: R v Paradee, 2013 ABCA 41 [55] In Paradee, the Alberta Court of Appeal overturned an 18-month CSO and imposed a 12-month carceral sentence for luringand a six-month consecutive carceral sentence for accessing child pornography. The decision predates the sentencing guidance inFriesen.

[ 56 ] Mr. Paradee fostered a relationship with the victim over the course of a year, during which he had her masturbate on camera for him approximately ten times. He would also masturbate and tell the victim that he was doing so when he watched her (para 3). The communications here occurred over one day, did not involve the use of live video and involved less explicit sexual conduct. R v Collins, 2023 ABKB 134 [ 57 ] In Collins the offender received a 6.5-year sentence for luring two children to his home and having sex with them, one over the course of days, and the other over the course of weeks.

Justice Devlin stated in Collins at para 39 : [ 58 ] Notwithstanding the recent jurisprudential focus on the nature and severity of sexual violence against children, sentencing for these offences must continue to follow the prime directive of proportionality and engage a specific factual consideration of every individual offender and their unique circumstances: Criminal Code , 718.1, 718.2(a); Friesen , at para 30 ; R v Safarzadeh-Markhali , 2016 SCC 14 at para 70 ; R v Parranto , 2021 SCC 46 at paras 10-12 . [ 59 ] In considering the spectrum of relative seriousness in luring offences, the conduct in Collins is graver than the conduct here.

Further, Mr. Roy did not commit sexual interference. R v Murphy, 2023 ABPC 47 [ 60 ] In Murphy , the offender was sentenced to 20 months’ jail and two years’ probation for luring. The accused was indigenous, and the court gave weight to Gladue factors. There were several aggravating factors present in Murphy and that are not present here. Mr. Roy did not intend to meet with the victim, and the conversation occurred over a single day. In Murphy , the “offence was planned, [the offender] very determined, and [that] it took a long time and many messages to arrange the meeting where he was arrested”: para 52.

Further, the offences in Murphy involved two separate people representing themselves as 14-year-old girls. Defence comparators R v Massey, 2021 ABQB 146 [ 61 ] In Massey , the offender was sentenced to 3 months’ jail following conviction after trial for making and distributing child pornography consisting of words exchanged between him and someone he believed to be either a 13-year-old girl or an adult woman pretending to be a girl. He was 32 years old at the time of the offence and 36 years old at the time of the sentencing. He had no criminal record.

He lost his job and had to leave the small town where he lived as a consequence of the charges he faced. [ 62 ] The court noted the “making child pornography” conduct fell on the relatively less serious end of the spectrum (para 84), and the court would have “very likely” ordered a CSO if not for Parliament’s 2015 amendments to the Code . [ 63 ] There are parallels between Massey and the present case, and some differences. Mr. Massey was found not guilty of luring and faced only child pornography charges. In Massey , no explicit photographs were exchanged.

But the age gap is nearly identical, neither offender had a previous record, and both offenders lost their jobs and moved towns as a collateral consequence of their charges. In the present case, the conversation occurred over one day. In Massey , the conversations occurred over two days, about a month apart. R v Wall, 2023 ABPC 3 [ 64 ] In Wall , the offender was sentenced to a two-years-less-a-day CSO upon pleading guilty to luring. He had exchanged sexually explicit text and picture messaging with the victim, who was his then girlfriend’s younger sister, and asked her to meet him for sexual contact.

He was 22 years old and eventually reported his own behaviour to the Edmonton Police Service. The court noted that, unlike many other cases, no physical contact occurred between the offender and the victim (paras 57-59). The Court also stated that society’s paramountcy of protecting children does not mean that every offender who commits a sexual offence against a child must be incarcerated (paras 64-66). [ 65 ] There are significant mitigating factors in Wall absent in this case, including self-reporting to the police. However, unlike Mr.

Wall, who was trying to arrange to have sexual contact with his girlfriend’s little sister, Mr. Roy did not intend to meet up with the victim. R v Friesen , 2022 ABCA 147 [ 66 ] In Friesen (ABCA) , the Alberta Court of Appeal dismissed the Crown’s appeal of a conditional sentence order of 24 months less a day followed by 2 years’ probation imposed after a conviction following a guilty plea on one count of possession of child pornography (para 1).

