In the Court of Appeal of Alberta Citation: R v Love, 2024 ABCA 7 Date: 20240109 Docket: 2101-0064A Registry: Calgary Between: His Majesty the King Respondent - and - Michael Christopher Love Appellant Restriction on Publication Identification Ban – See the Criminal Code , sections 486.31 , 486.4 and 486.5 . By Court Order, any information that could identify the victims and witnesses must not be published, broadcast, or transmitted in any way.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. _______________________________________________________ The Court: The Honourable Chief Justice Ritu Khullar The Honourable Justice Jo'Anne Strekaf The Honourable Justice Elizabeth Hughes _______________________________________________________ Memorandum of Judgment Appeal from the Sentence by The Honourable Justice E.C. Wilson Dated the 12th day of March, 2021

( Docket: 190358788Q1) _______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: [ 1 ] The appellant, Michael Christopher Love, appeals his seven-year sentence imposed for six offences: child luring (two counts), invitation to sexual touching, making child pornography, possessing child pornography, and accessing child pornography.

After several pre-trial rulings, [1] the Crown’s case was admitted by an agreed statement of facts and the appellant was convicted. [ 2 ] For the reasons set out below, the sentence appeal is dismissed. Background Facts [ 3 ] Three of the appellant’s six convictions relate to the luring of a 12-year-old boy in England over the period of one year from November 2017 to December 2018. The appellant, who was 23 years old at the time, created a fictitious persona of a young girl. After repeated requests, he convinced the boy to make pornographic images and videos of himself and send them over the internet.

The activity was discovered by the boy’s father, traced by police to Canada, and then to email and social media accounts associated with a residence in Calgary where the appellant lived. A search of the appellant’s devices confirmed he was the person who had communicated with the English boy. [ 4 ] The agreed statement of facts provided: Mr. Love corresponded with [the boy] for approximately 20 minutes before requesting to see what he looked like. Mr. Love then requested specific images.

The requests progressed from images of his face, to images without a top, to images without his pants and finally images without underwear. [The boy] initially declined the requests but eventually relented under pressure of persistent demands. At the request and direction of Mr. Love, [the boy] sent approximately 10 sexually explicit images and 20 sexually explicit videos of himself to Mr. Love’s Instagram user account…and Kik Interactive account… Mr. Love asked for specific images and videos of [the boy] touching himself and masturbating. The last video [the boy] sent to Mr. Love was around December 3, 2018.

In exchange for additional nude images and videos, Mr. Love sent [the boy] images depicting female breasts and bum, holding them out to be [the fictitious girl]. … Mr. Love admits that the videos he directed [the boy] to make and send him, including the video [the boy's] father found, are child pornography within the meaning of the Criminal Code of Canada . [ 5 ] The second child luring conviction was founded on the search of the appellant’s electronic devices.

The appellant’s social media accounts showed that while portraying himself as a young girl between the ages of 12-15 years old, he solicited images from children that he knew were between the ages of 11-16 years old over the same one-year time period. [ 6 ] The search also revealed a collection of child pornography of approximately 49,072 images (21,147 unique) and 8,779 videos (6,644 unique), leading to charges of possessing and accessing child pornography.

The pornography collection was amassed over a five-year period; email correspondence revealed the appellant acquired some of these images and videos through trades with other individuals. The agreed statement of facts described the child pornography: The child pornography images Mr. Love accessed and possessed depicted mostly males, ranging from young infants to approximately 16 years old.

The bulk of the images and videos focused on young boys ranging from 8 to 14 years old posing, engaging in explicit sexual activity such as anal penetration, digital penetration, inserting objects in the anus, masturbating and fellatio, with adults and other children of the same and opposite sex. The images also depicted bondage of young children.

[ 7 ] At sentencing, the Crown sought a total sentence of seven and a half to eight years, while the appellant sought a sentence of five to six years. Relying on R v Friesen, 2020 SCC 9 , the sentencing judge imposed a total sentence of seven years imprisonment for the six counts. Grounds of Appeal [ 8 ] The appellant appeals his sentence on the basis that the sentence imposed does not “accurately reflect the unique circumstances” of the appellant.

The appellant argues that the sentencing judge erred by: 1. failing to properly analyse and consider the principles of parity and proportionality; and 2. improperly weighing mitigating factors. [ 9 ] The appellant seeks a two-year reduction in sentence. The Crown argues that the sentence is fit and there is no merit to the appeal.

Standard of Review [ 10 ] Appellate intervention is permitted where the sentencing judge erred in law or principle and that error impacted the sentence, or if the sentence is demonstrably unfit: R v Lacasse , 2015 SCC 64 at para 11 . [ 11 ] The weight afforded to mitigating factors is within the discretion of the sentencing judge and an appellate court may not intervene simply because it would have weighed the relevant factors differently: Lacasse at para 49 .

The weighing of mitigating factors forms an error of principle “[o]nly if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably”: Lacasse at para 49 ; Friesen at para 26 . Analysis [ 12 ] After the appellant was sentenced, the Supreme Court of Canada released R v Bertrand Marchand , 2023 SCC 26 where it applied the principles in Friesen to the offence of child luring.

Martin J, writing for the majority, explained that the inherent wrongfulness of luring arises from the wrongful sexualization of children and detailed the distinct psychological and development harms that are inflicted on young victims that differ from the harms arising from sexual contact initiated in person: Bertrand Marchand at paras 26-45 .

Martin J also explained that Parliament has mandated that sentences for luring must increase to reflect a growing awareness of the gravity of these offences, as well as the serious emotional and psychological harm they cause to the victims: Bertrand Marchand at paras 46-47 . [ 13 ] With the benefit of the Supreme Court of Canada’s guidance in Bertrand Marchand , we now turn to the grounds of appeal advanced by the appellant. Parity and Proportionality [ 14 ] The appellant argues that the sentencing judge erred when he found that the defence range of five to six years was too low.

The appellant argues that the sentencing judge relied on cases with dissimilar offenders, offences and circumstances which resulted in the sentencing judge inflating the sentencing range. The appellant says the appropriate range is four to six years imprisonment and his circumstances warrant a five-year sentence.

The appellant also argues that the sentencing judge wrongly discounted pre- Friesen authorities. [ 15 ] In Bertrand Marchand at para 47 , the majority re-iterated that “...courts should depart from dated precedents that do not reflect society’s current awareness of the impact of sexual violence on children in imposing a fit sentence ( Friesen , at para 110 ).” [ 16 ] In this case, the sentencing judge relied on Friesen to set out the principles of sentencing applicable to these offences (including proportionality, denunciation, and deterrence), the applicable mitigating factors, and the guidance that sentences must shift to reflect Parliament’s increase of the maximum sentences for these offences.

The sentencing judge articulated his understanding of the applicability of the increase of the maximum sentences vis-a-vis sentencing precedents, which predate the increases to the maximum sentences, this way: Stated another way, the Supreme Court [in Friesen ] has told sentencing judges that, henceforth, sentences as the Court described them are proportional to the gravity of the offence and the moral blameworthiness of an offender subject to any mitigating effect arising from personal circumstances. What then of precedent cases and the parity principle?

Shortly stated, it must be that precedent cases which are out of step with Friesen may not help inform proportional sentencing quantum. [ 17 ] We see no error. The sentencing judge did not discount all pre- Friesen authorities, rather he discounted only those precedents that are inconsistent with the principles in Friesen . [ 18 ] In assessing the appellant’s argument respecting parity and proportionality, it is important to recall that the appellant was

found guilty of three distinct grouping of offences, all of which involved children, and was sentenced to seven years as follows: 1. Count 1 (s 172.1(1)(a)) - Two years for luring children between the ages of 11-16 during a one-year time period for thepurpose of facilitating the commission of child pornography offences under s 163.1. 2. Counts 2 through 4 (s 172.1(1)(b), s 152, s 163.1(2)) – A total three-year sentence consecutive to count 1 for three offencesrespecting the 12-year-old boy in England which took place over the same one-year time period above.