The offender had uploaded six images and twenty-three videos of child pornography of girls who were between six and 13 years old; police found 102 child pornography images and 6 child pornography videos after investigation. The offender was 21, had a dysfunctional childhood, was sexually abused at a young age, had no criminal record, and lost a promising musical career because of the charge.

Aggravating and Mitigating Factors [67] It is statutorily aggravating under

Section 718.01 that the victim is under 18 years old. [68] In Friesen, the Supreme Court identifies the following factors as generally being especially relevant to proportionality: (

i) thelikelihood of re-offence; (ii) abuses of trust or positions of authority; (iii) the duration and frequency of the sexual violence involved; (iv)the age of the victim; and (

v) the degree of physical interference with the child.

Child luring [69] In Marchand the Justice Martin held that mitigating factors include a guilty plea, whether the offender has expressed genuineremorse and gained insight into the offence, whether the offender has taken counselling or treatment, lack of a prior record and thepersonal circumstances of the offender ( para 72 and 73) Aggravating factors include the nature and degree of grooming, the character ofthe communication including the duration and frequency, the substance of the communication such as whether the communication ismanipulative, demeaning, contains graphic sexual content(para 78) Encouraging a child to send explicit images of themselves or sendingexplicit images may be aggravating and increases moral blameworthiness.

Deceit such as lying about one’s age or intentionally choosinga platform that deletes images is aggravating para 81). Abuse of a position of trust is aggravating (para 82) The age of the victim can beaggravating with a wide gap in age increasing the moral blameworthiness of the accused (para 87) .

Making/possessing child pornography [70] In sentencing for possession of child pornography recent Alberta caselaw has referred to the aggravating and mitigatingfactors identified in R v Kwok, (ON SC) at para 7 (Kwok) (See e.g., R v Tadashore, 2022 ABPC 114; R v Downing,2018 ABPC 257). [71] The aggravating factors include: (

a) A criminal record for similar related offences; (

b) Involvement in the production or distribution of the material; (

c) The size of the collection; (

d) The nature of the collection; (

e) The extent to which the offender is seen as a danger to children; and (

f) Whether the offender has purchased child pornography and thereby contributed to the sexual victimization of children for profitas opposed to merely collecting it by free downloads from the Internet. [49] Mitigating factors include: (

a) The youthful age of the offender; (

b) The offender’s otherwise good character; (

c) The extent to which the offender has shown insight into his problem; (

d) Whether the offender has demonstrated genuine remorse; (

e) Whether the offender is amenable to, or has taken, counselling or treatment; (

f) The existence of the guilty plea, and (

g) The extent to which the offender has already suffered for his crime (impact on the family or community). [72] Alberta courts have also considered the “Oliver-Scale” in considering the nature of the child pornography possessed or madeby the accused. [73] The English Court of Appeal in R v Oliver, [2002], EWJ 5441 (“Oliver”), adopted a five-step categorization of childpornography. Canadian courts have applied this scheme to categorize the severity of child pornography. See for example: Wright, R vJonat, 2019 ONSC 1663, (“Jonat”) see also Tadashore. [74] [54] The scale adopted in Oliver is as follows: (

i) Images depicting erotic posing with no sexual activity. (ii) Sexual activity between children, or solo masturbation by a child. (iii) Non-penetrative sexual activity between adults and children.

(iv) Penetrative sexual activity between children and adults. (

v) Sadism or bestiality. Determining a fit sentence A ggravating Factors [ 75 ] In relation to the child luring offence the victim, TP, was 13 years old at the time of the offence, nearly 20 years younger than 32-year-old Mr. Roy. The wide age gap is aggravating. It is aggravating that Mr. Roy was deceitful, lying to TP that he was 23. It is aggravating that Mr. Roy encouraged TP to send him explicit images of herself and that he communicated on snapchat, a platform that deleted the images exchanged.