Two years concurrent to count 1for luring for the purpose of facilitating the offence of invitation to sexual touching (s 172.1(1)(b); one year consecutive to count 1 forinvitation to sexual touching (s 152); two years consecutive to counts 1 and 3 for making child pornography (s 163.1(2)). 3. Counts 5 and 6 (s 163.1(4) and s 163.1(4.1) – A total of two years consecutive to the above counts.

Two years consecutiveto counts 1,3 and 4 for possessing child pornography over a period of five years (s 163.1(4)); two years concurrent to count 5 foraccessing child pornography over a period of five years (163.1(4.1)). [19] The mitigating factors accepted by the sentencing judge were: 1. The appellant had no prior criminal record; 2. The appellant had a difficult upbringing and endured discrimination and physical abuse; 3. The appellant was remorseful; 4. The appellant had made efforts to rehabilitate himself; and 5.

The manner in which the defence litigated the trial meant no witnesses, including the boy and his father, were required totestify. [20] The aggravating factors included: 1. The age of the English boy (see s 718.2(a)(ii.1)); 2. The age difference between the boy and the appellant; 3. The grooming of the boy including psychological manipulation; 4. The duration of the online communications all of which occurred in the boy’s home; 5. The sexually explicit demands and messages of the appellant to the boy and the repeated requests for sexually explicitimages and videos; 6.

The appellant’s trickery with respect to his age and gender; 7. The harm the offences caused to the boy who described self-harming during the time frame of the offences; 8. The harm these types of offences cause to children, their families and society as a whole; and 9. The size of the child pornography collection and the length of time over which it had been acquired and possessed. [21] In assessing proportionality, the appellant’s moral blameworthiness for all the offences is very high, but especially sorespecting the English boy.

As observed in Bertrand Marchand at para 35: The sexualization of children is itself morally blameworthy conduct. Luring invades a child's personal autonomy, sexual integrity, andgravely wounds their dignity (Friesen, at para. 51). Using any person as a means to an end is unethical, but an adult's manipulation of achild to satisfy their sexual urges is highly blameworthy conduct. It is for these reasons that luring is recognized as "manifestly harmfuland wrongful" (R. v. Misay, 2021 ABQB 485, [2022] 1 W.W.R. 145, at para. 52).

Even when the only interactions with the child occuronline, the offender's conduct is inherently wrong because it still constitutes a form of sexual abuse (R. v. R.S.F., 2021 MBQB 261, atpara. 91 ). While the degree of exploitation may vary from case to case, the wrongfulness of the exploitation of children isalways relevant to the gravity of the offence (Friesen, at para. 78).

The offences themselves are all serious offences, and the self harming by the boy speaks to the harm the offences engendered. [22] Considering proportionality and the other principles and objectives of sentencing, the facts of this case and sentencingauthorities, we do not agree with the submission of the appellant that the sentencing judge erred when he found that the defence range offive to six years was too low. Nor do we agree that the sentencing judge imposed a more punitive sentence than Friesen requires.Accordingly, this ground of appeal is dismissed.

Weighing Mitigating Factors [23] The appellant argues that the sentencing judge erred in principle by failing to give proper weight to mitigating factors and thatthis error had a direct impact on sentence. First, the appellant argues that although he did not plead guilty, the manner in which the trialwas litigated on an agreed statement of facts saved significant time and resources and the sentencing judge gave insufficient credit forthis factor despite acknowledging that it was mitigating.

Second, the appellant argues that the sentencing judge erred by failing to viewthe appellant’s age during the offences (20 to 24 years old) and his lack of criminal record as mitigating. And third, the appellantcontends that the sentencing judge erred by failing to mitigate sentence in response to violations of his ss 9 and 10(

b) Charter rights and

for other state misconduct that did not rise to the level of a Charter breach but was nonetheless illegal. [ 24 ] We do not accede to this ground of appeal. First, the sentencing judge’s reasons demonstrate that he understood the manner in which the appellant litigated the trial was a mitigating factor. Specifically, the trial judge said: Notwithstanding there was no guilty plea entered here, mitigation is warranted due to the manner in which the defence litigated this trial.