It is aggravating that police found a total of 102 chats (across various chat programs) in which either the recipient disclosed that they were underaged and Mr. Roy continued to have sexual related conversation with them, or Mr. Roy told the recipient(

s) that he wanted to or did have sexual encounters with underaged persons. [ 76 ] Although not mitigating there is an absence of several aggravating factors identified in Marchand . The communication with TP was brief lasting only one day. There is no evidence of extensive or prolonged grooming. The communication although highly blameworthy was not manipulative or demeaning to the same degree as found in Marchand . [ 77 ] In relation to the making of child pornography, the aggravating factors identified in Kwok are not present here. Mr. Roy did not distribute the images he received from TP.

There were only a few images. The images exchanged were at level 1 of the Oliver scale. [ 78 ] Similar to the child luring offence the twenty-year age gap is aggravating. Mr. Roy induced a child who was nearly 20 years younger than him to send naked pictures of herself. He achieved this through deceit and manipulation. Mitigating Factors [ 79 ] Mr. Roy has demonstrated remorse, through his guilty plea. Mr. Roy demonstrated some insight reflecting that he is sure he hurt the victim, and feeling extremely embarrassed by his actions, which he accepts he would have known were wrong at the time.

This mitigating factor is somewhat attenuated by the PSR writer’s observation that he “placed some of the blame on the victim,” although, as the Defence points out, that opinion is not explained or substantiated in the PSR. [ 80 ] Mr. Roy’s likelihood of reoffending is low. [ 81 ] Mr. Roy has expressed a willingness and intention to attend treatment and counselling, regardless of his sentence. This intention must be tempered by the fact that three years after the offence Mr.

Roy has not yet attended treatment or counselling, although he attributes this to not having the financial means to do so, which is consistent with his impoverished financial status as outlined in his PSR and FAOS Report. [ 82 ] Mr. Roy has a significant family support and Mr. Roy describes close relationships with his mother, father, brother, and maternal uncle. He resides with his mother and provides assistance to her. As noted earlier he has the ongoing support of his mother and stepfather. [ 83 ] Mr.

Roy has a relatively strong employment history, having consistently maintained employment for most of his adult life, including during much of the legal proceedings. which overlapped somewhat with the Covid-19 pandemic. Other Relevant Factors [ 84 ] Mr. Roy is a first-time offender. He has no prior criminal record. [ 85 ] The text message communications underlying the luring offence occurred over one day. Although this is not a mitigating factor it represents the absence of an aggravating factor which is present in many luring cases.

Compare for example Collins where the offender lured two children to his home and regularly had sex with them over the course of days or weeks, or Marchand where the communication consisted of grooming over a period of nearly seven months. The communication here occurred over one day. [ 86 ] The sentence imposed in Marchand was 12 months where the luring took place over nearly 7 months, there was extensive grooming, the communications were manipulative and demeaning, the victim was in Youth Protection and exceptionally vulnerable, and the offender exploited a pre-existing relationship of trust.

The gravity of the offence and the moral blameworthiness of the offender are considerably higher than the circumstances here. [ 87 ] In terms of the making of child pornography under

section 163.1(2) there were comparatively few images, and the images were at lowest range of the scale identified in Oliver . [ 88 ] In considering all the foregoing factor I find a fit sentence is 6 months for the child pornography offence under

section 163.1(2) and 8 months consecutive for the child luring offence under

section 172.1 (1) . Availability of Conditional Sentence Order

[ 89 ] The defence argues a lengthy and restrictive conditional sentence order can give effect to the primary sentencing principles of denunciation and deterrence while at the same time giving effect to secondary considerations of rehabilitation and restraint. [ 90 ] The Crown argues that primary sentencing objectives of denunciation and deterrence can only be achieved through a period of actual jail. [ 91 ] Under

section 742 a court may impose a conditional sentence order if it is satisfied that service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in

section 718- 718.2. [ 92 ] In R v Proulx 2000 SCC 5 the court held that the focus at the first stage of the analysis is “on the risk posed by the individual offender while serving his sentence in the community” Risk to the community [ 93 ] Mr. Roy has no prior criminal record. He has undergone of a series of forensic mental health assessments including a risk assessment using the child pornography offender risk tool CPORT. Mr. Roy has been found to have a low risk of future offending. [ 94 ] He has the support of both his mother and father.