After being unsuccessful on all of his pretrial applications, the accused re-elected to judge alone and this trial proceeded upon a statement of admitted fact subsequent to which the accused invited me to convict. No witnesses were called. The young English boy and his father were not compelled to testify. The trial, such as it was, was concluded in about an hour after the Crown read in all of the admitted facts. The saving in court time of a 2 week trial and the conveniencing of the numerous witnesses who no longer had to testify cannot be simply overlooked especially in these COVID times.

I am satisfied that the manner in which the defence litigated this trial must be credited as a mitigating factor. See R v Yalahow 2015 ABCA 116 , at paragraph 11 . Indeed, if I did not, what would be the incentive for counsel to ever do this? With respect, both practicalities and realities warrant me to take the position that I do. I do not accept the Crown’s submission that less weight should be accorded because the case against the accused was overwhelming.

With respect, it only became overwhelming, in my opinion, after I ruled adversely on all of the accused’s pretrial Charter applications seeking exclusion of evidence. [ 25 ] In essence, the appellant is asking us to give this mitigating factor more weight.

However, as Lacasse says the weight afforded to mitigating factors is within the discretion of the sentencing judge and an appellate court may not intervene simply because it would have weighed the relevant factors differently. [ 26 ] Second, the reasons demonstrate the sentencing judge did accept that the appellant’s lack of criminal record as a mitigating factor. Further, we see no error in the sentencing judge’s finding that the appellant was not a youthful offender in that he was 26 years old at the time of sentencing and committed the offences between the age of 20-24.

This was a finding of fact he was entitled to make and deference is owed to it. In addition, this Court observed in R v Kollie , 2021 ABCA 389 at para 14 : Youthfulness is not an automatic mitigating factor with all offences. As summarized by C. Ruby, Sentencing (10th ed), (Toronto: LexisNexis, 2020) at §5.190: "As offences become more serious, particularly in crimes of violence, the mitigating effects of age decrease and deterrence goes to the forefront".

As observed earlier, all the offences for which the appellant was convicted are serious offences committed against children. [ 27 ] We turn to the last argument: the sentencing judge erred in not finding the violations of the appellant’s ss 9 and 10(

b) Charter rights [2] and other state misconduct that did not rise to the level of a Charter breach but was nonetheless illegal, were mitigating factors in this case. The appellant’s oral submissions went further than this; the appellant submits that the recent decision of R v Zacharias, 2023 SCC 30 has the effect of extending the duration of the appellant’s unlawful detention because the appellant’s arrest was unlawful, and therefore his unlawful detention continued until some later time in the investigation.

The extended duration of the unlawful detention supports his argument that the s 9 Charter breach was a relevant mitigating factor which must be considered in assessing the fitness of his sentence.

However, the appellant suggests there are not sufficient factual findings for this Court to examine this extended breach and therefore, we should set aside the appellant’s sentence and remit the matter back to the sentencing judge to sentence afresh. [ 28 ] The Crown submits there was no error made by the sentencing judge as a Charter breach does not necessarily warrant a reduction in sentence by a sentencing judge, relying on R v Nasogaluak, 2010 SCC 6 and R v Beaver, 2021 ABCA 227 at para 22 .

The Crown further submits the ultimate question for this Court is whether the appellant’s sentence is proportionate to the gravity of the offences and his moral blameworthiness – in other words, is it a fit sentence? While Zacharias has changed the law, the facts before us are sufficient to review the sentencing judge’s reasons on this point. The Charter breach was minimal in that the police were executing a valid search warrant at the time of the appellant’s unlawful detention and the search would have led to the appellant’s lawful arrest regardless.

It follows that the length of the Charter breach was in essence no different than what was conceded by the Crown at trial and considered by the sentencing judge. Therefore, the Charter breach does not undermine the sentencing judge’s reasons why he did not find the breaches to be mitigating.

The sentence imposed remains a fit sentence. [ 29 ] The background giving rise to this argument follows. [ 30 ] At the pre-trial applications, the Crown conceded the appellant was detained for seven minutes in his bedroom when Detective Jacobs came into the bedroom, spoke to the appellant, and obtained his name, e-mail address and other information. The appellant was not advised of his s 10(

b) Charter rights. The appellant argued that the detective could not rely upon the admission of the email address to ground a lawful arrest because it was obtained in breach of the appellant’s s 10(

b) Charter rights. The trial judge did not accede to this argument and found the arrest was lawful. [ 31 ] On appeal, the appellant argued the trial judge erred in concluding the arrest was lawful. However, this Court rejected the argument: R v Love , 2022 ABCA 269 . The appellant sought leave to appeal to the Supreme Court of Canada but was unsuccessful. [ 32 ] In Zacharias , the majority held at para 26 that “...police cannot rely on unlawfully obtained evidence in order to conduct a warrantless arrest.” Thus, in considering the duration of the Charter breaches, the issue is when did the officer have reasonable grounds

to arrest the appellant without utilizing the appellant’s email address. [ 33 ] The undisputed facts respecting the police investigation prior to March 19, 2019 (the date the police executed the search warrant at the appellant’s residence) and the execution of the search warrant, are set out in the agreed statement of facts and the trial judge’s reasons ( R v Love , 2020 ABQB 689 ). The agreed statement of facts provides: The Suffolk Constabulary obtained subscriber information and log in IP addresses for the Instagram account of…that communicated with [the boy].

The Instagram records were obtained on the basis of exigent circumstances as the Suffolk Constabulary believed children were actively being lured and threatened. The Instagram account of…had a registered email of " darkroom991@gmail.com ", a registration Internet Protocol address (IP address) of …. The subscriber information provided by Instagram included various IP addresses used to log into the account on various dates.

The investigation extended to Calgary, Alberta, after determining that the IP address of the account holder communicating with [the boy] was assigned to Shaw Communications, a Calgary Internet Service Provider. Detective Jacobs of the Southern Alberta Internet Child Exploitation Unit (SAICE Unit) assumed conduct of the investigation in December, 2018. Between December 2018 and March 2019, Detective Jacobs obtained three General Production Orders for subscriber information relating to the Instagram user account…and Kik Interactive account…as well as IP addresses used to communicate with the [boy].

Detective Jacobs also requested assistance from the Department of Homeland Security who issued an Administrative Subpoena to Google Inc. for the subscriber information relating to the darkroom991@gmail.com email address. … … On December 21, 2018, Detective Jacobs requested assistance from the Department of Homeland Securities in providing subscriber information associated to the darkroom991@gmail.com . Detective Jacobs received a response on January 18, 2019. The following results were provided: Subscriber name: Jake L.

Email address: darkroom991@gmail.com Secondary email: mrmicheallove@live.com Telephone number: … Last login in date: October 27, 2018 at 8:43:06 UTC Last login IP address: … [Emphasis original] [ 34 ] On March 12, 2019, Detective Jacobs received information respecting the name of the subscriber and their address, which was the Calgary address where Mr. Love resided. [ 35 ] A search warrant to search the above residence was obtained on March 14, 2019. [ 36 ] The execution of the search warrant was described by the trial judge as follows ( R v Love , 2020 ABQB 689 at paras 4-11 ): On March 19, 2019 Det.

Dean Jacobs with the assistance of the Calgary Police Service officers attended at a N.W. Calgary residence in order to execute a search warrant in relation to an investigation of child pornography and related offences committed through the use of the internet. The detective knocked and rang the door bell. A woman answered. The detective identified himself and explained the purpose of the police attendance. He was told there were 2 other persons in the residence – one upstairs and one-person downstairs named Michael. The detective entered at 7:18 AM and the other officers followed suit, attending to their

part in the search.