He has full time regular employment and has a stable residence living with his mother. [ 95 ] I am satisfied that if Mr. Roy was to serve his sentence in the community, it would not endanger the safety of the community. CSO and Fundamental Purposes of Sentencing [ 96 ] The second issue is whether a conditional sentence order would be consistent with the fundamental purpose and principles of sentence he said that set out in

section 718- 718.2[122] [ 97 ] In Proulx , the Supreme Court provided direction on the approach to assessing whether a conditional sentence order would be consistent with sentencing objectives under the Criminal Code : 113 In sum, in determining whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing, sentencing judges should consider which sentencing objectives figure most prominently in the factual circumstances of the particular case before them.

Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration.

In determining whether restorative objectives can be satisfied in a particular case, the judge should consider the offender’s prospects of rehabilitation, including whether the offender has proposed a particular plan of rehabilitation; the availability of appropriate community service and treatment programs; whether the offender has acknowledged his or her wrongdoing and expresses remorse; as well as the victim’s wishes as revealed by the victim impact statement (consideration of which is now mandatory pursuant to s. 722 of the Code ).

This list is not exhaustive. 114 Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence.

Conversely, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of diminished importance, depending on the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to be served. [ 98 ] In Friesen , the SCC has confirmed that as the primary sentence objective in child sexual offences sexual offences is denunciation and deterrence, it is not open to sentencing judges to elevate other sentencing principles to an equal or higher priority. (para 104) However, “the sentencing judge retains discretion to accord significant to other factors...in accordance with the overall principle of proportionality”. [ 99 ] In Proulx the court stated that a Conditional Sentence Order with restrictive conditions can be a punitive sanction capable of achieving the objectives of denunciation and deterrence. (para 22) [ 100 ] Denunciation is “the communication of society’s condemnation of the offender’s conduct”. ( Proulx para 102 ). [ 101 ] In the same paragraph, the Court stated: “incarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration.

That said, a conditional sentence can still provide a significant amount of denunciation. This is particularly so when onerous conditions are imposed, and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances.” Exceptional circumstances [ 102 ] Some of the case law dealing with child sexual offence after Friesen suggest that “exceptional circumstances” must be present to permit a non- custodial sentence. The overarching principle in sentencing is that a sentence must be proportionate.

It may be that in many or most offences involving the sexual abuse of children a non-carceral sentence will not be a proportionate disposition. In this sense a CSO may be a rare disposition in child sexual offences. This is not the same thing as saying that a sentencing judge must find some exceptional circumstance for a CSO to be a proportionate disposition. As noted in Proulx there should be no presumption against a

conditional sentence for certain offences and the “sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence” (see helpful discussion on requirement for “exceptional circumstances” in R v AL, 2023 ABKB 374 ) Finding and Conclusion [ 103 ] In Proulx , the court stated that a conditional sentence order with restrictive conditions can be a punitive sanction capable of achieving the objectives of denunciation and deterrence. (para22) [ 104 ] At paragraph 102, the court stated:” incarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more lenient sentence in a jail term of equivalent duration.

That said, a conditional sentence can still provide a significant amount of denunciation. This is particularly so when onerous conditions are imposed, and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances.” [ 105 ] I am satisfied here that a restrictive CSO that is extended beyond a jail sentence of 14 months that otherwise might be imposed will give effect to the primary sentencing objectives of denunciation and deterrence.

At the same time other sentencing principles including principles of restraint for a first-time offender and principles of rehabilitation for an offender who has expressed a desire and willingness to pursue treatment and counselling would be more effectively achieved through a CSO. [ 106 ] For the foregoing reasons I impose a conditional sentence order of 2 years less one day followed by two years of probation. During the first 18 months of the CSO Mr. Roy will be subject to house arrest, followed by a period of curfew and other restrictive conditions, as set out at the sentencing hearing.

The lengthy term of the CSO and the 18-month period of house arrest is intended to give effect to the primacy of denunciation and deterrence. [ 107 ] Mr. Roy will be required to provide his DNA pursuant to

section 487. 051(1), there will be a SOIRA order for 20 years and an order under 161 on the terms set out at the sentencing hearing. Dated at the City of Calgary, Alberta this 30 th day of November 2023. G.D.M. Stirling A Justice of the Alberta Court of Justice Appearances: M. Kai P. Marcellus for the Crown M. Browne for the Accused