Det. Jacobs then went downstairs where he located the accused in bed. He was awakened. He appeared groggy. While the accused remained under the covers, the detective sat on his bed. He was dressed in clothing which said “Police” and he had a holstered side arm. The detective introduced himself and showed the accused the search warrant and told him he had a search warrant regarding child pornography offences. He asked the accused his name and received it. He asked the accused about certain internet user names which had come up in the investigation but the accused said he didn’t know anything about them.

The detective asked the accused for his email address. The accused provided it. Immediately the detective recognized that email address as a secondary email address related to the child pornography and associated offences he was investigating. The detective immediately arrested the accused at 7:25 AM and chartered and cautioned him at 7:26 AM. He was asked if he wanted to contact counsel and he replied “Yep, I would like a lawyer”. He was not questioned further about the investigation. Thereafter he was directed to get dressed, his inhaler was located and he was then taken outside and turned over to Cst.

Rees at 7:35 AM who drove the accused to the police district office arriving at 7:53 AM. [ 37 ] In addition, the agreed statement of facts provides: During the execution of the search warrant police observed the banner appear on Mr. Love's cellular telephone. The incoming message was to his "mrmichaellove@gmail" account.

The banner for the incoming message appeared automatically. [ 38 ] While no unlawful detention can be condoned, we agree with the submission of the Crown that the discoverability of the appellant’s identity and his lawful arrest was going to occur that morning regardless of his admission of his e-mail address during the search of the home. The facts that support this conclusion are these: 1. As of January 18, 2019, Detective Jacobs knew the secondary email address associated to darkroom991@gmail.com was mrmichaellove@live.com . What he did not know was the identity of the person using mrmichaellove@live.com . 2.

On March 12, 2019, Detective Jacobs knew the name of the subscriber and their address (the Calgary address). 3. The female that answered the door at the Calgary address advised Detective Jacobs two other people were in the house and one was named Michael. 4. The appellant identified himself as Michael Love. 5. During the execution of the search warrant police observed a banner automatically appear on Mr. Love’s cellular telephone.

The incoming message was to his mrmichaellove@gmail account. [ 39 ] On these facts, it is clear that Detective Jacobs had reasonable grounds to arrest the appellant immediately upon learning his name. Thus, the s 9 Charter breach was no longer than the Crown conceded at trial and no different than what was before the sentencing judge. [ 40 ] The sentencing judge articulated why he did not find the breaches to be mitigating: The accused seeks mitigation of sentence due to the

section 9 and

section 10(

b) breaches at the time of arrest. However, the statement from the accused flowing out of those breaches was not sought by the Crown to be entered as evidence due to those breaches. Thus, the Crown argues that those breaches have already been remedied. I agree. Further, there is nothing here that is so egregious as to warrant some sort of additional credit inuring to the accused’s benefit. Nor will I mitigate punishment due to the evidence of the accused’s email address I found to have been illegally obtained in the US by a Homeland Security representative.

For the reasons I then gave, I did not rule this evidence to be inadmissible, nor to be excised from any Informations to obtain general production orders. There was no suggestion the Canadian police officers were aware of the illegality.

And the testimony before me was that even in a US trial, this US evidence would have probably been admissible. [ 41 ] As this Court said in Beave r at para 22 : “...while the Supreme Court of Canada in R v Nasogaluak , 2010 SCC 6 , [2010] 1 SCR 206, provides that state misconduct may be considered among the relevant factors in crafting a fit and proper sentence, there is no requirement that a reduction in sentence result from a Charter breach.” The fact the sentencing judge did not find the conduct warranted a reduction in the appellant’s sentence does not create an unfit sentence warranting appellate intervention.

Conclusion

[ 42 ] The appeal is dismissed. Appeal heard on December 12, 2023 Memorandum filed at Calgary, Alberta this 9th day of January, 2024 Authorized to sign for: Khullar C.J.A. Strekaf J.A. Authorized to sign for: Hughes J.A. Appearances: R.S. Dhillon for the Respondent P.J. Milczarek for the Appellant